BCAJ | Bombay Chartered Accountant Journal

PART C: Information on & Around

Professional Information seekers:

In
a bid to ward off the alleged menace of “professional RTI
complainants”, four assistant commissioners of the BMC have adopted a
strategy. These officers, posted guards and got CCTV cameras installed
at various ward offices to check their entry into the premises.

These professional complainants have lodged their grievances on building violations at least 200 times in more than four wards.

Assistant
commissioners termed this as a moneymaking venture. “This has become a
business for them (professionals). They lodge complaints and extort
money from people. They try to create an atmosphere of fear by either
threatening the civic officials or the people.”

An advocate,
named and shamed in a list of “professional RTI complainant
(extortionist)”, prepared by the Brihanmumbai Municipal Corporation, has
been vindicated after the civic body apologised, saying that his name
had been wrongly included in the list.

“It is humiliating for me
to be branded as a professional complainant. I complained about this to
the BMC chief and the state’s chief information commissioner,” said
advocate, Pankaj Pande.

The BMC then gave a clean chit to Pande stating that his name was included in the list by mistake.

RTI Activists not dead:

AAP
Chief Arvind Kejriwal’s obituary reference to four RTI activists at a
large public gathering in Ahmadabad left his supporters red-faced as
three of them are alive.

He said the four were killed for asking
awkward questions and hailed them as martyrs for the cause of society.
Kejriwal got the first victim’s name right, Amit Jethava, who was killed
outside the high court, the other three- Bhagu Dewani (Porbandar),
Minakshi Goswami (south Gujarat) and M Bhambhani (Diu)-in fact survived
attacks provoked by their activism.

Sanjay Dutt’s parole:

The
Yerwada jail authorities have refused to disclose details of Sanjay
Dutt’s parole to an RTI applicant, saying the actor had requested that
the reasons supplied in his application for parole be kept private.

Oshiwara
resident, Ramesh Patil, had made an RTI application to the jail in
October last year, asking to know the specific illness for which Dutt
was granted a 14-day furlough in September, which was extended by
another two weeks.

The jail’s reply to Patil also said that Dutt
was a “third person” and that Patil had nothing to do with the actor,
and had no locus standi to ask for details of the actor’s parole.

This
forced Patil to move the Appellate Officer for RTI at the jail;
expressing his objection to the unsatisfactory reply he was given.

Following
this, Patil was called for an RTI hearing on 11th February at Yerwada
jail. At the hearing, the authorities merely repeated what they had
communicated to him earlier. According to Patil, he was also shown a
letter allegedly written by Dutt requesting that his personal details be
kept private from unknown persons.

“Dutt is not a third person
but a convicted criminal undergoing punishment in jail; how can the jail
authorities say he is a ‘third person’? On 21st March, when Dutt is due
to return to Yerawada Central Jail, he would have spent 118 of his 305
days of imprisonment-almost 40% of the time he is supposed to serve
either on furlough for the treatment of his leg pain, or on parole
sought citing his wife Manyata’s illness. This clearly means any convict
can now write a letter and can escape from imprisonment, and if this is
the law, then I think it needs to be amended immediately,” Patil said.

levitra

BCAJ Admin

PART B: RTI Act , 2005

RTI & CPA:

A City consumer forum has ruled that Complaints on RTI cannot be entertained under the Consumer Protection Act.

RTI & Political Parfies:

Political Parties, including the Congress and BJP, have ignored a four-week deadline set by the Central Information Commission (CIC) and could be liable for Rs. 25,000 fine or even de-registration.

The Commission had issued a showcause notice on 7th February to six national political parties – Congress, BJP, NCP, BSP, CPI and CPM – seeking an explanation on why they had not complied with its 3rd June order which mandated that the six parties came under the Information Act and must appoint public information officers to respond to RTI queries.

A full bench of the Commission had declared that the six political parties were substantially funded indirectly by the Central Government and they had the character of public authority under the RTI Act as they performed public functions.

The Commission had given them six weeks to comply with the RTI Act but so far none of the parties has followed the direction, prompting RTI activist Subhash Agrawal, who was one of the petitioners in the case, to file three non-compliance complaints before it.

Agrawal said the Commission should hold an early hearing and recommend stringent action, including deregistration of the parties, by the Election Commission.

The CIC can also fine the parties up to Rs. 25,000. The CIC inaction has been preceded by the government bringing a bill to exclude political parties from the ambit of RTI Act. Though the bill was tabled in Lok Sabha and received support from a House panel, it was finally not taken up.

The stringent opposition to “weakening” the Act and the message that political parties were against transparency led to the bill being put on hold. However, the CIC has dragged its feet in taking any action against parties clearly in violation its own order. (Courtesy: Times of India dated 10-03-2014)

Congress Manifesto:

Congress will release its election manifesto on 21st March; a document that the party believes will win it votes in the tough battle. Sonia Gandhi is scheduled to release the manifesto in the company of her son, Rahul.

One key issue is of reservation in the private sector, a poll promise from Congress in UPA-2. Congress also wants to hammer home its rights based approach like RTI, NREGA, etc., by promising those on health, pension and sanitation.

Maharashtra Information Commission:

With the appointment of new IC, Maharashtra now has 7 IC as under:

Maharashtra Information Commissioners

1. Ratnakar Gaikwad – Chief Commissioner, Mumbai
2. Ravindra Jadhav – Amravati
3. D. B. Deshpande – Aurangabad
4. Ms. T. F. Thekekara – Konkan
5. Ajitkumar Jain – Greater Mumbai
6. P. W. Patil – Nasik
7. M. H. Shah – Pune

levitra

BCAJ Admin

PART B: RTI Act, 2005

PEOPLES ’ MONITORING OF THE RTI REGIME IN INDIA 2011-13 RTI Assessment and Advisory Group (RAAG) Samya Center for Equity studies (SAMYA ) have published in October 2014 the work titled “PEOPLES’ MONITORING OF THE RTI REGIME IN INDIA: 2011-13.

Briefly looking into the contents of the above work, running into 177 pages of 11 chapters & 10 annexures, as noted in BCAJ December issue, I plan to serialise it and cover 1 & 2 chapters in each issue. In the last issue, chapter 1 was summarised. Hereunder is a summary of chapter 2:

METHODOLOGY:
Data Collection:

• Primary data collection through individual inter views:
A s a part of the Peoples’ RTI assessment 2011- 13, a total of 2,279 persons were individually interviewed across four states and the National Capital Region of Delhi.

• Primary data collection through street corner interviews:
2,000 people were individually interviewed in the capitals of the four sample states, and in Delhi.

• Primary data collection through focus group discussion:
In addition, a total of 95 focus group discussions (FSGs) were also organised.

• Primary data collection through focus public hearings:
A s part of the nationwide assessment on the implementation of the RTI Act, public hearings (PHs) were organized in the four sample states and in Delhi to documents peoples’ experience of using the RTI Act. The PHs were organised in collaboration with the state partners.

• Primary data collection through inspections:
Across the country, 69 public authorities and offices were inspected as a part of this assessment.

• Primary data collection through filing RTI applications:
Specifically, 462 RTI applications were filed and followed up with PIOs to get basic information from various public authorities across the country.

Data Analysis:

• Analysis of replies received to RTI applications:

Copies of 2,743 RTI applications were received from four states, the union territory of Delhi, and the Central Government, in response to the earlier mentioned RTI application filed with various public authorities.

• Analysis of published material:
Relevant papers, articles, studies and assessments on India and about other countries were identified and assessed for possible inputs into the design of methodology and process for this assessment. These have also been used to develop national and international contexts in which the findings of this assessment can be located.

• Analysis of the official websites of all ICs:
An analysis of the official websites of all ICs was undertaken with a view to ascertain whether the websites provide relevant and updated information on the functioning of the ICs, including number of commissioners in each commission, orders passed by the commissions, and their annual reports.

• Analysis of the official websites of PAs: T o check compliance with provisions of proactive disclosure, the websites of 30 public authorities were analysed.

Specially, the Peoples’ RTI Assessment 2011-13 sought to survey and otherwise access information from the following key RTI stakeholders:
Citizens
Applicants and appellants
Public Information Officers
Public Authorities

Scope and Sampling:
• States: T he assessment covered four states across the country, and the National Capital Region of Delhi. In each state, the state capital and two districts were surveyed.

• Public Authority:
A total of 69 public authorities (PAs) were surveyed across the country, by visiting them. Of these, 10 were from the Central Government, and four each from each of three states and one UT, and three from Bihar (total 19 – as permission to survey Bihar HQ police was not granted). In addition, in four states and one UT, four PAs were surveyed in each of the two sample district. This made it a total 40 PAs in ten district headquarters.

• Applicants:
A total of 192 applicants were interviewed as a part of this assessment. Of these, 12 were from rural areas and the remaining 180 were from urban areas. The rural applicants were identified by the rural field teams during their visits to the sample villages especially through the focus group discussions, and all the applicants identified, available and willing to talk to the team, were interviewed, irrespective of which PA they had applied to for information.

levitra

BCAJ Admin

PART A: Decision Of CIC & High Court

Right of appeal to whom?
On 5th December, 2014, the Delhi High Court passed an order in a writ petition: R.K. Jain vs. Chairman, Income Tax Settlement Commission (ITSC) & others. The issue was whether ITSC, a Public Authority, has right to appeal to Information Commission.

Delhi High Court held as under:

The impugned order is set aside. However, it will also be open for the respondent (ITSC) to approach the CIC to assail the orders dated 26-09-2013 and 21-10-2013 passed by respondent no. 2(PIO) and respondent no. 4 (FAA ) respectively. 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 is accordance with law.

[R. K. Jain vs. Chairman, Income Tax Settlement Commission & ors. in W.P. (C) 2939/2014, Delhi High Court Single Judge]

My Note: RTI activists are divided on the correctness of this order. One view is that Public Authority has no right to appeal to CIC [just like IT department (Assessing (AO) or CIT) has no right to appeal against the order of AO].

This view is held by Venkatesh Nayak, Programme coordinator of Commonwealth Human Rights Commission. His detailed analysis is as given below:

An Analysis of the Delhi high court order

1. Basic Facts:
1.1 In 2013, Mr. R. K. Jain, the Petitioner, sought some information under the Right to Information Act, 2005 (RTI Act) from the Income Tax Settlement Commission (Respondent #1) established under the Government of India. The information was in respect of disposal and pendency of matters before that public authority.

1.2 In September 2013, the Central Public Information Officer (CPIO) and Joint Commissioner of Income Tax passed an order furnishing the Petitioner, some of the requested information while denying other categories of information.

1.3 Aggrieved by the PIO’s refusal to furnish all the information sought in the RTI Application, the Petitioner submitted a first appeal under the RTI Act. The First Appellate Authority (FAA ) issued an order in October, 2013 partially allowing disclosure of some information which had been denied by the CPIO.

1.4 The Petitioner sent a letter to the Public Authority, two days later, demanding compliance with the FAA ’s order. Later in March 2014, he sent another reminder demanding that the information be disclosed as per the FAA ’s order. Less than a week later, the Petitioner received a communication from an officer of the public authority informing him that Respondent #1 had passed an order setting aside the order of the FAA and the CPIO on grounds of non compliance. The Petitioner challenged this action of Respondent #1 of passing an administrative order annulling the orders of the CPIO and the FAA , before the Delhi High Court through the instant Writ Petition.

2. J udgement of the Hon’ble Delhi High Court with Reasons:

2.1 T he Hon’ble Delhi High Court ruled that orders such as those passed by the CPIO and the FAA in exercise of their statutory powers cannot be declared as a nullity or void through an administrative order. The Court cited a couple of judgements to hold that even if an order is a nullity, it would continue to be effective unless set aside by a competent body or Court. It held that the Respondent was not authorised under the RTI Act to interfere with the orders passed under the RTI Act. The order issued by Respondent #1 was set aside.

2.2 The Court however left it open to Respondent #1 to approach the Central Information Commission (CIC) to assail the orders of the CPIO and the FAA . The Court held as follows:

“13. … Needless to mention that is 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.”

3. A Critical Analysis of the Decision and the Reasoning:

3.1 The Court’s decision to set aside the administrative order issued by the Respondent holding the orders of the CPIO and the FAA a nullity on account of non compliance is to be welcomed. Henceforth, any officer of a public authority having no statutory authority under the RTI Act will not be able to interfere with the process furnishing information under the RTI Act after a matter has been decided by the CPIO or the FAA .

3.2 H owever, it is respectfully submitted that the Court’s direction to the Respondent to approach the CIC amounts to creating a right of appeal which is contrary to the scheme of appeals provided for in Section 19(1) of the RTI Act. Before putting forth our detailed reasons for arriving at this opinion, it is necessary to point to a similar order of the Hon’ble Andhra Pradesh High Court (APHC) which seeks to create a right of appeal for the public authority under the RTI Act.

3.3 In the matter of Public Information Officer, Under RTI Act, Syndicate Bank, Regional Office, Mugulrajapuram, Vijayawada vs. Central Information Commission under Right to Information Act, New Delhi Etc., [2012 (2) ALT 348], the APHC ruled as follows:

“7. … in the opinion of this Court, the Public Information Officer cannot dawn [sic] the role of the Officer of the Public Authority in relation to orders passed by the appellate authorities against orders passed by him. If his order is reversed by the appellate authority, he cannot be treated as aggrieved party giving rise to a cause of action for him to question such Orders. It is only either the public authority, against whom the directions are given, or any other party, who feels application at hand. Aggrieved by such directions, that can question the orders passed by the appellate authorities.” [emphasis supplied]

3.4 The effect of the two judgments cited above is that a right of appeal is created for a public authority to challenge a decision of its own PIO or FAA before the CIC (or by logical extension before any other State Information Commission that may have jurisdiction in a given case).

3.5 In our humble opinion, Parliament had never intended for the appeals scheme to be used by other officers of a public authority to challenge the orders of their own PIO and FAA. Our detailed reasons are given below:

(I) Reason I, in our opinion, the two stage appeal process is created u/s. 19 of the RTI Act for the use of an aggrieved RTI applicant or any person who may be treated as a third party to an RTI application/ appeal. The relevant provisions are reproduced below:

“19. (1) Any person who, does not receive a decision within the time specified in sub section (1) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or State Public Information Officer as the case may be, in each public authority: …

(2) Where an appeal is preferred against an order made by a Central Public Information Officer or a State Public Information Officer, as the case may be, u/s. 11 to disclose third party information, the appeal by the concerned third party shall be made within thirty days from the date of the order.

(3) A second appeal against the decision u/s/s. (1) shall lie within ninety days from the date on which the decision should have been made or was actually received, with the Central Information Commission or the State Information Commission: …”

The scheme of section 19 is crystal clear leaving no room for ambiguity. Only two categories of persons may challenge the decision of a PIO a) an aggrieved RTI applicant and b) a third party who is aggrieved by a PIO’s decision to disclose information pertaining to he/she/ it which is treated as being confidential by that third party. the PIO is statutorily empowered u/s. 5(4) read with section 5(5) of the RTI act to seek the assistance of any other officer of the public authority to perform his/ her appointed functions under the act. So, any reservations or reasons that other officers of that public authority might have against disclosure of the information sought by an RTI applicant must be placed before the Pio to arrive at a reasoned decision. Such reservations and reasons against disclosure are not binding on the Pio who is required to make a decision by applying his/her own mind to the RTI application at hand.

Further, section 19(1) only permits an aggrieved RTI applicant to submit a first appeal to an FAA on two grounds only, i.e., if no decision has been received from the Pio or if he is aggrieved by a decision of the Pio, namely, rejection of the request or partial disclosure. a third party to an RTI application may also submit a first appeal to the FAA u/s. 19(2). So, in our opinion, the scheme of the first appeal process does not contemplate any other right of appeal vesting in any other person including any other officer of the public authority.

Further, the opening line of section 19(3) is crystal clear it refers to a second appeal and not a fresh appeal against a decision made u/s. 19(1). in other words, an appeal that may be submitted against the faa’s order by the aggrieved RTI applicant or an aggrieved third party. It is not open for any other person including any officer of the public authority such as the concerned Pio to approach the concerned information Commission challenging the order of the faa. So in our opinion, a public authority does not have any right of appeal at the first or second appeal stage u/s.19 of the rti act.

(ii) Reason ii, the PIO is a serving officer of a public authority designated to perform the statutory duties of receiving an rti application and making a decision whether or not to disclose any or all of the requested information. Next, the FAA is an officer senior in rank designated by the said public authority to examine the correctness and validity of an order passed by the Pio. in effect, both officers are acting on behalf of the concerned public authority, even though they may be performing administrative or quasi judicial functions while making a decision on an rti application or appeal. in a complaint or second appeal submitted to the relevant information Commission, the PIO and the FAA appear as representatives of the public authority which appointed them. the RTI rules, 2012 notified by the Government of India do permit any other officer to represent the public authority in a second appeal proceeding along with or in lieu of the PIO or the FAA. 4 however nothing in the RTI act or the RTI rules, 2012 recognize the right of any other officer or the public authority itself to challenge a decision of its own Pio or faa through the appeals process. The only course of action available to a public authority to demand the setting aside of an order of the CIC is the route of judicial review by invoking the writ jurisdiction of the concerned high Court under article 226 of the Constitution. to hold that the public authority or any of its officers may challenge an order of their own Pio or faa amounts to acknowledging that the statutory authorities under the RTI act were not provided the required assistance at the application/first appeal stage for the Pio or the faa as the case may be to arrive at a reasoned decision. The failure of the public authority cannot be used as a ground for creating a right of appeal which was not originally contemplated by Parliament when it enacted the RTI Act.

(iii) Reason iii, there is authority to support the above opinion expressed by us. in the matter of Chief Information Commr. And Another vs. State of Manipur and Another [(2011) 15 SCC 1], the hon’ble Supreme Court of india explained the scheme of appeals provided for in the RTI Act in the following words:

“35. Section 19 is an appellate procedure and a person who is aggrieved by refusal in receiving the information which he has sought for can only seek redress in the manner provided in the statute, namely, by following the procedure under Section 19. This Court is, therefore, of the opinion that Section 7 read with Section 19 provides a complete statutory mechanism to a person who is aggrieved by refusal to receive information. …

42. Apart from that the procedure under Section 19 of the Act, when compared to Section 18, has several safeguards for protecting the interest of the person who has been refused the information he has sought. Section 19(5), in this connection, may be referred to. Section 19(5) puts the onus to justify the denial of request on the information officer. Therefore, it is for the officer to justify the denial. …

43. There is another aspect also. The procedure under Section 19 is an appellate procedure. a right of appeal is always a creature of statute. A right of appeal is a right of entering a superior forum for invoking its aid and interposition to correct errors of the inferior forum. It is a very valuable right. Therefore, when the statute confers such a right of appeal that must be exercised by a person who is aggrieved by reason of refusal to be furnished with the information.” [emphasis supplied]

Nowhere in its detailed explanation of the scheme of section 19 does the Hon’ble Supreme Court recognise the right of a public authority to any of its officers to challenge a decision of their PIO or FAA made under the RTI Act.

(iv) Reason iv, the manner of recognition of the right of a public authority or any of its officers to appeal against a decision of the designated PIO or FAA amounts to recognising a right that the public authority or its public officers may have in the information sought by the RTI applicant (except where the information is personal information of the concerned officers whose disclosure may cause unwarranted invasion of their privacy). In the matter of Union of India vs. Namit Sharma [(2013) 10 SCC 389] the Supreme Court explained the nature of an RTI-related dispute in the following words:

“21. In the judgment under review, this Court after ex- amining the provisions of the act, however, has held that there is a lis to be decided by the information Commission inasmuch as the request of a party seeking information is to be allowed or to be disallowed and hence requires a judicial mind. But we find that the lis that the information Commission has to decide was only with regard to the information in possession of a public authority and the information Commission was required to decide whether the information could be given to the person asking for it or should be with held in public interest or any other interest protected by the provisions of the Act. The information Commission, therefore, while deciding this lis does not really perform a judicial function, but performs an administrative function in accordance with the provisions of the act.” [emphasis supplied]

In deciding an appeal under the RTI act neither the FAA nor the information Commission is making a determination about the right that a public authority orany of its officers may have (except personal information of an officer whose disclosure may cause unwarranted invasion of his/ her privacy) in the information sought. A public authority is only a custodian of the information that it holds in material form which is an extension of its legally appointed role as the custodian of the public interest. All that the public authority is permitted to do is to put forth arguments regarding the public interest that must be protected by keeping the information confidential. This too must be done in the course of the first appeal or second appeal submitted by an aggrieved RTI applicant. The RTI act does not recognise any special right of either the public authority or any of its officers with regard to the information under dispute (except when it is personal information whose disclosure will cause unwarranted invasion of the privacy of an individual) which can be protected by invoking the appeals procedure provided u/s. 19.

4. Conclusion: in light of the foregoing critical analysis it is respectfully submitted that there is a strong case for challenging through appropriate proceedings, the directive of the Delhi High Court as well as the Andhra Pradesh High Court regarding the right of a public authority or any of its officers to invoke the appeals process against an order of disclosure of information made by their PIO or FAA under the RTI Act.

Against the said analysis and view, many other RTI activists hold the view that Public authority has a right to appeal to the Central information Commission.

Let us see when ITSC appeals to CIC, what view CIC holds or when R.K. Jain files appeal against the above delhi high Court order what the Supreme Court rules.

BCAJ Admin

PART C: Information on & Around

BMC’s reluctance to provide information:

A classic case of efforts by Brihanmumbai Municipal Corporation (BMC) officials to dissuade citizens from seeking details under the Right to Information (RTI) Act has come to light.

On 3rd September, Aftab Siddique, prominent activist from Khar, sent an RTI request to the municipal commissioner, seeking information about the number of Ganpati mandal permissions this year.

The commissioner’s office replied on 10th September, directing her to apply to the deputy commissioners. The deputy commissioner (removal of encroachment) and deputy commissioner Zone II.

Accordingly, she applied to both the deputy commissioners. The deputy commissioner (removal of encroachment) Anand Wagralkar informed her on November 8 that, as per a circular issued by the BMC, the information can be had only from the deputy commissioner Zone II, Kishore Kshirsagar.

Kshirsagar is the nodal officer for all matters related to Ganesh mandals.

Instead of collating the necessary information from the ward officers and providing it to Siddique, Kshirsagar gave copies of her application to all the 24 ward officers of Greater Mumbai. Siddique was shocked when 10 of the ward officers called her the same day – on 27th November.

“How am I supposed to be present at 10 ward offices the same day? This is nothing but an effort to sabotage my RTI, Kshirsagar has failed in his duty to obtain the information and pass it on to me,” she added.

Kshirsagar was unavailable for comment. His office said he was busy on a tour of the wards in zone II. Siddique said she wanted the information since several illegal Ganesh pandals were put up.

The spirit of the RTI Act is destroyed by such hostile attitude. Even though Kshirsagar may not be the primary Public Information Officer (PIO) under the law, he could have easily parted with the information, which must have been with him in his capacity as the nodal officer for Ganesh mandals.” she observed

Section 8 (1) (h) of the RTI Act:

The Prime Minister’s Office has refused to disclose communication exchanged between former Prime Minister Atal Bihari Vajpayee and Gujarat Chief Minister Narendra Modi during the 2002 Gujarat riots even after 11 years.

Responding to an RTI application, the PMO cited section 8(1) (h) of the RTI Act, which exempts information that would impede the process of investigation or apprehension or prosecution of offenders.

The PMO did not give any reasons as to how disclosure of the information would attract section 8(1) (h) of the RTI Act even though the Delhi High Court has made it clear that cogent reasons must be given while denying information under the clause.

Section 2(h) of the RTI Act:

The Supreme Court has admitted ADAG Relianceled power distribution companies’ appeals seeking quashing of the Orissa High Court order that declared them as ‘public authorities’, thus bringing them under the purview of the RTI Act.

Reliance Infrastructure owned three discoms, engaged in the distribution and retail supply of Electricity in 23 districts of Orissa since 1999, had challenged the order arguing they are exclusively private bodies, and not public authorities within the meaning of section 2 (h) of the RTI Act, 2005.

levitra

BCAJ Admin

PART B: RTI Act, 2005

Withdrawals of the Orders of CSIC:

State information commissioner Ratnakar Gaikwad on 4th December withdrew an order issued last month that imposed certain qualifications on obtaining building plans approved by the BMC under the Right to Information (RTI) Act.

Gaikwad said the latest decision was taken “with a view to avoid confusion and practical difficulties in securing information about building plans”. Nonetheless, he urged that caution be exercised when demands for the plans of public utilities or buildings are made. “The authorities must consider if there may be some danger to national security or public safety if these plans are given.” If the answer is yes, the requests in such cases “should be declined as per the provisions of the RTI Act”.

This was the second time Gaikwad withdrew an order on the issue. Following criticism, an order dated 26th September was cancelled on 21st November and a new one issued. But that too met with disapproval. “The language and structure of both the orders perhaps made them look like blanket ban on disclosure of information relating to building plans, which was never the intention of the Commission and the Commission expresses regrets for it,” said Gaikwad.

While explaining the rationale behind the September order, Gaikwad said it was not taken suo motu. “Subhash Desai (Shiv Sena MLA) wrote to the Commission pointing out serious lapses committed by PIOs while furnishing information about building plans and violations of sections 8(a,d), 9 and 11 of the Act, which were dangerous for the country’s security.”

Desai enclosed news items that described how Maoists, through proxies, obtained information under RTI in Jharkhand and misused it for extortion, leading in some cases to the killing of contractors. The MLA requested the Commission not to provide information on public buildings. “Since the Commission was of the same opinion, an order was issued on 26th September.”

• Ms. Sushma Singh is appointed as chief central Information Commissioner w.e.f. 19-12-2013 Now the strength of the Commission is 9 memberschief CIC and 8 Information Commissioners as under:

• Shri Rajiv Mathur
• Shri Vijai Sharma
• Shri Basant Seth
• Shri Yasovardhan Azad
• Shri Sharat Sabharwal
• Mrs. Manjula Prasher
• Shri. M. A. Khan Yusufi
• Prof Madabhushanam Sridhar Acharyulu.

levitra

BCAJ Admin

PART C: Information on & Around

Travel on Delhi Buses:

Data accessed through RTI has revealed that around 600 drivers of Delhi Buses are reportedly colour blind but are in service with the help of fake medical certificates. The issue has been highlighted by Information Commissioner M. Sridhar Acharyulu to Delhi CM Arvind Kejariwal.

RTI extortionists

The Brihanmumbai Municipal Corporation (BMC) has prepared a list of 77 regular complainants who file bulk applications under the Right to Information (RTI) Act, seeking details of building plans to allegedly extort money from property owners.

The P-North Malad ward office has compiled a list of individuals who send RTI applications seeking details of under-construction or existing buildings and shops. Ward officials have received complaints from shop-owners that these applicants then demand money from them or threaten them with action.

“Minor irregularities such as putting up a grill or extension of a shop’s entrance by a few feet can be demolished by the BMC or regularized after paying a penalty. But these professional complainants extort money in exchange of a promise that no BMC action will be initiated on the structure,” said a civic official from the ward.

Worse, in case ward officials initiate action against the structures, these very complainants write to politicians and municipal commissioners against their initiative.

He added that while RTI is a useful tool, several individuals have started misusing it. “We conducted this exercise since it is getting difficult for us to differentiate between genuine RTI applications and frivolous ones. After the list was prepared, these 77 people have stopped sending in their application.”

Pay Rs. 55.43 lakh to get information!

Two senior regional transport officials in Thane face disciplinary action for demanding a “fee” of Rs. 55.43 lakh for providing information that is supposed to be given out free of cost under the Right to Information Act.

The complainant, Anil Mahadik, filed an RTI application at the regional transport office, seeking details of the number of autos and permit-holders in Thane. All it required for Public Information Officer I S Muzumdar, who is the Assistant Commissioner and Deputy Commissioner Sanjay Dole was to take a printout of the details-73,993 autos of which 36,887 had permits-which were readily stored in their computers, and hand them over to Mahadik. Instead, the two officials chose to harass the RTI applicant and demanded Rs 55.43 lakh from him as a fee for the information that they promised to compile in a CD.

After being apprised of the incident, Chief Information Commissioner Ratnakar Gaikwad rebuked Muzumdar and Dole for “irresponsible behaviour and ignorance of law” while disposing the RTI application by Mahadik. He directed transport commissioner V N More to initiate disciplinary proceedings against the two RTO officials and inform his office of the action by next month. Also ruling that the information should be provided to Mahadik free of cost and that all RTOs should display details of vehicles in their areas on their websites. Gaikwad told More to comply with the orders and submit a compliance report to his office.

(From the Times of India dated 24.01.2014)

levitra

BCAJ Admin

PART B: RTI Act, 2005

Area	Appeals Pending	Complaints Pending
HQ	140	148
Greater Mumbai	5,394	550
Konkan	3,741	107
Pune	5,937	220
Aurangabad	3,262	493
Nashik	4,803	62
Nagpur	1,591	582
Amravati	4,184	1,256
Total	29,052	3,418

Above sad state of pendency worries all, specially, those who have to wait as long as two years to get hearing in one’s appeals or complaint. Chief information commissioner, Mr. Ratnakar Gaikwad has written to the Governor to prod the government to appoint Information Commissioners in five pending vacancies.

Public Concern for Government Trust has public interest litigation pending since more than a year in Bombay High Court in this connection.

levitra

BCAJ Admin

PART C: Information on & Around

Pending RTI Appeals & Complaints at Information Commission:

It is reported by Commonwealth Human Rights Initiative (CHRI) that huge pendency continues in various Commissions. The top two being:

Maharashtra – 34,158 as on 30-05-2014
Central – 21,946 as on 30-05-2014

Former Delhi CM Sheila Dikshit:
CM once had said: “If you cannot afford the electricity bill, then cut down your consumption.” Yet when it came to her electricity consumption, it was beyond imagination: She was using:
31 Air Conditioners
15 Desert Coolers
16 Air Purifiers
25 Heaters
12 Geysers

The above information was obtained by RTI query filed by RTI activist Mr. S.C. Agrawal. In reply the Central Public Works Department said that an expense of Rs. 16.81 lakh was incurred on the electrical renovation of the bungalow to customise it according to the needs of the then chief minister.

Sophisticated and Normal Weapons For Mumbai Police:
RTI activist, Chetan Kothari, procured following details in response to RTI query.

Sophisticated weapons acquired by state government for city cops, post 26/11:

40mm under barrel grenade launcher 391
Corner shot weapon system 15
Projector grenade 73
Rocket launcher 14
Automatic grenade launcher 50
Sniper rifle 8
51mm mortar 44
Cord detonating explosives (Meters) 475

Normal Arms and Ammunition procured after 26/11:
7.62 SLR Rifle 29,373
Glock pistols 1,277
AK-47 Rifle 3,975
9mm pistols 1,000
Stun Gun (N / E) 2,000
Tear Gas Gun 94
5.56 Insas Rifle 3,916
Machine gun (MP5, A3/%, SD6, KN) 2,061
9mm automatic pistols 1,029
Bullet Proof Jackets 4,500
5.56 Insas LMG 532

Reply also stated: These sophisticated weapons have been mainly procured from the US and Germany.

Mumbai police spokesperson DCP Mahesh Patil said the department has been using sophisticated weapons post 26/11. “These weapons provide the force with an added edge to combat any terror like situation. Experts from companies that deliver these weapons train the force in using them.

Deaths In 3 Civic Hospitals:
Right to Information query into the deaths in Mumbai’s civic – run hospitals threw up disturbing statistics – over the past 13 years one lakh patients died in Sion hospital, Ghatkopar’s Rajawadi Hospital and Mumbai Central’s BYL Nair Hospital.

RTI activists Anand Pargaonkar’s query was directed to all public hospitals in the city, but authorities of only three hospitals provided him with statistics of their mortality rate. Between 2001 to 2013, at Rajawadi hospital, 16,014 out of the 55 lakh patients (including out patients) died. At Nair hospital 29,650 out of 33 lakh admitted patients passed away. Most shockingly, 63,313 out of 1.94 crore patients admitted at Sion hospital died in this period. On an average, eight patients died in these hospitals every day.

Unit Trust of India:
In response to my RTI application, UTI provided me the information sought but also wrote:

In this connection, we wish to inform you that Hon’ble Bombay High Court has granted stay on the order dated 6th August 2008 passed by the Central Information Commission on applicability of the Right to Information Act, 2005 (RTI Act, 2005), on UTI Mutual Fund, UTI Asset Management Company Ltd and UTI Trustee Company Ltd. pursuant to a Writ Petition filed by these entities. As such the matter is sub-judice and the RTI Act, 2005 is not applicable on all the above entities.

levitra

BCAJ Admin

PART B: RTI Act, 2005

Note: out of 21 items of Western India RTI Convention 2014 Declaration, 1 to 9 were reported in July ’14 issue of BCAJ. 10 to 21 are reported here under:

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 RTI Convention, we pledge our
commitment to protect our constitutionally guaranteed fundamental rights
and particularly emphasising the freedom of speech and expression which
is the bedrock 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 RTI
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-

10. S everal serious problems
are plaguing the functioning of Information Commissions across the
country which must be urgently addressed by the appropriate authorities.
The Supreme Court’s direction in the Namit Sharma case which requires a
fair and transparent process for the appointment of information
commissioners from diverse fields of experience and expertise, must be
immediately implemented and shortlisted candidates be subject to
credible public scrutiny about their track record of supporting the
regime of transparency. The minutes of the selection committees must be
disclosed proactively. The number of Information Commissioners must be
determined through an assessment of the workload in each Information
Commission as the pendency is reaching alarming levels denying people
their fundamental right to information.

11. A ll Information
Commissions must set up a mechanism to monitor compliance with its
decisions and in particular with its orders imposing penalty on Public
Information Officers and recommendations for taking disciplinary action
against those who are violating the provisions of the Act persistently.
We express our deep concern over some pronouncements of High Courts
denying the appellant or complainant the opportunity to participate in
penalty proceedings before the Information Commissions. Appellants and
complainants must have the opportunity of participating and presenting
their views in all penalty proceedings which they have caused to be
launched and copies of all replies of the PIOs and deemed PIOs must be
shared with them in person as well displayed on the websites of
Information Commissions and the concerned public authorities.

12.
We are deeply concerned about several judgements of the Supreme Court
that are resulting in the curtailment of the scope of people’s right to
information and the express and implied powers of Information
Commissions. RTI users and activists in particular and the people in
general, must discuss and debate the implications of these judgements to
form a strong public opinion in favour of defending and expanding the
mechanism and processes of transparency established by the RTI Act.

13.
A s the exemptions u/s. 8 of the RTI Act are adequate for protecting
important public interests, all security and intelligence organisations
notified by the Central and State Governments u/s. 24 must be reviewed
immediately and such notifications should be withdrawn.

14. We
demand that all laws enacted by Parliament and the State Legislatures
conform to the regime of transparency established by the RTI Act. We
demand the immediate withdrawal of provisions that curtail the scope of
the people’s right to information in other laws and Rules such as the
Collection of Statistics Act, 2008, The National Investigation Agency
Act, 2008, The Foreign Contribution Regulation Act, 2010, and the
Information Technology Rules, 2009. All authorities must ensure that no
Bill, Act, rule, regulation, or executive order curtails people’s
fundamental right to information as guaranteed by the Constitution.

15.
We appreciate the Central Government’s recently instituted policy on
pre-legislative consultation and demand that all Governments immediately
adopt a legally mandated process for formulating any law or policy
through widespread consultation with and effective participation of the
people. All draft MOUs and leases that the governments propose to sign
must be proactively disclosed to the people to enable them to give their
suggestions for change. 16. We demand that appropriate constitutional
mechanisms be put in place requiring the Central Government to place all
international treaties it signs before ratification before Parliament.
After signing treaties, they should be put out in the public domain,
subject to the exemptions provided under section 8 of the RTI Act.

17.
We demand that information about the finances, expenditure and working
of all societies, trusts, trade unions, cooperative societies, religious
and charitable institutions be made accessible to people under the RTI
Act.

18. We believe that WE THE PEOPLE, are the rightful owners
of our country’s natural resources. We demand equity and people’s
participation in decision making combined with complete transparency,
accountability in the management and use of all natural resources.

19.
We demand transparency in the ownership and the source and manner of
funding of all mass media agencies. Methods of enforcing accountability
of the media sector to the people must be explored, while protecting the
right to freedom of expression and the freedom of the press guaranteed
by the Constitution.

20. We are deeply concerned about the
attacks on the attempts to curb people’s right to free speech and
expression, especially those who voice political dissent or raise issues
of public concern in a democratic and constitutional manner. We are
also anguished by recent targeted attacks on academics for publishing
their research. We protest against all attempts at criminalising the
legitimate expression of dissent under Section 66A of the Information
Technology Act and demand withdrawal of all actions launched against
persons with the motive of punishing them for exercising their right to
free speech and expression.

21. We affirm all resolutions passed
at the workshops (annexed to this Declaration) held at the Western
India RTI Convention 2014.

levitra

BCAJ Admin

PART A: Decision Of CIC

Section 8 (1) (i) of the RTI Act:
Facts:
Vide
RTI application dated 14-05-2013, the appellant sought copies of
documents including a copy of the cabinet decision in respect of certain
recommendation relating to pension of ex-servicemen and civilians.

CPIO/under secretary (pension policy) declined to provide the copies of documents sought as the same were graded as ‘secret’.

Before
the Commission, CPIO submitted that the Cabinet Secretary has made
certain recommendations dated 17-08-2012 relating to pension of ex –
servicemen and civilians, which was graded as ‘secret’. Orders accepting
these recommendations were issued on 17-01-13. However, as the document
was graded ‘Secret’ and the process of downgrading is pending, the
information sought was denied. Appellant submitted that there is no
secrecy involved and he should have been provided the information
sought.

Decision:
“Section 8 (1) (i) of the RTI Act
states that notwithstanding anything contained in this Act, there shall
be no obligation to give any citizen, Cabinet papers including records
of deliberations of the Council of Ministers, Secretaries and other
officers, provided that the discussions of Council of Ministers, the
reasons thereof and the material on the basis of which the discussions
were taken, shall be made public after the decisions have been taken and
the matter is complete.”

“In the instant case, the
recommendations of the Committee have been accepted and formal orders
issued on17-01- 13. As such, the matter is complete as per the
provisions of section 8 (1) (i) and denial of information not tenable.”

The
Commission directed the CPIO to provide the information sought to the
appellant within two weeks from date of receipt of the order.

[P.K.
Bhargavan Pillai vs. Ministry of Defence, (Dept. of Ex Servicemen
Welfare (Pension Policy), New Delhi, File No. CIC/SS/A/2013/002508/RM,
Decided on: 24.04.2014, Citation: RTIR II (2014) 242(CIC)].

Substantially Financed
Vide
Clause 5 of the Finance (No. 2) Bill, 2014 certain amendment in section
10 of the Income- tax Act has been made which shall be effective from
the first day of April 2015. Relevant item therein is Clause (23 C) of
section 10.

Said Clause 5 (a) reads as under:
(a) In Clause (23C), –
(i) after sub-Clause (iiiac), the following Explanation shall be inserted, namely –

“Explanation,
– For the purposes of sub Clauses (iiiab) and (iiiac), any university
or other educational institution, hospital or other institution referred
therein, shall be considered as being substantially financed* by the
Government for any previous year, if the Government grant to such
university or other educational institution, hospital or other
institution exceeds such percentage of the total receipts including any
voluntary contributions, as may be prescribed, of such university or
other educational institution, hospital or other institution, as the
case maybe, during the relevant previous year”.

Section 2(h) of the RTI Act, defines the term “public authority”. Relevant provisions read as under:
(h) “public authority” means any authority or body or institution of self – government established or constituted-
(a)……..
(b)……..
(c)……..
(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;

Recently,
CIC in the case of Madan Mohan Priva vs. Jan Kalyan Shiksha
Samiti/Samkalp has opined on sub Clause (d) of section 2 (h). I
reproduce some relevant paragraphs from the order:

“As per the
above definition before an NGO can be held to be Public Authority u/s.
2(h) (d) (ii), it has to satisfy the condition that it is “Substantially Financed.”

The Hon’ble Delhi High Court in Indian Olympic Association vs. Veeresh Malik and Ors (2010) IL R 4 Delhi 1] with regard to substantial financing has observed that the term “substantially financed” has not been defined.

*Highlighted by the author
According to the Legal Glossary – 1992 (published by the Govt. of India) the term means: finance:

1. the pecuniary resources of a government or a company.

2.
to provide with necessary funds. Oxford’s Shorter English Dictionary
defines the term “substantial” as follows: S ubstantial…. An adjective…

3. Of ample or considerable amount or size; sizeable, fairly large.

4. Having solid worth or value, of real significance; solid, weighty; important, worthwhile…

The
term “substantial” denotes something of consequence, and contrary to
something that is insignificant or trivial. It implies a matter of some
degree of seriousness. The question is whether the term itself suggests,
in the context of “substantial financing” a predominant or overwhelming
financing. In other words, does “substantial” read with “financing”
mean that the major funding should from the relevant source, i.e., state
or governmental source”.

The Hon’ble Supreme Court in
Thalappalam Ser. Coop Bank Ltd & Ors. vs. State of Kerala [2013 (12)
SCALE 527] as to what is “substantial financing” has observed that:

“36.
The words “substantially financed” have been used in sections
2(h)(d)(i) and (ii), while defining the expression public authority as
well as section 2(a) of the Act, while defining the expression
“appropriate Government”. A body can be substantially financed, directly
or indirectly by funds provided by the appropriate Government. The
expression “substantially financed”, as such, has not been defined under
the Act. “Substantial” means “in a substantial manner so as to be
substantial”. In Palser vs. Grimling (1948) 1 All ER 1, 1 (HL), while
interpreting the provisions of Section 10(1) of the Rent and Mortgage
Interest Restriction Act, 1923, the House of Lords held that
“substantial” is not the same as “not substantial” i.e. just enough to
avoid the de minimis principle. The word “substantial” literally means
solid, massive etc. Legislature has used the expression “substantially
financed” in sections 2(h)(d)(i) and (ii) indicating that the degree of
financing must be actual, existing, positive and real to a substantial
extent, not moderate, ordinary, tolerable etc.

38. Merely
providing subsidiaries, grants, exemptions, privileges etc., as such,
cannot be said to be providing funding to a substantial extent, unless
the record shows that the funding is so substantial to the body which
practically runs by such funding and but for such funding, it would
struggle to exist. The state may also float many schemes generally
for the betterment and welfare of the co operative sector like deposit
guarantee scheme, scheme of assistance from NABARD etc., but those
facilities or assistance cannot be termed as “substantially financed” by
the State Government to bring the body within the fold of “public
authority” under section 2(h)(d)(i) of the Act. But, there are
instances, where private educational institutions getting 95% grant – in
– aid from the appropriate government, may answer the definition of
public authority under section 2(h)(d)(i).”

[Madan Mohan Priva
vs. Jan Kalyan Shiksha Samiti/Samkalp, File No.: CIC/AD/A/2013/000269 –
SA, Decided on: 30-05-2014, citation RTIR II (2014) 262 (CIC), Order
delivered by M. Sridhar Acharyulu, Central Information Commissioner].

[Ch. Rama Krishna Rao vs. Naval Ship Yard, Port Blair, (third Party: shri r. ajit Kumar) decided by the full bench on 05-05-2014. file no. CiC/Ls/a/2012/002430/rm.]

BCAJ Admin

Part C Information on & Around

Mumbai VC Rajan Welukar spent without sanction:
Rajan Welukar has used over Rs. 12 lakh of Mumbai University’s funds to pay lawyers defending his appointment as the varsity’s vice-chancellor in the Bombay High Court, a Right to Information (RTI) request has revealed. Activist Anil Galgali, who obtained the details, alleged that Welukar has roped in lawyers who were not part of the university-approved panel of legal experts, and used varsity funds to pay their fees without official sanction.

“The university’s funds are meant to be used for the benefit of students. In fact, there are so many issues that require financial consideration,” Senate member Sudhakar Tamboli said. “The case against Rajan Welukar questions his appointment as the vice-chancellor, and not the decisions he has taken. Why is the university then bearing his legal expenses?”

Registrar Khan, however, said that the varsity was also a party to the legal challenge. “The case is also against the University of Mumbai. We have taken the management council’s approval for legal expenses,” he said.

An RTI enquiry revealed 165 pilots were found to have high blood alcohol levels between Jan 2009 and Feb 2014:
According to a Right to Information (RTI) enquiry filed by a serving Jet Airways pilot, between January 2009 and February 2014, 165 pilots in the country were found to have high blood alcohol levels.

“It is important to take post-flight breath analyser test because a pilot will be considered as having tested positive on skipping the test. It will not be possible to explain that the test was missed inadvertently,” the Jet Airways pilot said. He added that the airlines was currently hiring additional doctors to carryout the checks.

Twelve crew members of an Air India flight from London to Mumbai have been sent on compulsory leave for 15 days as punishment for not undergoing post-flight alcohol check implemented by Directorate General of Civil Aviation (DGCA) recently.

As required under tougher rules for alcohol tests with effect from July 2014, the 12 crew members, including six air hostesses, fails to report for the post-flight breath analyser checks on their return to Mumbai from London last month. Not reporting for tests as per the modified rules is considered as being alcohol-positive.

Centre spent Rs. 320 cr on R-Day last year:
Ever wondered how much the Republic Day ceremony at Rajpath, with all its smart marches, colorful tableaus and performing artists, costs to put together? A query under the RTI Act has elicited a response from the Central Public Works Department (CPWD) that says the Centre spent Rs. 320 crore in the four-hour parade in 2014.

Over the years, the expenses on Republic Day celebrations have risen quite substantially. In 2001, the expenditure was Rs. 145 crore.

The Rs. 145 crore that was incurred by the Centre in the financial year 2000-01 rose to Rs. 226 crore in 2003-04. For the next three years, though, expenditure decreased somewhat, in step with a not-so-healthy economy. In 2006- 07, the government spent Rs. 149 crore on the celebrations.

The budget for the R-day function was then increased by 34.16% in 2007-08, and the Centre spent Rs. 227 crore that year. In 2009-10, it went up to Rs 285 crore.

There were slight decrease in the budget in 2011 and 2013, but the Centre ended up spending robust Rs. 320 crore in 2014. In comparison to the amount spent in 2001, the budget for the parade last year shot up by 54.51%.

Man refuses to stay standing, arrested:
The Tamil Nadu State Information Commission (TNSIC) had an RTI applicant arrested for taking a chair in front of a two-member bench hearing his appeal. There is no rule preventing an RTI applicant from sitting during an appeal.

Chief information commissioner K. S. Sripathi and commissioner S. F. Akbar had NGO Legal Panchayat Movement president Siva Elango arrested as he sat even as they refused to accede to his request for a chair during the hearing of his appeal against rejection of an RTI application.

Elango was booked under IPC Section 353 (preventing a government servant from discharging his duty), 294 (b) (obscenity) and 506 (1) (criminal intimidation).

Police presented Elango before a magistrate, which remanded him in judicial custody for 15 days.

levitra

BCAJ Admin

Part A DECISION OF H.C. & CIC

Information, Section (2):
The Appellant, Shri Ramesh Kumar, submitted RTI application dated 20th September 2012 before the Central Public Information Officer (CPIO), Punjab National Bank, Lucknow; seeking information regarding challans through which Income Tax had been deducted from his salary and was deposited with the Income-Tax Department through wrong PAN number etc., through a total of 5 points.

The appellant preferred an appeal dated 10th November 2012 to the first appellate authority (FAA) when he did not receive any information from the CPIO concerned within stipulated time period. Vide reply dated 27th November 2012, CPIO furnished information on point no. 1 and informed on point nos. 2 to 5 that the requested information was 5 to 6 years old, due to which they were facing problems in retrieving the same, and they will furnish the same one they retrieve it. Vide order dated 17th December 2012, FAA held that CPIO has already furnished the information vide letter dated 27-11-2012 and also upheld the CPIO’s decision.

The appellant submitted that he is an ex-employee of the public authority and he retired on 31-3-2012. The Incometax Department had contacted the appellant information him that the public authority had failed to deposit his Income-tax for the years 2006-2011, as they had quoted wrong PAN number in the Form 16 of the appellant. Hence, he sought information under the RTI Act, about the details of the income tax deductions and deposit challan copy for the years 2006-2011. However, the CPIO had only provided information pertaining to years 2009-2011. The information for the year 2006-2009 had not been provided. The appellant submitted that the information would help in settling up the tax issues with the Income Tax Department.

In the second appeal before CIC, the appellant did not inform the bank about the wrong PAN number when the matter came to their notice they corrected the PAN number and submitted revised I.T. return. The tax deducted was not deposited on an individual basis but in consolidated manner (branch wise) by the public authority, hence information sought is not held by the office in the format sought in the RTI application. The copies of month wise bank certificates can be provided to the appellant for the years 2006-2011. They have provided all Form 16 asked for by the appellant. The challan copies for depositing the tax were not available so they provided the copies of acknowledgement for that period.

The CPIO’s submissions are accepted by the Commission that information as held has been provided. However, the CPIO is directed to provide additional information to the appellant regarding the copies of month wise certificate of Income-Tax deducted for the years 2006-2011 within one week of the receipt of the order of the Commission.

[Shri Ramesh Kumar vs. Punjab National Bank, Lucknow & Ors. in CIC/VS/A/2013/001377/MP, in CIC of Delhi dated 23rd July 2014]

levitra

BCAJ Admin

Part c Iinformation on & Around

6,000 RTI cases pending in Assam
A total of 6,220 cases of RT I complaints and appeals are pending in the office of the Assam Information Commission where the post of information commissioner remains vacant.

The Assam Information Commission has three sanctioned posts – a chief information commissioner and two information commissioners. However, one post of information commissioner has been lying vacant since the tenure of Mohan Chandra Malakar, a retired principal chief conservator of forests (wildlife), expired in March 2014, he added.

Das, a retired additional chief secretary in the Assam government, had assumed charge on December 1, 2014. His post had been lying vacant since January 2011, when his predecessor D.N. Dutt’s term expired. When Das took charge, both the posts of information commissioners were vacant, following the expiry of the tenures of the previous incumbents, and more than 6,000 cases were pending. .

265 officers fined over Rs 22 lakh for refusing information under the RTI Act
As many as 265 public information officers across Karnataka have been penalised for a total of Rs 22,44,500 during the last 10 months for denying information under the RT I Act. As per the RT I Act 2005, public information officers have to provide information u/s. 7(1) within 30 days. RT I Commissioner Shankar R. Patil has recommended disciplinary action against the officers, including many senior officers of urban development, revenue and education departments, BBMP, BDA, AC’s, Additional Deputy Commissioners and tahsildars for their failure to provide information without any valid reason. .

Delhi HC imposes costs on RTI applicant for filing vague and irrelevant RTI queries

The Delhi High Court, in Shail Sahni vs. Valsa Sara Mathew, took an RTI applicant to task for filing vague and irrelevant RT I queries. Justice Man Mohan of Delhi High Court imposed costs of Rs. 25,000 on the applicant who approached had High Court seeking compensation of Rs. 4 lakh. The RT I applicant had approached the High Court challenging the CIC order refusing to intervene in denial of RT I replies to the queries she posed to Ministry of Defence. He submitted that CIC has committed an error in holding that Commission’s interference is not required in the matter. The Court, after perusing the applications filed by him, opined that that they are general, wide, ambiguous and vague. The Court also observed that the petitioner-applicant had approached High Court earlier too, in which the Court had dismissed his petition and observed that the “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”. Despite the aforesaid judgment, the petitioner continued to file filing general, irrelevant and vague queries, which was dismissed by the court with costs of Rs.25,000 to be paid by the petitioner to the Lok Nayak Hospital, New Delhi within a period of three weeks, Justice Manmohan said. However, the Court also observed that if the petitioner-applicant were to file a fresh application with the PIO prioritising his requirement and identifying the precise information, the same shall be supplied.

Mumbai University offers a sixmonth PG certificate course in Right to Information (RTI) Act.
The Department of Civic and Politics, which is designing the course content and identifying the subjects in the curriculum will hold classes for this academic session from 16th January 2016. To mark this occasion, the University had organised an inaugural function in its Kalina Campus which was attended by RT I activist Nikil Dey, former Central Information Commissioner Shailesh Gandhi and Chief Information Commissioner Ratnakar Gaikwad. Vice-chancellor Sanjay Deshmukh. Admission process for the course has already begun and university is targeting social activists, PIOs, journalists, bureaucrats and members of civil society to ensure more effective use of the RT I. Information activist who doled out lakhs as RT I fee was felicitated.

Arunachal RT I Activist Forum (ART IAF) felicitated Mr. Nabam Pali for his effort to reduce the RT I application fee from Rs. 10 to 2 in the state, in Itanagar, Arunachal Press Club (APC) President Chopa Cheda while felicitating Nabam Pali in a simple yet impressive function congratulated him for achieving the feat.

BCAJ Admin

Part A Decision of Supreme Court

RBI Directed To Disclose Information under Right to Information Act

The Supreme Court, in a landmark decision (Reserve Bank of India vs. Jayantilal Mistry) ruled that the RBI does not place itself in a fiduciary relationship with the financial institutions because, the reports of the inspections, statements of the bank and other information related to the banks’ business do not fall under the purview of the term confidence or trust. Whilst delivering the judgment for the bench, Justice M.Y. Eqbal, explaining the nature of functions of the banking sector regulator, said: “the RBI is supposed to uphold public interest and not the interest of individual banks. The RBI is clearly not in any fiduciary relationship with any bank. RBI has no legal duty to maximise the benefit of any public sector or private sector bank, and thus there is no relationship of ‘trust’ between them. The RBI has a statutory duty to uphold the interest of the public at large, the depositors, the country’s economy and the banking sector. Thus, RBI ought to act with transparency and not hide information that might embarrass individual banks”.

Contentions by The RBI: RBI declined to disclose the information such as unpaid loans, top defaulters of the public sector banks, fines imposed by it on other banks etc., on the ground of being exempted under Section 8(1)(a), (d) and (e) of the RT I Act. The refusal to reply to the RT I queries was based on the premise of protecting economic interest, commercial confidence, and fiduciary relationship of RBI with other banks. RBI further contended that RT I Act was a general law and it could not override the confidentiality provisions under the specific legislations such as Banking Regulation Act, 1949, the Reserve Bank of India Act, 1934 and the Credit Information Companies (Regulation) Act, 2005.

Court’s Findings: The Apex Court rejected the arguments made by the RBI and upheld the order of the CIC. It observed that RBI does not place itself in fiduciary relationship with other banks as information received from other financial institutions is not received under pretext of trust or confidence but under the ambit of RBI’s statutory duty to oversee the functioning of the banks and the country’s banking sector. Therefore, RBI is duty bound to comply with the provisions of the RT I Act and disclose the information sought in the instant case.

The RBI’s contention that disclosure of information would prejudicially affect the economic interest of the State and may lead to a crisis of financial stability if information sought is sensitive, was also rejected by the Court as being baseless and it was held that the disclosure in question would serve public interest.

The Court further observed that the right to information regarding the functioning of public institutions is a fundamental right enshrined in Article 19 of the Constitution, and the RT I Act being a later legislation aimed to bring transparency, overrides all earlier laws and practices except in case of specific exemptions enumerated u/s. 8 of the RT I Act.

Publicised as a landmark win, this judgement has been welcomed by the RT I activists. The implications of this judgement may indeed be far reaching, paving the way for greater accountability and transparency in the financial market.

NOTE:
1 Section 8 of the RTI Act mentions “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;
(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
(e) Information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information.”

BCAJ Admin

Part D ETHICS, GOVERNANCE & ACCOUNTABILITY

Business Transparency
In its simplest sense, business transparency means clear, unhindered honesty in the way that s/he does business. But it’s more than that. One business dictionary defines transparency as a “lack of hidden agendas or conditions, accompanied by the availability of full information required for collaboration, cooperation, and collective decision making.” The same source describes it as an “essential condition for a free and open exchange whereby the rules and reasons behind regulatory measures are fair and clear to all participants.” Meanwhile, another source defines transparency as “the full, accurate, and timely disclosure of information.”

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

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

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

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

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

BCAJ Admin

Part D ETHICS, GOVERNANCE & ACCOUNTABILITY

Openness, accountability, and honesty define government transparency. In a free society, transparency is government’s obligation to share information with citizens. It is at the heart of how citizens hold their public officials accountable.

Governments exist to serve the people. Information on how officials conduct the public business and spend taxpayers’ money must be readily available and easily understood. This transparency allows good and just governance.

“A lack of transparency results in distrust and a deep sense of insecurity.”
– Dalai Lama

BCAJ Admin

Part C Information on & Around

Chief Minister’s office (Maharashtra ) paying nearly Rs. 8 lakh a month to eight officers on special duty:
An RTI query filed by activist Anil Galgali has revealed that the Chief Minister’s Office (CMO) incurs a monthly expenditure of Rs. 7.7 lakh to pay the officers on special duty (OSD). Galgali feels that the performance of these officers ought to be evaluated and appraised to justify the remuneration.

The CMO, however, feels these OSDs are discharging important duties. “All these officers have contributed immensely in various projects and flagship programmes of the government and the chief minister monitors their performance personally”, the CMO reacted in a written note. It mentioned that governance programmes, such as Aaple Sarkar, Right to Services Act and War Room that led to “good and speedy governance” were handled by OSDs.

The state is also using modern communication platforms such as Twitter, Facebook and WhatsApp. These candidates are handling it for the government to make the state schemes and decisions reach out to people. The OSDs have played an important role in the recent Make in India Week. The CMO still has vacancy for two OSDs.

‘Make In India’ logo designed by foreign firm
The logo of Prime Minister Narendra Modi’s much-hyped Make in India initiative, which aims to brand India as a manufacturing hub is designed by a foreign company’s Indian arm, reveals an RT I query. Replying to query by a Madhya Pradesh-based activist, Chandra Shekhar Gaur, Union Commerce and Industry ministry replied, “No tenders were invited for designing Make in India logo. In 2014-15, tenders were invited by the ministry for appointing a creative agency. And on the basis of this tender, Weiden+Kennedy India Limited, was chosen”.

While replying to another query, the ministry informed that Weiden+Kennedy India Limited was hired for Rs. 11 crore for advertising and promotion of Make In India campaign, for 3 years — Rs. 4.32 crore for financial year 2014-15, Rs. 3.6 crore each for 2015-16 & 2016-17, said the reply in the last week of December.

Speaking to TO I, Gaur said, “It feels good to hear about ‘Make in India’ and the campaign also talks good about our country. It’s a good initiative, but it would have been better and sent a stronger message if this was done by an Indian firm. There is no dearth of creative talent in India.”

HC refuses info under RTI for want of manpower
The Public Information Officer (PIO) of the Madras High Court Bench has refused to furnish information sought for by an advocate under the RT I Act, since “it is not readily available and collection of the same involves verification of voluminous records and huge manpower which is not possible.”

K. H. Elavazhagan, Registrar (Administration)-cum- PIO of the Bench, had said so in a written reply sent to the RT I applicant, A. Kannan, who had sought details of private cases filed by law officers representing the State government before their appointment to the posts of Special Government Pleader, Additional Public Prosecutor and Government Advocate in June 2011.

10 Janpath bigger than PM’s 7 RCR
Congress president Sonia Gandhi has one of the largest residences among politicians in the country, bigger than even the Prime Minister’s official abode at 7 Race Course Road in size. President Pranab Mukherjee and Vice-President Hamid Ansari are the only others who can boast of set-ups more palatial than the politically potent 10 Janpath. But while Rashtrapati Bhavan, the Vice- President’s residence and 7 RCR are official residences, Gandhi’s home at 10 Janpath is specifically allotted to her, irrespective of her status as Member of Parliament. The Gandhi residence is spread over 15,181 sq. m. while the Prime Minister’s is smaller at 14,101 sq. m., according to the Central Public Works Department.

Apex Court refuses to share pending ruling data
Fifteen years after its verdict that the confidence of litigants would be shaken if judgments were kept pending for years, the Supreme Court recently refused to share information under the RT I Act on the cases reserved for judgment. It also dismissed a plea to maintain the data on its pending judgments and make the information public under the RT I Act.

Closing the option for litigants and public-spirited persons to know details of cases which have been waiting endlessly for final decision, even though arguments are long over, the apex court refused to interfere with a Delhi High Court decision which said the court registry could not be directed to collect information on how long judgments on cases remained pending under the Right to information Act.

After a case is heard by a court, it reserves its verdict in the case. There is a certain time gap between this and declaration of the court’s decision or judgment. The case remains pending till the judgment is delivered. However, the Supreme Court’s refusal to be made accountable under the RT I Act is despite the Central Information Commission (CIC) ruling to disclose the number of pending or “reserved” judgments.

60% of discretionary fund used for Karnal, Gurgaon ignored

Haryana Chief Minister, Manohar Lal Khattar had released Rs. 14.30 crore for the state in 2014-15 under the discretionary fund. However, an RT I reply from the government has revealed that it has not spent a penny of this fund in Gurgaon.

The government in its reply said Rs. 8.76 crore, a whopping 60% of the entire amount was spent in Karnal, the CM’s constituency.

Chief Ministers’ discretionary fund is meant to provide immediate relief during calamities, disasters and other similar incidents when the other government machinery is slow and bound by rules and regulations. The apex court in 2011 had upheld this quota stating that the power of the chief minister to give monetary relief was power accompanied with duty.

While the funds in the CM’s discretionary quota are meant exclusively for an emergency, what is surprising is that Khattar has bestowed a major part of his largesse to only six villages in Karnal for development work.

BCAJ Admin

Part B RTI Act, 2005

In 3 months, Delhi government to accept RTI applications online

As a part of its e-governance initiatives, the Delhi government will begin accepting online filing of RTI applications within the next 3 months. According to government sources, the online RT I project is in the pipeline along with the project to set up e-Mandis, which will also make the sale of agricultural produce more transparent.

The project will help citizens file applications seeking information pertaining to any government department, make payments online and receive replies through e-mail. Currently, RTI applications are filed in person or by post.

The online applications, sources said, will have a payment gateway similar to an e-commerce platform and payments will be enabled by credit or debit cards, or netbanking. The government is currently working on setting up the infrastructure to ensure appropriate channeling of applications to the concerned departments. A back-end set up will also have to be created to channel the RT I fees to the concerned department, said sources. In addition, the government is also training its officials to gradually shift the RTI setup to a paperless office. Sources said training of government employees will also take some time before all RT I operations become paperless. The government, however, will rope in various departments to be able to complete the process within the next three months. About the e-Mandi project, sources said it was conceptualised to regulate the prices of agricultural produce and eliminate the monopoly of some vendors. This will ensure that details of all products are online. If the sale of some product is stuck, their availability or otherwise can be seen online, said a source. The project is still nascent and will take time to be planned and executed. While both the projects have received the government’s nod, the cost involved in setting them up is still being worked out, said officials. The majority of the expenses, they said, would be on setting up the online platforms and back-end operations.

BCAJ Admin

Part A Decision of Supreme Court

Public Service Commissions within RTI ambit

The Supreme Court held that candidates in recruitment examinations can seek scanned copies of answer sheets and tabulation of interview marks under the Right to Information (RT I) Act, but the right to information does not extend to disclosure of names of examiners.

A Bench of Justices M.Y. Eqbal and Arun Mishra in the case ‘Kerala Pub. Service Commn. & Ors. vs. State Information Commn. & Anr’ said disclosure of those who evaluated their mark sheets would not be in public interest.

The Apex Court held:
“The request of the information seeker about the information of his answer sheets and details of the interview marks can be and should be provided to him. It is not something which a public authority keeps it under a fiduciary capacity. Even disclosing the marks and the answer sheets to the candidates will ensure that the candidates have been given marks according to their performance in the exam. This practice will ensure a fair play in this competitive environment, where candidate puts his time in preparing for the competitive exams, but, the request of the information seeker about the details of the person who had examined/checked the paper cannot and shall not be provided to the information seeker as the relationship between the public authority i.e. Service Commission and the Examiners is totally within fiduciary relationship. The Commission has reposed trust on the examiners that they will check the exam papers with utmost care, honesty and impartially and, similarly, the Examiners have faith that they will not be facing any unfortunate consequences for doing their job properly. If we allow disclosing name of the examiners in every exam, the unsuccessful candidates may try to take revenge from the examiners for doing their job properly. This may, further, create a situation where the potential candidates in the next similar exam, especially in the same state or in the same level will try to contact the disclosed examiners for any potential gain by illegal means in the potential exam.”

BCAJ Admin

Part C Information on & around

Maharashtra government makes another attempt to cripple RTI Act; move draws flak

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

What are the controversial proposals?

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

How will the proposals kill the Act?

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

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

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

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

Update details of officers handling RTI matters: Govt to depts

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

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

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

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

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

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

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

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

BCAJ Admin

Part B RTI Act, 2005

Constitution bench to decide if SC is exempted from RTI Act

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

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

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

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

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

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

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

BCAJ Admin

Part A Decision of CIC

[Introductory Note to the following CIC Decision: In 2010 the Environment Minister placed a moratorium on release of Bt Brinjal, which would have been the first genetically modified (GM) food crop in India – despite it having been cleared as ‘safe’ by the Regulator, the Genetic Engineering Appraisal Committee (GEAC). This was done in the light of the analysis of the test data by scientists in India and abroad, who found many lacunae in the test results done by the applicant and accepted by the GEAC. There were also public hearings at 7 locations where the scientists as also consumers, farmers and NGOs could put their view point. Currently GM mustard has been through testing and may be cleared for release, but data was not being put in the public domain for analysis. An RTI application has resulted in the following landmark order]

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

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

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

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

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

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

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

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

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

BCAJ Admin

Part D ETHICS, GOVERNANCE & ACCOUNTABILITY

Corporate Transparency
There is considerable debate on how corruption must be reduced in the government. It spawned a movement, – which shook the nation;- and subsequently a political party. Most organisations in Western countries do not have specific Vigilance departments, whereas most of our government departments cannot do without these. Since the Vigilance departments are ineffective we have an Anticorruption bureau. To ensure independent investigation we have a CBI. Since these are not adequate we have the CVC, and now the talk of a Lokpal as the panacea for corruption.

The objective of this article is to see whether a method can be evolved to curb the corruption which takes place by collusion between big business and government functionaries. This hurts the nation seriously, since it is now estimated to be in millions of dollars. As many people point out, there are basically two types of corruption in government offices:

1) Extortionist- where bribes are demanded for a legitimate service or as a price to avoid harassment.

2) Collusive- where the giver is eager to give bribes so that he can indulge in an illegal act, or enrich himself at the cost of the public. This is usually of very large value and hurts public finances significantly.

This piece is an attempt to suggest that non-government action can lead to reduction of the second kind of corruption, which results in huge scams and great cost to public exchequer. Let me make an attempt to outline how this could be achieved. I am basing my suggestions on the following assumption:

A small percentage of the corporate would collapse if corruption were to be curtailed, since their profits depend on them. A comparable number of corporate lose a lot of business opportunities to the former because of unwillingness to adopt unethical practices. Most of the corruption of the collusive kind is indulged in by the former. For corporate of the second kind, there is a business need to curtail the collusive corruption. Apart from this there may be a consideration of ethics and a genuine desire to curb corruption. If a few such companies decide to take active steps to curtail corruption, and are quite clear that they will not adopt this route of getting unfair or unjust advantage from the government, they can make a difference to the overall national scenario. Taking a proactive role to achieve this goal is in their business interest and could translate to higher profits.

Unfair advantages by collusive corruption are obtained by paying lower taxes or getting unfair reliefs in paying taxes. Another area is getting lands or other infrastructure in a manner which gives them an effective subsidy. One more avenue is to bid competitively for providing services or for public private partnerships, and subsequently changing the conditions to affect public interest adversely. The idea is that those who wish to promote honesty and look at it as their social responsibility publicly pledge to display all transactions with governments on their websites.

Companies could also declare a policy for disclosure in which they could declare that certain information, which may harm their commercial interests would not be displayed. This would be very little, which might harm the legitimate commercial interests of the companies. They could declare the kind of information in government transactions which they would not display and explain their reasons. Many business leaders regret the lack of transparency and the corruption in government. They can take the lead and demonstrate their willingness to be transparent and also to transform the nation. It would be very good if a few businesses got together and announced their commitment to be transparent in their transactions with government. If they have taken a conscious decision to refuse the route of corruption to get undue advantage they would lose nothing and certainly gain respect from citizens and peers. Businesses may well argue that citizens should get the information from the government departments. These departments usually do not give information which would reveal favours despite this being a violation of their obligation in Right to Information Act. There could be two benefits for companies who publicly announce and practice transparency in all transactions with government:

1) They would be recognized by public for their commitment to transparency and corporate social responsibility.

2) Over a period of time if more companies follow suit, it would create a pressure on others to accept this level of transparency.

As the law stands most of this information should be accessible to citizens from government departments using RTI , except that which is exempt. However, when large corruption is involved, the information is usually denied and a citizen finds it difficult to battle this unjust denial.

Private action could have the potential of curbing corruption. I am hoping a few will take the lead. Corporates can make an effective contribution to bringing transparency and accountability and reducing corruption in the nation. Will some corporate take the lead? This could also be achieved if regulatory agencies,- like SEBI in India,- make it mandatory for all companies.

BCAJ Admin

Part C Information on & Around

Haryana: Charge for RTI application reduced from Rs. 50 to Rs. 10
The Haryana government has reduced the charge for filing an application under Right to Information (RTI ) Act from Rs. 50 to Rs. 10. The Haryana Right to Information Rules, 2009, has been amended and now will be known as the Haryana Right to Information (Amendment) Rules, 2016. A spokesman of the Administrative Reforms Department said that a notification to this effect had been issued. He said that according to the amendment, an application for obtaining any information would warrant a fee of Rs. 10.

Delhi HC directs Central Information Commission to start maintaining daily order sheets within six months
In a recent order, Justice Manmohan of Delhi High Court has directed the Central Information Commission to start maintaining daily order sheets within six months. The direction came while disposing the writ petition filed by R. K. Jain, a renowned authority on indirect taxation, and the Editor of Excise Law Times. In his order, Justice Manmohan held that since the CIC is a quasi-judicial body, its records must reflect a true and correct state of affairs. Dr. L. C. Singhvi, counsel for CIC, told the court that the CIC was willing to maintain daily order sheets, and sought time to evolve a procedure. Jain had complained that during hearing of his appeal in a recent case, it was allowed by the CIC, but in the order which was passed by CIC after a long delay, the appeal was dismissed.

RTI query exposes scam in appointments at CCSU
A report obtained under the Right to Information Act (RTI ) has thrown light on alleged corruption in the appointment procedure of assistant professors at Chaudhary Charan Singh University(CCSU).

As per the interview procedure, a suitable candidate is judged on the basis of his performance in the academic record & research programme and domain knowledge. In the 13 appointments made in February 2015, marks in domain knowledge were allegedly increased that led to the appointment of these aspirants.

However, a complaint was filed against one such aspirant following which the appointment was terminated. However, the remaining 12 candidates continue to be staff members.

Three Public Sector Banks With High Non-Performing Assets Rejected Most RTI Requests in 2014-15

A day after the Reserve Bank of India (RBI) submitted a list of the big defaulters – those who owe banks over Rs. 500 crore each – before the Supreme Court, with the plea that the names not be made public, an analysis of the data on the disposal of right to information (RTI ) applications has revealed that three public sector banks (PSBs), which figure high on the list of those with large non-performing assets (NPAs), rejected the most number of applications. While the rejection rate of some banks was less than 12%, many banks had a rate as high as 50%, indicating that perhaps they have something to hide, said RTI activist Venkatesh Nayak, programme coordinator at the Commonwealth Human Rights Initiative (CHRI), who examined the annual reports released by the Central Information Commission, which contains RTI application statistics submitted by 24 PSBs u/s. 25 of the RTI Act.

SIC imposes Rs. 5K fine on town planning officers
The Nagpur bench of State Information Commission (SIC) levied a fine of Rs. 5,000 on the public information officer of town planning department here for not complying with its earlier order for providing answers to queries under Right to Information (RTI ) Act, 2005. Commissioner Vasant Patil directed to recover this amount from information officer and be paid to RTI activist Mangesh Gakre, who had lodged a complaint.

BCAJ Admin

Part B RTI Act, 2005

Four law students take Delhi High Court to Court over exorbitant RTI fees; win

In a landmark decision, the Division Bench headed by the Chief Justice of Delhi High Court, amended the RTI Rules 2006 of the HC, while hearing a PIL filed by four law students, bringing the fees at par with other public authorities

Students objected to the following rules:

a) Exorbitant Fees prescribed under Rule 10 of the Delhi High Court RTI Rules, 2006 i.e. Rs. 50 as application fee and Rs. 5 per page for obtaining the photocopy/ physical/ Xerox Copies.

b) No provision for supply of information at free of cost for the citizens falling below poverty line (BPL) category, which is a mandatory provision under the main Act to provide free access to information to such citizens.

c) Provision of filing separate applications for each unrelated information as per Rule 3 of the Delhi High Court RTI Rules, 2006

They filed a public interest litigation (PIL) in the Delhi High Court in October 2015. Paras Jain and Kumar Shanu argued this matter in person without taking help from any advocate before the Division Bench of Chief Justice of Delhi High Court. They got the first two rules a) and b) amended in conformity with the provisions of the main RTI Act. The Bench, however, rejected main contention of the petitioners (students) on quashing of Rule 3 of the Delhi, which requires a separate RTI application for each information.

Jain says, “There is no provision in the RTI Act for filing separate applications in case of unrelated information, but Rule 3 of the Delhi High Court Rules states that for each piece of information sought, a separate application should be made.” The Court stated that the provision was required as it prevents frivolous applications seeking roving inquiries into various subjects.

BCAJ Admin

Part A Decision of CIC

CIC finally slams BCI hard for continuously failing to disclose information required by RTI Act

The Bar Council of India (BCI) has not satisfactorily complied with the Right to Information Act 2005 (RTI Act) provision which requires that it publish all its affairs on its website, held the Central Information Commission (CIC). The CIC said it is inclined to impose maximum penalty on BCI chairman Manan Kumar Mishra, if the BCI does not comply in a definite amount of time.

Chief Information Commissioner Prof Sridhar Acharyulu, formerly Registrar at Nalsar Hyderabad, stated in his 7th April, 2016 order:

“It is noticed that the Bar Council of India has not satisfactorily complied with the section 4(1) (b) requirements. It is a major breach of RTI by prestigious organization called BCI. It is also surprising that they are repeatedly taking a plea that, though they have such information in computer, they have not posted it on website. They have already exhausted 10 years of time in fulfilling this obligation. Commission directs the public authority to furnish annual report in compliance with 4(1)(b), as required u/s. 19(8)(a)(vi) and directs the PIO to show cause why maximum penalty should not be imposed for this breach of RTI. Commission directs the Chairman, BCI to file an affidavit explaining when they would be complying with 4(1)(b) on their official website. All the responses should reach the commission by May 9, 2016. If not, Commission will be compelled to initiate appropriate action against the Chairman, BCI for non-compliance of section 4(1)(b).”

BCAJ Admin

Part C Iinformation On & Around

Cabinet decisions come under RTI Act , sa ys Kerala CIC

In a significant development that may make government business more transparent, the Kerala Information Commission has ordered that all decisions by the state government, once finalized in the cabinet, come under the ambit of the RTI Act.The Commission also suggested that the government publish the cabinet decisions on its official website.“The details of all cabinet decisions should be given once the procedures regarding those decisions are completed. It also should be considered seriously to upload the cabinet decisions on the government website,” the Commission observed.

Gujarat High Court Stays CIC Order On PM Modi’s Degree

The Gujarat High Court issued a stay on an order of the Central Information Commission (CIC) asking the Gujarat University to provide details of the MA degree of Prime Minister Narendra Modi to Delhi Chief Minister Arvind Kejriwal, who had alleged that it was fake. A division bench of Chief Justice R Subhash Reddy and Justice VM Pancholi also issued notices to Central Information Commissioner M Sridhar Acharyulu and Kejriwal. The university had earlier approached a single bench of Justice SH Vora on June 20 seeking a stay on the CIC order, but it later approached the division bench after it failed to get relief from the court. In its application, the Gujarat University has stated that it “is not a party to any of the proceeding before the Information Commission. Hence, the order of the CIC is adverse to the interest of the University”.

Former CIC writes to Rajasthan CM on removal of Chapter on RTI from school books
The chapter was removed during a restructuring of school syllabus in the State. Former Chief Information Commissioner Wajahat Habibullah has written to the Chief Minister Vasundhara Raje expressing displeasure at the removal of a chapter on the Right to Information (RTI ) Act from school text books in Rajasthan.The chapter on the law that was passed in 2005 to improve transparency in government was removed as part of the Rajasthan government’s revised school syllabus for the year 2016. The syllabus has also removed a page highlighting the Right to Information (RTI ) Act. According to reports, a prominent section on page 105, which was part of chapter 12 of the previous Social Science textbook for Class VIII in State schools, has now been removed in the “restructured” book.

Right to Information: A new journey begins
On June 24, 2016, Parliament of Sri Lanka unanimously adopted the Right to Information (RTI ) law.This marks the culmination of over two decades of advocacy by civil society groups and journalists. It also fulfills a key promise of the yahapalana government.Passing the law was no easy task, as it went through a year of drafting, judicial review by the Supreme Court, and considerable political scrutiny. The government and other political parties in Parliament – who rarely agree on anything – came together to pass the law without a vote.

BCAJ Admin

Part B RTI Act, 2005

If you thought that RTI queries are only about serious issues, the Prime Minister’s Office (PMO) just proved you wrong. And how!

The PMO website released a list of queries about Prime Minister Narendra Modi that were raised by people under the Right to Information (RTI ) Act.

Here are some of the excerpts from the list of queries released by the PMO website:

Request: What is the speed of internet of Wi-Fi in the PMO?

Information: The speed of internet access in PMO is 34 mbps.

Request: How many and which type of cylinder had been used in kitchen in month of October, 2014. Provide Xerox copies of bills of cylinders and how many and which type of cylinder had been used in month of May, 2015. Please provide the copies of bills of cylinders in respective months.

Information: It is stated that the kitchen expenses of the Prime Minister is personal in nature and not incurred on government account.

Request: Has the Principal Secretary to PM, Shri Nripendra Misra, ever taken his subordinates, in the Prime Minister’s office, on a picnic?

Information: No picnic/excursion was organized by PMO/Principal Secretary to PM Shri Nripendra Misra. Hence, the question of providing other details sought by the application does not arise.

Request: Please tell me PMO Office issue (sic) mobile number for their staff yes or no if yes please provide all staff number in written

Information: PMO provides mobile numbers to officers/ staff based on entitlements and functional requirements. However, disclosure of the mobile numbers would cause unwarranted invasion of privacy of the individual; as such the same is exempted from disclosure under Section 8(1) (j) of the RTI Act.

Request: Is there any information (sic) how many sick or casual leave or health leave is availed by Prime Minister of India in the last 10 years?

Information: It may be noted that no leave has been availed by the present Prime Minister i.e. Shri Narendra Modi since taking over office.

Request: Enclose all the proper records and documents which show that the present Prime Minister of India, Shri Narendra Modi is The Prime Servant of India and not the Prime Minister.

Information: There is no proposal to change the official designation of PM. Hence, the information sought does not form part of records held by this office.

Request: Has the Prime Minister read the Indian constitution? Is the Prime Minister supposed to read the Indian constitution? Is the Prime Minister assumed to have read Indian constitution? Has anyone in the PMO till date told the Prime Minister what his duties are towards India?

Information: Information sought does not fall under the definition of information. Request: Who helps the Prime Minister in sending tweets in regional and foreign languages? Names of individual(s) for each regional language. Information: Information sought is not maintained on record. (Another reply says that the Prime Minister himself is managing his personal social media accounts.)

Request: Number of sick or casual or health leave availed by the Prime Minister in the last 10 years.

Information: No leave has been availed by the present Prime Minister since taking over the office. (Replying to a related query on whether Prime Minister Modi was on leave during the Bihar election campaign last year, the PMO responded: Tours on election campaign are not official.)

Request: Percentage of marks Modi secured while graduating in 1977 from Delhi University.

Information: Does not form part of records.

BCAJ Admin

Part A Decision of CIC

CIC – pro-disclosure order on Land Acquisition Ordinance

Central Information Commission has given a prodisclosure order and directed the rural development ministry to divulge Cabinet note, file notings and all government communication on the controversial Land Acquisition Ordinance under the Right to Information (RTI ) Act In separate applications,

RTI activist Venkatesh Nayak and journalist Chitrangada Choudhury had sought copies of Cabinet note, file notings and all communication within the government leading up to the promulgation of the controversial Ordinance, which has now lapsed. Though the department of land resources under rural development ministry was the nodal agency for the move, it had denied information saying it held no such records.

Hearing the plea of the applicants last week, Information Commissioner Sudhir Bhargava directed the government to provide the information.

“The Commission after hearing the submissions of the complainant and perusing the records, notes that the information sought has not been provided by the respondent to the complainant. Further, as per the Legislative Department, the records relating to the promulgation of the said Ordinance would be available with the Department of Land Resources. In view of this, the Commission directs the respondent to provide information sought to the complainant within four weeks, from the date of receipt of a copy of this decision under intimation to the commission.” Mr. Bhargava said in his order

BCAJ Admin

Part C Information on & around

Targeting RTI in the House

MPs must not run down a law
that promises a more informed citizenry. As part of the assessments,
20,000 RTI applications filed to different public authorities in the
country were collected, of which detailed analysis of a randomly
selected sample of 5000 applications was undertaken. The Right to
Information (RTI ) Act has undoubtedly been a most empowering
legislation for citizens. The law has initiated the vital task of
redistributing power in a democratic framework. It is perhaps this
paradigm shift in the locus of power that has resulted in consistent
efforts by the powerful to denigrate it. The latest attack on the
legislation was witnessed recently in the Rajya Sabha, with several
members of Parliament, across party lines, demanding amendments to the
act. A key allegation made on the floor of the House was that the RTI is
being widely misused, especially to blackmail public functionaries. It
was also argued that government servants are unable to take decisions
objectively for fear of the RTI. This is not the first time that the
issue of misuse of the RTI Act has been flagged. The previous prime
minister alleged that a large number of frivolous and vexatious RTI
applications are being filed resulting in a negative impact on the
efficiency of the government. These assertions, however, are not backed
by data or evidence — a point which the office of the previous PM had to
publicly concede when the RTI was invoked to ask for the basis of the
PM’s views! Similarly, one of the MPs who raised these issues in the
Rajya Sabha has reportedly admitted that his statements were based on
anecdotal evidence drawn from some isolated cases

No fee to be paid for appeals and complaints related to RTI

State
information commission has said that the RTI applicant needs to pay
fees only for the first application for information and no fees shall be
paid for appeals or complaints. The commission issued the notification
in the wake of instances where applicants were made to pay fees for
appeals and complaints as well.

The complaints filed before the
commission as per section 18 of Right to Information act and appeals
filed as per section 19 does not require fees, the commission said. It
has also been pointed out that postal orders, money orders will not be
considered as fees for matters under the control of state government.
Section 6 of the RTI act says that the applicant has to pay the fees as
prescribed by the state government while filing an application for
information. The state government has determined Rs 10 as application
fee as per Kerala Right to Information (Regulation of fee and cost)
rules.

Stay on order exempting ‘T’ branch from RTI Act

A
Division Bench of the Kerala High Court on Friday stayed a January 27
Government Order exempting the T (Top secret) branch of the State
Vigilance and Anti-Corruption Bureau from the purview of the Right to
Information Act. The Bench of Justice P.N. Ravindran and Justice Sunil
Thomas, while issuing the stay order, made it clear that the RTI Act
would continue to apply to the T branch of the VACB. The Bench observed
that a prima facie case had been made out for staying the Government
Order. The order came on a writ petition filed by A. Jayasankar, general
secretary, Indian Association of Lawyers, and its State committee.
According to the petitioner, the T branch was probing the allegations of
corruption against Chief Minister Oommen Chandy, Ministers, MPs, MLAs
and top IAS/IPS officials. The petitioner contended that the order was
sheer abuse of power. The RTI Act provided for exempting only
Intelligence and security organisations from its purview. In fact, the
VACB was an agency tasked with the job of probing corruption charges
against public officials. The exemption order was issued to cover up
large-scale corruption indulged in by Ministers and higher officials and
with a mala fide intention to prevent the public from knowing the
details of the probe being conducted into the corruption charges against
Ministers and top officials before the Assembly election.The petitioner
pleaded that unless the order was stayed, it would cause irreparable
harm to the general public.

CIC pulls up Civil Aviation Ministry for ‘casual’ approach in RTI

The
Central Information Commission has pulled up the Civil Aviation
Ministry for “casual and callous approach” in handling Right to
Information applications which it said “defeats the spirit” of the law
for empowering citizenry. Chief Information Commissioner Bimal Julka
made these hard-hitting observations while hearing the case where the
ministry could not satisfactorily answer queries on ground handling
services such as “Which out of these are part of Central Government (i)
Indian Airlines (2) BWFS (3) Air India SETS (4) CELBI”.Delhi-based
Jagpal had sought information on a number of queries related to ground
handling work through his RTI application filed in 2013 but satisfactory
responses were claimed to have not been furnished and the application
kept getting transferred from one authority to another including Air
India and Airports Authority of India.

CIC ruling: Cabinet Secretariat to disclose details of agenda under RTI Act

The
Central Information Commission ( CIC) has ruled Cabinet Secretariat
cannot deny access to items on the agenda of the Cabinet after the
meeting is over under Right to Information Act.

In a
pro-disclosure order, chief information commissioner R K Mathur has
directed Cabinet Secretariat to disclose all agenda items under the RTI
Act once the meetings are over.

In a ruling on an RTI plea by
RTI activist Venkatesh Nayak of Commonwealth Human Rights Initiative
(CHRI), the CIC has also advised the Cabinet Secretariat to “put in
place” a mechanism to monitor departments and ministries for their
compliance with the requirement of sending monthly reports of work done
by them to it.

The order further says that it is “advisable” for
ministries and departments to upload the “unclassified portions” of
their monthly reports to Cabinet Secretariat on their respective
websites. Nayak had filed an RTI application with Cabinet Secretariat
seeking details of Cabinet agenda between August 2014 and December 2014.

BCAJ Admin

Part D ETHICS, GOVERNANCE & ACCOUNTABILITY

“Ethics has to do with what my feelings tell me is right or wrong.”

“Ethics has to do with my religious beliefs.” “Being ethical is doing what the law requires.”
“Ethics consists of the standards of behavior our society accepts.”
“I don’t know what the word means.”

Don’t you think on similar lines? The meaning of “ethics” is hard to pin down, and the views many people have about ethics are shaky.

What, then, is ethics? At its simplest, ethics is a system of moral principles. They affect how people make decisions and lead their lives. Ethics is concerned with what is good for individuals and society and is also described as moral philosophy. The term is derived from the Greek word ethos which can mean custom, habit, character or disposition.

Ethics covers the following dilemmas:

how to live a good life

our rights and responsibilities

the language of right and wrong

Moral decisions – what is good and bad?

Our concepts of ethics have been derived from religions, philosophies and cultures. They infuse debates on topics like abortion, human rights and professional conduct.

RTI Clinic in July 2016: 2nd, 3rd, 4th Saturday, i.e. 9th, 16th, and 23rd 11.00 to 13.00 at BCAS premises.

BCAJ Admin

Part C Iinformation On & Around

Committee to look into feasibility of special stamps for RTI
The Department of Posts said it has to constitute a fresh committee, with the approval of competent authority, to examine the feasibility of usage of RTI stamps as RTI fee and furnish a report on their recommendations.

A previous committee comprising representatives from postal department, DoPT and Central Information Commission had concluded that the amount charged under RTI is a fee not related to a postal article thus according to the present Indian Postal Act, 1898, postage stamps cannot be used for payment of RTI fee or costs.

RTI gets a memorial in Rajasthan
Ironic though it may sound, a unique memorial celebrating the Right to Information has come up in the Beawar town of Rajasthan — where the RTI movement had started 20 years ago — at a time when the Bhartiya Janata Party government in the State has opted to delete chapters on the evolution of RTI campaign and law from its school textbooks. Hundreds of people from all walks of life, who gathered at Chang Gate in Beawar on Thursday night to commemorate the historic 40-day dharna of 1996 for RTI , witnessed unveiling of the aesthetically-built memorial and demanded restoration of chapters dealing with common people’s contribution to RTI in the textbooks.

RTI plea: It took Govt of India 16 months to disclose report recommending new coastal regulation norms
Sixteen months after a Right to Information (RTI ) application was filed, the Ministry of Environment, Forest and Climate Change (MoEFCC) has disclosed a copy of the “Report of the Committee to Review the Issues relating to the Coastal Regulation Zone, 2011” to Kanchi Kohli, a well-known environmental expert. This disclosure came after an order of Information Commissioner Prof. M Sridhar Acharyulu on May 13, 2016 which stated that the ministry “cannot invent a new defense or exemption such as ‘the report is under submission’, ‘file is pending consideration’ and ‘unless approved it cannot be given’, etc, which are not available under RTI Act, 2005, such an illegal refusal will amount to denial of information which would invite penal proceedings u/s. 20 of RTI Act, 2005.

IGNOU to offer diploma course on Right to Information
In order to encourage people to understand societal relevance of the Right to Information Act and its nuances, the Indira Gandhi National Open University (IGNOU) has decided to introduce certificate and diploma courses in the subject. The Central Information Commission (CIC) has extended its support to the university to work out the courses, which will form compulsory part of the training module for all Central Government employees.

the subject. The Central Information Commission (CIC) has extended its support to the university to work out the courses, which will form compulsory part of the training module for all Central Government employees.

BCAJ Admin

Part B RTI Act, 2005

Delhi High Court criticised the Legislative Department for filing an unnecessary Writ Petition against the Order of Central Information Commission (of M Sridhar Acharyulu, CIC) directing the Government to update and upload all the latest amended bare Acts, to examine the functionality of its e-mail ID and develop an appropriate RTI filing mechanism. Justice Manmohan of Delhi High Court directed Legislative Department to recover Rs.10,000/- which was awarded as compensation by CIC, from the salary of the Government officials who authorized the filing of this unwarranted writ petition and pay the same to the Library. Vansh Sharad Gupta, a student of NLSUI, had filed this RTI application through e-mail, to know the e-mail ID of CPIO, Legislative department. He could not access the text of Indian Christian Marriage Act, 1972 from the website, though he could find the Bare Act. It was impossible to read as that PDF of Bare Act was not formatted and each sentence was intercepted by trash. He appealed to provide the bare Acts (enactments without commentary) in a readable PDF format. The Commission directed the Department to inform the complainant as to what action had been taken including details of the programme of updation, the possible date of its completion, expenditure involved, personnel employed etc. CIC had also directed the petitioner to pay Rs.10,000/- to the library of University, for causing loss of time of several law students, more specifically of the appellant, not providing easy access to email, or not making email ids easily available, delaying the information etc, within one month. The Department chose to challenge this order in Delhi High Court. In the writ petition, Legislation department contended that student never filed an RTI application in the prescribed form with the requisite fee and did not even file first appeal. Rejecting this petition Justice Manmohan held; “This Court is not an appellate Court of the CIC. Technical and procedural arguments cannot be allowed to come in the way of substantial justice. The directions given by the CIC in the impugned order are not only fair and reasonable but also promote the concept of rule of law. It is unfortunate that the petitioner did not take the initiative on its own to upload the latest amended bare Acts. Public can be expected to follow the law only if law is easily accessible ‘at the click of a button’. HC said: “In fact, as rightly pointed out by the CIC, the RTI Act itself mandates the Government to place the texts of enactments in public domain. This Court also took judicial notice of the fact that in challenging the imposition of costs of Rs.10,000/-, the Government of India would have spent more money in filing the present writ petition. Consequently, this Court is of the view that the costs of Rs.10,000/- which was directed to be paid by the CIC, should be recovered from the salary of the Government officials who authorized the filing of the present writ petition”.

Some learning from the case:
1. It is the duty of law ministry to upload updated enactments for people.

2. Department has to change their systems in response to the issues raised in RTI requests.

3. People have right to know law in their own language

4. It is the duty of Law Ministry to disclose the law, which they want people to follow.

5. Public Authority has to pay compensation for violation of sections 4 and 3

6. State should not be a cantankerous litigant

7. There is no routine appeal available from decision of Information Commission

BCAJ Admin

Part A Decision of CIC

CIC judgment: Delhi Lt . Governor reports to Centre can be made available under RTI

The decision by Information Commissioner Sridhar Acharayulu stated that the office of the Delhi Lieutenant Governor (LG) was a “public office” under the RTI Act.

“The Commission agrees with the contention of appellant that Article163(3) of the Constitution does not apply to the Union Territory of Delhi, which could be invoked only in case of a full-fledged state and not to a UT with an assembly like Delhi. Delhi is a union territory and there are specific provisions under the Constitution of India in Article 239AA. There is no mention of any provision like protecting the advice given to LG as available under Article 74 (2) (regarding President) and Article 163 (3) (regarding governors). More over Article 163(3) applies specifically to the ‘advice of a Council of Ministers to the Governor’. The information sought here is a report sent by the UT Administrator to Union Government or President. Article 163 has nothing to do with this communication,” says the order.

Going a step further, the CIC has held that even in case of information given to the President or Governor of a state, the material on the basis of which decisions are taken is not privileged information and is open to scrutiny.

“Even in those cases where Article 163(3) applies, there is no immunity from disclosure,” said the order.

“If the documents pertain to affairs of state, they cannot be withheld by state as privileged documents under Evidence Act, but has to disclose under RTI Act, subject only to section 8 and 9. Privilege for non disclosure of documents in the name of ‘affairs of state’ under Section 123 of Evidence Act is no more available to any public authority with the advent of transparency regime, which overrides the archaic law of privilege as specified in section 22, Right to Information Act 2005. Privilege as an excuse for secrecy of information about affairs of state is antithesis to democracy, and not available,” held the CIC.

“There is no bar against citizen from having a copy of the advice/report of LG to Union government. The Supreme Court has clarified in a landmark case S. R. Bommai case that the material forming basis of advice given to Governor could be subject matter of judicial review, which clearly means information could be disclosed,” said the order.

BCAJ Admin

RIGHT TO INFORMATION (r2i)

PART A I DECISION
OF SIC

SIC awards Rs. 10,000 relief to RTI
applicant

Telangana State
information Commission has awarded a compensation of Rs. 10,000 to a senior
citizen who was fighting for information regarding her revised pension and
other records from the medical department for the last 10 months. Dr TSS
Lakshmi (76), a retired professor of dermatology/Medical Superintendent of
Osmania General Hospital, had filed a Right To Information petition in December
2017 seeking information from the Director of Medical Education on the revision
of her pension details. “Provide me with the xerox copy of my service register
and information of health card and a copy of the proposal for revision of pay
fixation and pension,” said the applicant in the petition. However, the
applicant did not get the required information even after 30 days of the
standard procedure time mentioned under the RTI Act, 2005.

In the follow up hearing of the case, she
was informed by the Public Information Officer that there were no records of
her data. Irked by the PIO’s response, the Chief Information Commissioner Dr
Raja Sadaram Soma ruled in favour of Lakshmi. He said that the complainant
retired in 2002 and that she has been drawing pension from the State,
suggesting that the PIO’s response was not convincing at all.

(Source:http://www.newindianexpress.com/states/telangana/2019/mar/17/sic-awards-rs-10000-relief-to-rti-applicant-1952150.html)

RTI applicant can choose mode of information collection: SIC

The State Information Commission has held
that it is for the information seeker under the Right to Information Act to
choose the mode of collecting the required information and that the State
Public Information Officer (SPIO) has no discretionary power to dictate any
particular mode.The commission made the observation while issuing a show cause
notice to the SPIO of the Revenue Divisional Office, Kottayam, for asking an
information seeker to visit the office and gather the required information by
perusing the relevant files there.

The commission pointed out that as per
section 2(j) of the RTI Act, right to information meant the information held by
or under the control of any public authority and which include the right to
inspect work, documents, records, and take note, extracts or certified copies
of documents or records. The Commission pointed out that section 2(i)(ii)(iii)
and (iv) of the Act spoke of the right of the information seeker to gather
information by adopting his/her own mode of choice.

(Source:https://www.thehindu.com/news/national/kerala/rti-applicant-can-choose-mode-of-info-collection-sic/article26493229.ece)

PART B I RTI ACT, 2005

With the RTI Law in Place,
Rafale Deal Secrets Can’t Be Called ‘Stolen’

For discovering an incriminating document from the defence department, a
journalist is threatened. For attaching those documents to a public interest
litigation, a lawyer is threatened with prosecution under the Official Secrets
Act. The battle is now between the freedom of speech and official secrecy. Can
official deals, if wrongful, be protected under the curtains of secrecy?

In the wake of resistance and criticism from media bodies and the public,
the attorney general said the government had no intention of prosecuting
journalists and lawyers for using the ‘documents’.

Then Centre filed an affidavit on March 13, 2019 stating that those who
leaked were guilty of penal offences including theft. It was claimed that
annexed notes were marked ‘secret’, and exempted from disclosure even under the
Right to Information Act. It also raised a point under the Evidence Act, on the
use of evidence derived from unpublished official records relating to the
affairs of the state without permission.

These claims reflect the intention to attack the review petition on
technical grounds, without condemning the veracity of the contents that
strengthen allegations. First of all, it is not a trial in which admissibility
of evidence need to be thoroughly examined; the government can raise those
points in the trial that happens after the investigation the petitioners
are seeking. The facts of the case have to be considered to decide whether a
probe should be ordered.

The second point is on the documents being marked ‘secret’. Which part of
the deal is secret, and why? The test established by the Supreme Courts of
India and the US in several cases to withhold a document as secret is the
doctrine of ‘clear and present’ danger. The Pentagon Papers case in the
US and Raj Narain’s case against Indira Gandhi in India, the Supreme Courts
laid down the norm that the danger should be so clear that secrecy needs to be maintained.

In Pentagon Papers, failures of the US Army in Vietnam were leaked
by the New York Times, Washington Post and others. The US
government wanted to prevent newspapers from publishing these reports, citing
‘national security’. In the Raj Narain case, the Centre was refusing to
share the blue book for the then prime minister’s visit during electioneering,
even many years after the event. The Centre has a duty to explain how a dissent
note from three negotiators would pose a clear and present danger to
‘security’.

To say that this document could not have been disclosed even under RTI
Act is legally not tenable, because the RTI Act provided for disclosure of
defence details and information from exempted organisations as well in the
context of corruption and human rights violation. The political executive
cannot use the Official Secrets Act and a ‘national security’ defence, without justifying them, to hide the truth and prevent a
probe.

The very origins of the Official Secrets Act was to muzzle the voice of
the opposition and criticism. The pre-independence 1923 Official Secrets Act
promotes secrecy and confidentiality around ‘governance’. It is shocking that
attorney general, representing the Centre, said the prosecution had stolen
‘secret’ documents and pleaded with the Supreme Court not to consider the
stolen parts of the deal papers.

The review of the apex court’s December 14 decision will have very
serious implications because the petitioners – Yashwant Sinha, Arun Shourie and
Prashant Bhushan – are seeking an FIR against Prime Minister Narendra Modi and
others involved in the Rafale deal.

Relying largely on documents published in the media, the petitioners want
the Supreme Court to reverse their conclusion about the absence of alleged
commercial favouritism, because certain critical information was suppressed
from judicial scrutiny.

The AG attacked the review petition, claiming the documents were stolen
and then attached to the petition before the bench, which means the petitioners
are involved. It is in this context that the threat of prosecution under the
Official Secrets Act has to be examined.

Though the AG has retreated from this threat, it has stirred a debate
about practical application of provisions of the Official Secrets Act, because of
their inconsistency with the Right to Information Act, 2005. One must see how
official secrets are valid when transparency is the law and disclosure the
rule. Secrecy is now an exception.

More than a threat to the freedom of press and due process, the use and
abuse of the Official Secrets Act threatens good governance and promotes
corruption.

CULTURE OF SECRECY

As rightly observed by the Second Administrative Reforms Commission, the
Official Secrets Act is founded on colonial mistrust of people and primacy of
officials who deal with citizens. The culture of secrecy was established
through this draconian law.

The commission’s recommendation to repeal it was rejected. In 2017, a
committee of the cabinet secretariat recommended making the Act more transparent,
at least. That was not acted on.

On the one hand, the government fills information commissions with former
bureaucrats to discourage disclosure, and on the other promotes the use of the
Official Secrets Act. The pre-independence Congress party had resolved to
repeal the Act, but every party including the Congress has used it to stifle
voices. When it is used in the forum of the Supreme Court to stall a probe into
the Rafale deal, the public must doubt the commitment to transparency and zero
tolerance of corruption.

Every document is not a secret and every leak is not a crime under the
Official Secrets Act. Criminality lies in “intending to benefit enemy country
directly or indirectly”. Sections 3 and 5 of the Act refer to making or
accessing a sketch, plan, model or note or document which is useful to the
enemy or wrongfully communicating it, which is likely to affect the sovereignty
and integrity of India, security of state or friendly relations with foreign
state.

THE ACT DOES NOT DEFINE ‘SECRECY’

The most interesting factor is that the Officials Secrets Act does not
define ‘secret’ or ‘official secret’, and does not provide a ‘classification’
of documents. The Manual of Departmental Security Instruction (MODSI) of the
Ministry of Defence has laid down procedures and criterion for classification
of documents as ‘top secret’, ‘secret’ and ‘confidential’.

Papers containing vital information which cannot be disclosed for reasons
of national security are classified as ‘top secret’, and these must not be
disclosed to anyone for whom they are not essential. Such papers include
references to current or future military operations, intending movements or
disposition of armed forces, shaping of secret methods of war, matters of high
international and internal political policy, ciphers and reports derived from
secret sources of intelligence.

The ‘secret’ classification is reserved for papers the disclosure of
which could cause administrative embarrassment or difficulty, an internal
breach of peace and amity, injury to the interest and prestige of the
government, or would be of advantage to a foreign nation or enemy.

The ‘confidential’ category is reserved for papers containing information
the unauthorised disclosure of which, while not endangering national security,
would be prejudicial to the interests of the nation, any government activity or
individuals, or would cause administrative embarrassment or difficulty or be of
an advantage to a foreign nation. In S.P. Gupta, the Supreme Court
rejected the criteria of ‘embarrassment to the government’.

OFFICIAL SECRETS ACT VS RTI

Section 2 of the Official Secrets Act defines ‘document’ as ‘document
includes part of a document. This means if any part of the document is secret’,
then the disclosure of part other than ‘secret’ part also can be denied.

Section 10 of RTI Act provided for separation of the ‘secret’ part and
release of the rest.

This is the conflict between these two Acts. Section 22 of the RTI Act
expressly provided that the provisions of the RTI Act shall have effect
notwithstanding 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 any law other than the RTI Act.

This was further fortified in section 8(2), which stated that information
exempted under sub-section (1) or exempted under the Official Secrets Act, 1923
can be disclosed if public interest in the disclosure overweighs the harm to
the protected interest.

The Bofors scandal was the result of a media investigation and the
leakage of key documents. In fact, the official radio of Sweden released
threads of the bribery to Indian dealers behind the Bofors deal with India.
This could happen because there is a Freedom of Press Act in Sweden, which
granted people the right to information back in 1766. The transparency law
ensures corruption-free defence deals.

STOLEN TRUTHS

In this context of a 21^stcentury access law overriding a
97-year-old British relic law of secrecy, one has to see whether all papers of
negotiations, undue increase in the price, irrational preference of Anil Ambani
to HAL, ignoring the ‘make in India’ policy, dissent of three members of
seven-member negotiating team against a parallel bargain by the PMO in Rafale
deal, etc., can be considered as ‘official secrets’.

Even if agreed that they are stolen, as contended by the AG, the
documents accessed by the media are not condemned as false. This strengthens
the plea to review the Supreme Court’s December 14 decision. The government has
a duty to tell the apex court and people which part of the Rafale deal could
harm security interests, and disclose the rest.

Whether citizen, journalist or lawyer, shouldn’t everyone have the right
to criticise and challenge the purchase of Rafale fighter aircraft at a price
much higher than earlier estimated?

M. Sridhar Acharyulu is a former Central Information Commissioner and a
professor of media law at Bennett University.

(Source:https://thewire.in/law/rafale-deal-official-secrets-act-rti)

PART C I INFORMATION ON & AROUND

Movie Ticketing Apps Not Allowed to
Charge ‘Internet Handling Fee’ from Customers, Says RBI In Response to RTI
Query

An RTI query has revealed that portals like BookMyShow levy an extra
‘internet handling fee’ against each ticket, which is in violation of the RBI’s
Merchant Discount Rate (MDR) regulations that were issued by the Reserve Bank
of India on Dec 6, 2017.

As per the regulations, the merchant (in this case, the movie theater)
is supposed to pay an amount to the bank against every transaction made by
customers using a credit or debit card as per MDR regulations.

However, movie ticketing apps may be allowing the merchant to transfer
this fee onto unwitting customers by charging it from them in the form of
“internet handling fee”. This fee includes 18 percent Integrated GST
(IGST) which the customer is supposed to pay.

(Source:https://www.news18.com/news/buzz/rti-bookmyshow-overcharging-customers-rbi-meity-2068071.html)

Rural distress: Farmer suicides in Maharashtra
doubled in last 4 years, reveals RTI

In the last four years, Amravati division, commonly known as Vidarbha,
recorded highest number of suicides, at 5,214.This was followed by Aurangabad
division, also known as Marathwada, with 4,699 farmer suicides.

At a time when drought has been declared in about half of Maharashtra –
about 150 tehsils out of 360 – a Right to Information query has revealed that
the number of farmer suicides in the state has doubled in the last four years.

In a letter to the National Human Rights Commission (NHRC), the
Maharashtra government says between 2011 and 2014, which is when the
Congress-NCP was in power, 6,268 famers committed suicide. The number rose
sharply by 91 per cent to 11,995 from January 2015 till the end of 2018.

“The core issues of farmers related to the distress in the rural
area is mostly related to the credit, cost and the crop pattern adopted by the
farmers. The issues of health, rural unemployment and natural climate are also
very significant,” Kishore Tiwari, head of Vasantrao Shetti Swawalamban
Mission, Maharashtra government.

(Source:https://www.moneycontrol.com/news/india/rural-distress-farmer-suicides-in maharashtra-doubled-in-last-4-years-reveals-rti-3617231.html)

Only one musk deer in country’s zoos,
reveals RTI reply

Only one musk deer is present across zoos in the country, according to a
response obtained under the Right to Information Act.

The Central Zoo Authority, under the Ministry of Environment, Forest and
Climate Change (MoECC), stated that the lone male musk deer was in a zoo in
Himachal Pradesh.

A Noida-based RTI activist had sought details on the population of musk
deer across states in the country, both in zoos as well as in the wild. He had
also asked statistics related to the poaching of the wild species, if any.

“There is only single male musk deer (that) exists in recognized zoo
(Himalayan Nature Park, Kufri as on 31.03.2018),” said the Central Zoo
Authority, which maintains the records of captive animals in zoos.There are
seven musk deer species of the genus Moschus and all of them are endemic to
Asia.

(Source:https://www.tribuneindia.com/news/nation/only-one-musk-deer-in-country-s-zoos-reveals-rti-reply/739473.html)

Does The Office Of CJI Come Under The
Purview Of RTI Act? SC Finally Lists Its Own Appeal Before Constitution Bench

In the list of cases to be heard by the Constitution bench of the
Supreme Court from March 27^th, the Supreme Court has included its
own appeal against a Delhi High Court judgment that had held that the Supreme
Court and the Chief Justice of India are “public authorities” under
the Right to Information Act. Three Judge bench of Delhi High Court comprising
the then Chief Justice A P Shah, Justice Vikramjeet Sen and Justice S
Muralidhar had upheld the single bench judgment that Supreme Court and the
Chief Justice of India have statutory duty to furnish information sought by
citizens regarding the functioning and administration of the Supreme Court. The
single bench had dismissed the challenge against the order of Central
Information Commission whereby it had directed the Supreme Court CPIO to
provide the information requested by Subhash Chandra Agarwal for supply of
information concerning declaration of personal assets by the Judges of the
Supreme Court.

(Source:https://www.livelaw.in/top-stories/constitution-bench-hearing-list-143623)

Only 920 MBBS seats added in 5 years
against 10,000 approved: RTI

Only 920 MBBS (Bachelor of Medicine and Bachelor of Surgery) seats have
been added in the government medical colleges against the approved 10,000, in
the last five years, reveals an RTI.

According to the RTI filed by Chandra Shekhar Gaur, a resident of Madhya
Pradesh, the government has approved 36 medical colleges for adding 2,615 MBBS
seats in Andhra Pradesh, Gujarat, Jharkhand, MP, Odisha, Punjab, Rajasthan,
Tamil Nadu, Uttarakhand, West Bengal, Manipur and Karnataka.

It also released Rs 685 crore in 2015-18 for 12 states for increasing
the number of MBBS seats.

In Andhra Pradesh and Rajasthan, only 50 new seats each have been added
against the approved 150 and 350 seats, respectively, in Karnataka, 350 seats
have been created against the approved 550, the RTI revealed.

In states like Jharkhand, MP, Tamil Nadu, Uttarakhand, West Bengal and
Manipur not a single seat has been added.

According to the RTI, 450 seats were to be created in MP. But even after
sanction of Rs 108 crore in three years for the four government-owned medical
colleges, not a single seat has been added.

In Tamil Nadu, too, over Rs 82 crore has been released by the Centre to
add 345 seats. But the seat count remains the same.

States like Odisha (200 seats), Gujarat (170 seats) and Punjab (100
seats) have upgraded their medical colleges and increased the requisite number
of MBBS seats.

In 2014, a cabinet committee of the UPA government had approved the
Ministry of Health and Family Welfare’s proposal relating to the
Centre-sponsored scheme for upgradation of government medical colleges and
increasing the number of MBBS seats. It was also announced that Rs 10,000 crore
would be invested for increasing the MBBS seats. Of this, the Centre was to
contribute Rs 7,500 crore and states/UTs Rs 2,500 crore.

The funding pattern was to be 90:10 between the central and the state
governments for northeastern states and the special category states. The ratio
of 70:30 was decided for other states.

Creation of one MBBS seat cost around Rs 1.20 crore, according to the
cabinet committee in 2014.

Again in 2018, the cabinet approved the proposal for adding 10,000
under-graduate seats by 2020-21 and 8,058 post-graduate seats — 4,058 in the
first phase by 2018-19 and 4,000 in the second phase by 2020-21.

(Source:https://www.moneylife.in/article/only-920-mbbs-seats-added-in-5-years-against-10000-approved-rti/56456.html)

Two years after demonetisation: Okaying
note ban, RBI rejected govt claim on black money, fake notes

Less than four hours before Prime Minister Narendra Modi announced
demonetisation on November 8, 2016, the Central Board of the Reserve Bank of
India (RBI) gave its approval to the scheme but also rejected, in writing, two
of the key justifications — black money and counterfeit notes — that he would
make in his televised address to the nation.

The minutes of the 561^st meeting of the RBI’s Central Board,
which was convened hurriedly in New Delhi at 5.30 pm that day, reveal that the
central bank’s directors described the move as “commendable” but also warned
that demonetisation “will have a short-term negative effect on the GDP for the
current year”.

The minutes were signed by RBI Governor Urjit Patel on December 15,
2016, five weeks after the meeting was held. In all, six objections, described
as “significant observations”, were recorded in the minutes by the RBI Board.
The RBI directors, after receiving a proposal draft of the scheme from the
Ministry of Finance on November 7, 2016, argued that the government’s
reasoning, that the withdrawal of HD (high denomination) currency notes of Rs
1,000 and Rs 500 would help in curbing black money and restrict circulation of
counterfeit cash, did not really hold good.

The minutes list out the justifications given by the Ministry of
Finance.

RBI Red Flags

• Short term
negative on GDP

• Rs. 400 crore
fake notes not very significant share of total cash

• Most black money
not held in cash but gold, real estate • Adjustment for inflation, difference
between economic growth and cash available not so stark.

(Source:https://indianexpress.com/article/india/two-years-after-demonetisation-okaying-note-ban-rbi-rejected-govt-claim-on-black-money-fake-notes-5438516/)

SBI has found fraud worth Rs 7,951.3
crore in Apr-Dec: RTI reply

The State Bank of India has said as much as Rs 7,951.29 crore involving
1,885 cases of fraudulent activities have come to light during the first nine
months of the current fiscal year. In a reply to a right to information query,
the nation’s largest lender said, the first quarter reported 669 cases of
fraudulent activities amounting to Rs 723.06 crore, the second quarter saw 660
cases involving an Rs 4,832.42 crore and the third quarter reported 556 cases
amounting to Rs 2,395.81 crore. According to RTI activist Chandrashekhar Gaud,
the bank shared the data on Feb. 25.

Though he had also sought information about the financial losses to its
customers due to these fraudulent activities, the SBI refused to share the same
saying such information is exempted from disclosure under section 7 (9) of the
RTI Act of 2005. The bank did not share details of frauds such as phishing,
online, debit, credit cards fraudulent transactions or borrowers engaging in
fraudulent activities with the borrowed money.

(Source:https://www.bloombergquint.com/business/sbi-has-found-fraud-worth-rs-7-951-3cr-in-apr-dec-rti-reply#gs.1xytaa)

Maharashtra: No internal committees in
ministers’ offices to receive, address sexual harassment complaints

In a response to a Right to Information (RTI) application filed by The
Indian Express, the office of Maharashtra Chief Minister Devendra Fadnavis said
no IC has been established. In addition, none of the ministers’ offices have
such an IC either.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013, mandates that all places of employment with 10 or more
employees are mandated to have a functioning IC. While the Maharashtra CM
Secretariat has 110 employees, including 20 women, all the ministers’ offices
have more than 10 employees. In all, there are 38 ministers, including the
Chief Minister.

An RTI request was filed with the CM Secretariat seeking to know the
date of formation of the IC as per the provisions of law. In its reply, Public
Information Officer Geeta Yadav said, “The establishment works related to the
CM Secretariat is handled by the Desk 21 of the General Administration
Department (GAD),” and hence, such a committee was not established at the CM
Secretariat. “However, appropriate action is being taken in the matter after
seeking remarks from the concerned departments,” the reply added.

(Source:https://indianexpress.com/article/cities/mumbai/no-internal-committees-in-ministers-offices-maharashtra-sexual-harassment-complain-5605934/)

PART D I RTI CLINIC-SUCCESS STORY

RTI Clinic of BCAS was approached by Mr.
Gandhi whose goods (Bales) were in the custody of the GST department and a
penalty was charged to him. It was mentioned that on payment of the penalty his
goods would get released by the department, but even after 3 months of paying
the penalty the goods were not released. After filing of a RTI application the
goods were released by the department.

RTI Clinic in April 2019: 2^nd, 3^rd,
4^th Saturday, i.e. 13^th, 20^th and 27^th 11.00 to 13.00 at BCAS premises. _

BCAJ Admin

RIGHT TO INFORMATION (r2i)

The column r2i was started in November,
2005 by Narayan Varma. The feature aimed to cover changes in the Act, RTI
success stories, current developments/issues and RTI decisions. The idea was to
encourage the members to use the power of RTI and become effective citizens.

Narayanbhai
single handedly wrote it for nearly 15 years till he was joined by 2 young
members. Since his passing away, Jinal Sanghvi has been writing it as the sole
author. When we asked her what keeps her going, she said: “The zeal of my
mentor, Varma sir and his dedication and love towards RTI”

PART A DECISION OF SUPREME COURT

? EVM is ‘information’ under
Right to Information Act, rule Central Information Commission

An Electronic Voting Machine (EVM) is “information” under the Right to
Information Act, the Central Information Commission has ruled.

The Commission was hearing the appeal of an RTI applicant who had asked
the Election Commission for an EVM but was denied.

Chief Information Commissioner (CIC) Sudhir Bhargava ruled that “the EVM
which is available with the respondent [ECI] in a material form and also as
samples … is an information under the RTI Act.”

EVMs have been in the spotlight recently as several Opposition leaders
have raised doubts about the credibility of the machines. They have also
demanded that the ECI cross-check 50% of results with voter-verifiable paper
audit trails (VVPAT) in the upcoming Lok Sabha poll.

Mr. Bhargava noted that the definition of information under Section 2(f)
of the RTI Act includes “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…”

The CIC upheld applicant Razaak K. Haidar’s contention that the terms
“models” and “samples” should apply to an EVM.

ECI Under-Secretary Soumyajit Ghosh admitted that “models/samples of EVM
are available with the ECI, but the same are only kept for training purpose by
the ECI, and not saleable to the general public.”

Fresh argument

Mr. Ghosh also argued that the information was exempted from disclosure
under section 8(1)(d) of the RTI Act as “the software installed in the machines
is an intellectual property of a third party, the disclosure of which would
harm the competitive position of the third party concerned.”

Mr. Bhargava noted this fresh argument, but did not rule on it. Instead,
he directed the ECI to file an appropriate response to the appellant within
four weeks, as it had erroneously denied the information sought, using Section
6(1) of the RTI Act, which does not deal with grounds for exemption.

(Source:https://www.thehindu.com/news/national/evm-is-information-under-right-to-information-act-rule-central-information-commission/article26358323.ece
)

PART B RTI ACT, 2005

? BCAS Right To Information
Clinic

• Year of Commencement: 2006

• Total years the Clinic has
been in operation: A little more than 12 years

• Fees charged: No fees charged
/ Services are provided pro-bono

• Days of operation: 2^nd,
3^rdand 4^th Saturday of every month

• Timing: 11:00 am to 1:00 pm at
BCAS premises

• RTI applications made or
advised provided: Average of 5 per week

n Some Matters dealt under RTI by the clinic:

n State Government, Central Government, MCGM
(BMC), Income Tax, Sales Tax, Gifts Tax, Wealth Tax, Service Tax, Value Added
tax (VAT), GST, Professional Tax, MTNL, BEST, Railways, Excise Duty, Police,
Bank, Bond, Co-op Banks, Co-op Societies, Voter ID Cards, Caste Certificates,
PPF, EPF, Pension, Air India, MHADA amongst many others.

• Objective of the Right to
Information Act: The basic object of the Right to Information Act is to empower
the citizens, promote transparency and accountability in the working of the
Government, contain corruption, and make our democracy work for the people in
real sense. It goes without saying that an informed citizen is better equipped
to keep necessary vigil on the instruments of governance and make the
government more accountable to the governed. The Act is a big step towards
making the citizens informed about the activities of the Government.

• The RTI Act empowers Indians
to do the following:

Request any information from any public office, Take copies of the
documents, Inspect those documents, Inspect the progress of works and, Take
samples of materials used at work sites

PART C IINFORMATION
ON & AROUND

Unaided schools, colleges under RTI ambit
now

Students and their parents running from pillar to post for getting
information from unaided privately managed high schools, secondary schools and
colleges have a reason to cheer as the Chief Information Commission (CIC) has
ruled that all recognised unaided high, secondary schools and colleges fall
under the preview of the Right to Information (RTI) Act.

Consequently,
the Director, Higher Education, has designated all District Education Officers
(DEOs) as Public Information Officers (PIOs) of respective districts for
furnishing relevant information, while the Additional Director or Joint
Director (Administration) will be the first appellate authority under the Act.

The question whether purely private high schools and colleges, not
getting any aid from the government be brought under the preview of the RTI
Act, had been there for quite some time. Following an appeal filed by one
Balbir Singh, the state CIC had issued directions to the Education Department
to appoint the PIOs and an appellate authority for these educational
institutions to facilitate people at large to seek information under the RTI
Act, 2005.

Now, the CIC has passed interim orders in appeals filed against a
senior secondary school in Una district and a high school in upper Shimla,
saying: “Given the definition of ‘information and appropriate government’ in
section 2(f) and section 2(a) of the RTI Act, the information available with
the ‘public authority” (Education Department) under the Right to Education
Act-2009, the HP Private Education Institutions (Regulation) Act-1997 or any
other regulatory mechanism related to any private body which can be accessed by
a ‘public authority’ is covered under ‘information’ and the same has to be
provided by the Education Department.

(Source:https://www.tribuneindia.com/news/himachal/unaided-schools-colleges-under-rti-ambit-now/735081.html)

In RTI Reply To Telangana Voter
Deletions, Poll Commission Admits Lapses

The names of a large number of voters in Telangana were deleted from
electoral rolls without due procedure ahead of last year’s assembly elections,
responses to queries under the Right To Information Act has revealed.

Reports of large-scale voter deletions had sparked anger during the
Telangana elections on December 7. It had been reported how a software that
linked voter IDs with Aadhaar may have played a role in the deletions.
Responses to RTI queries now show there were flaws in the verification process.

A letter dated 8^th August 2015, written by then Chief
Electoral Officer of Telangana, Bhanwar Lal, to Sumit Mukherji, Secretary of
the Election Commission, states “door to door verification not conducted
properly” in 24 assembly seats of the Greater Hyderabad Municipal
Corporation Area and there were “many complaints that BLOs (Booth Level
Officers) have not visited houses”.

Between February and August 2015, the Election Commission had carried
out the National Electoral Roll Purification and Authentication Programme or
NERPAP, as part of which, voter IDs were linked with Aadhaar through a software
to weed out duplicates.

But before someone cane be deleted, the name has to be on electoral
rolls first.

Rules say the Election Commission has to go door-to-door issuing a
notice to each voter. If a house is
locked, the official is supposed to visit two more times and even then if the
voter is not available, he has to paste a sticker asking her to contact the EC.

Replies to the RTI indicate this was not done.

Srinivas Kodali, a cybersecurity researcher who filed the RTI, claims
the Commission is hiding a lot more.

“The Election Commission, UIDAI and Chief Electoral Officer of
Telangana have consistently denied the role of Andhaar and state resident data
hub on voter deletions,” he said, accusing them of hiding facts.

“Even now, we don’t know the details of the pilot projects which
have taken place in Telangana. The Election Commission must answer for this.
They need to delete Aadhaar data with them, voter data with government and give
the lists of deleted voters”.

Rajath Kumar, the current Chief Electoral Officer of Telangana, claims
even if some names were deleted, the Commission has solved the issue by giving
ample opportunity to voters.

“The NERPAP exercise was carried out in 2015 and subsequently
there have been not only the annual revisions in 2016, 2017 and 2018, but we
also had the elections in 2018, during which 26 lakh voters were registered,
both new as well as those who got re-enrolled,” Mr Kumar said.

The commission, he said, has carried out a drive now to prepare the
list with effect from 1^stJanuary in which 17.72 lakh voters have
come in, “so we have given maximum amount of opportunity for those whose
names were deleted at that time”.

“The best that I can do as current CEO is to give them maximum
opportunity to re-enroll themselves,” Mr Kumar added.

(Source:https://www.ndtv.com/telangana-news/in-rti-reply-to-telangana-voter-deletions-poll-commission-admits-lapses-1999191
)

Cryptocurrencies in India legal,
regulation in final stages, reveals RTI query

The Indian government is in the final stages of formulating regulations
on cryptocurrencies, according to an RTI response from the Department of
Economic Affairs.

The response was with regard to the RTI filed by Coin Crunch India on
December 13, 2018, asking whether the panel on cryptocurrency has recommended a
ban on Bitcoin and if they have submitted the report to the Ministry of
Finance.

“The report of the Committee is in the finalisation stage, hence,
prohibited under section 8(3) of RTI Act, 2005,” the ministry said in its
response.

(Source:https://www.moneycontrol.com/news/business/cryptocurrency/indias-cryptocurrency-regulation-in-final-stages-3447481.html)

Pune RTI activist found dead

An RTI activist missing since January 30 was found dead in Pune
district, a police officer said on Tuesday.

Police suspect Vinayak Shirsath, 32, was murdered.

The decomposed body was found near a village on Lavasa Road on Monday
evening, the officer said.

Shirsath, a resident of Pune city, was reported missing on January 31.
His family had registered a police complaint.

“We later registered a kidnapping case on February 5 after his
family raised a suspicion that he might have been abducted as he had raised his
voice under the Right to Information (RTI) Act against illegal construction
work in some parts of the city,” the police officer said.

Shirsath’s family pointed fingers at several people linked to the real
estate sector, but during the probe all of them were found to be close friends
of the deceased, he said.

A case has now been registered under IPC sections 302 (murder) and 201
(causing disappearance of evidence of offence) and a probe is under way, the
police said.

(Source:https://www.telegraphindia.com/india/pune-rti-activist-found-dead/cid/1684353)

RTI Clinic in March 2019: 2^nd, 3^rd, 4^th
Saturday, i.e. 9^th, 16^th and 23^rd 11.00 to 13.00 at BCAS premises.

BCAJ Admin

RIGHT TO INFORMATION (r2i)

PART A DECISION OF SUPREME COURT

u Supreme
Court slams centre for keeping names of applicants for Information
Commissioners’ post secret; asks it to make them public

The Supreme Court (SC) has directed the Centre to publish names,
criteria and other details of search committee’s work so far for appointments
to the Central Information Commission, under the Right to Information (RTI)
Act.

The case pertained to the inordinate delay in filling up the vacancies
of crucial posts of Central Information Commissioners (CICs) and Information
Commissioners (ICs), the SC order is a big boost for activists, who have
campaigned tirelessly for transparency in selection of information
commissioners.

The SC directive follows an affidavit submitted by the central
government in court today. The Government had earlier committed to decide on
vacancies even before a public interest litigation (PIL) for appointment of
Commissioners was filed. It told the SC today that it had received 65
applications for the post of the Chief Central Information Commissioner and 280
applications for the four posts of Information Commissioners. The affidavit
states that the government has shortlisted names for the post of CIC. However,
after the latest SC directive, the government will have to publish these names
on its website, before it selects the chief information commissioner.

As for the eight other States that were also asked to file an affidavit,
the Telangana government has said that it was busy with elections so the SC has
given it two more weeks to file its affidavit. The petitioners bought it to the
notice of the court that there were 10,000 second appeals pending with this
State Commission. The Odisha government’s affidavit states that a selection
committee has been formed to fill up four vacancies for ICs.

It may be recalled that a writ petition was filed by activists Anjali
Bharadwaj, Amrita Johri and Commodore Lokesh Batra (retd). The reason for this
petition was that “under the Right to Information (RTI) Act, the Central
Information Commission (CIC) and State Information Commissions (SIC) have been
created as statutory bodies to decide appeals and complaints against public
authorities, for non-compliance with the RTI law. The proper functioning of
these institutions is essential for effective implementation of the RTI Act.
The RTI law provides that the CIC must consist of a Chief Information
Commissioner and ten information commissioners.”

In an earlier hearing on 27^th July, 2018, the SC had directed
the central government to file an affidavit stating how many posts it proposed
to fill, based on the advertisement issued, the time schedule for filling the
posts, why appointments were not made subsequent to a 2016 advertisement and
measures to ensure transparency in the process of appointment – all this was
highlighted in the PIL. In addition, eight state governments, who are
respondents in the case, were also directed to file affidavits enumerating the
steps they are taking for filling up vacancies, the time frame within which
these will be filled and the procedure of appointment.

Incidentally, Chief
Information Commissioner Radha Krishna Mathur, and three Central Information
Commissioners – Prof. M Sridhar Acharyulu, Yashovardhan Azad and A
Bhattacharyya, retired in the last week of November 2018. That makes for eight
vacancies in the Commission.

Besides the legal intervention sought, former Central Information
Commissioner, Prof Acharyulu too kept up the pressure on government by writing
a letter to the President of India, Ram Nath Kovind, last week regarding the
inordinate delay in appointing information commissioners.

Prof. Acharyulu in his letter stated: “…the Government of India should have
completed process of appointing the Chief Information Commissioner before the
retirement of Shri Radha Krishna Mathur, to be ready to take over the
administration of the Commission without any gap, because the RTI Act has not
envisaged any vacancy in that high position at any point of the time. The
Commission has experienced absence of administration for several months as the
Government did not appoint Chief Information Commissioner, three years ago,
after retirement of the then Chief. Unfortunately now also that position is
left vacant since 22^nd November, 2018. Similarly leaving seven
positions of CICs also will lead to increase in the pendency of second
appeals/complaints. The delay in information amounts to denial of information
and delay in information justice also means its denial.”

During the hearing on the 3^rdDecember, the petitioners had
pointed out that at present there were vacancies in the Central Information
Commission, including that of the Chief and the backlog of appeals/complaints
had risen to more than 26,000. They also pointed out that the advertisement
issued by the central government for the posts of Information Commissioners and
the Chief Information Commissioner did not specify the salary and tenure, even
though these are specifically defined in the RTI Act & therefore, the
advertisements were not in keeping with the RTI law. All previous
advertisements for the posts specified the salary and tenure. Upon being
questioned about the anomaly in the advertisements, the counsel for the central
government stated that the government was intending to amend the RTI Act.

Prof Acharyulu, former Central Information Commissioner has appealed to
President of India for appointment of eminent persons from fields other than
Administration to the CIC. His letter says:

“I would like produce the text of Section 12(5) of RTI Act 2005 for
ready reference, at this juncture:

The Chief Information Commissioner and Information Commissioners shall
be persons of eminence in public life with wide knowledge and experience in
law, science and technology, social service, management, journalism, mass media
or administration and governance.”

“In this context, as a person who worked as Central Information
Commissioner for five years till recently, I request your Excellency to
consider following suggestions:

1. As the Chief Information
Commissioner in all these 13 years was selected from the field of
Administration only, at least, this time an eminent person from the field other
than Administration may be selected; and if for any reason, the Government
decides to select a retired bureaucrat once again, it should ensure that he had
credentials of integrity, commitment towards transparency and has never
supported or promoted any kind of secrecy in administration. The people have a
right to know this kind of background of the Chief and other Commissioners. The
Government should also commit itself to appoint next Chief Information
Commission from other than bureaucrats.

2. As mandated by section 12(5) of the RTI Act,
the Government of India has a statutory duty to select at least one person of
eminence each in public life with wide knowledge and experience from the fields
of (1) law, (2) science, (3) technology, (4) social service, (5) management,
(6) journalism, and (7) mass media. As the Government has already appointed
three eminent persons with experience in administration, who are working now,
the Committee, as a principle, should not consider the persons from this field
for this time.

3. Whenever
the Selection Committee convenes, from now onwards, it shall select one eminent
person of experience each from these fields necessarily for making the Central
Information Commission representative of multiple fields of public activity and
truly democratic. With experts from various fields, there will be no scope for
bureaucratic majority or domination in its administration besides accommodating
different view-points. If the Government selects more number of former
bureaucrats for these posts, it will in breach of letter and spirit of
transparency law and more particularly that of Section 12(5) of RTI Act, which
may not stand the scrutiny by the Judiciary.

4. The Selection Committee should also ensure
that the new Commissioners appointed shall have the complete independence with
regard to the term, status and salary as provided by the RTI Act. Their term,
status and salary shall not be ‘as
prescribed’ by the Central Government’ as contemplated by the present
Government in the proposed Amendment to RTI Act.

5. The
Government shall ensure that it will not interfere in the functioning of
Central Information Commission and also to insulate the office of Chief
Information Commissioner or individual commissioner from direct or indirect
pressures or interferences from any of its offices such as PMO or the Ministry
of DoPT.

6. The
Government shall not introduce the RTI (Amendment) Bill, 2018 and shelve it
permanently, in the interest of transparency of administration and good
governance.

7. Hereafter, the Government shall fill every vacancy promptly so that
a new Chief/Commissioner takes over the charge from the retiring Commissioner
without any gap.

(Source:https://www.moneylife.in/article/sc-slams-centre-for-keeping-names-of-applicants-for-information-commissioners-post-secret-asks-it-to-make-them-public/55914.html
)

PART B RTI ACT, 2005

u
Maharashtra facilitates inspection of files. Here is how to do file inspection
under RTI

Recently, the Maharashtra government took an
important step towards transparency through a government resolution (GR) which
directs every public authority in the state to provide two hours, once a week,
for citizens to walk into the government offices, for inspection of files u/s.
4 of the RTI Act. However, even though citizens can demand to see documents
under this provision, not many know how to go about it.

In order that such a useful and
citizen-friendly initiative is not lost due to citizens’ inhibition or
ignorance, here are some tips on how to be on top of the board.

Just to
reiterate, inspection of files was pioneered in Pune way back in 2005 and
followed thereafter by the Pune Municipal Corporation (PMC) in 2009, directing
its public authorities to keep every Monday, between 3pm and 5pm, open for
citizens to inspect files. At that time, even public information officers
(PIOs) or heads of public authorities were not aware that it is not necessary
for a citizen to write an application for inspection of files u/s. 4 of the RTI
Act.

In fact, I remember when I met the
secretary, environment in the Mantralaya to inspect files regarding Dow
Chemicals in 2010, despite my having sent him an email and an SMS (as I was
coming to Mumbai from Pune), he asked me to write an application.

I convinced him that I was not required to
do so and the following note made by the late Prakash Kardaley and Vijay
Kumbhar came in handy for me. (The secretary, environment then spoke to his
legal cell about this provision in front of me and then asked his executive
director to show me all the files pertaining to Dow Chemicals and directed him
to give me any photo copies that I wanted).

Thus, when any citizen goes for file
inspection, I would suggest you carry the following note which will be an
eye-opener to the PIO, besides arming you with the required ammunition. Here it
is:

1. Your kind attention is drawn to section 4
of the Right to Information Act, 2005 under Chapter II on `Right to Information
and Obligation of Public Authorities’.

2. As
per the provision, it is obligatory for every public authority (including
xxxxxx name the office you would be visiting) to publish certain
categories of documents so as to make voluntary disclosure of information so
that citizens have “minimum resort to the use of this Act to obtain
information.”

3. Information
covered by section 4, in fact, should have been published on 12^th
May, 2005 and disseminated widely in such form and manner which is easily
accessible to the public and should have been updated at regular intervals
later.

4. It
is further explained in the provision that ‘disseminated’ means making known
or communicated the information to the public through notice boards,
newspapers, public announcements, media broadcasts, the internet or any other
means, including “inspection of offices of any public authority. “
I am enclosing here the full text of section 4 as adopted by the Parliament of
India for your reference.

5. I
regret to bring to your notice that no information covered under this section 4
has been disseminated yet by you, a public authority under the state
government, through notice boards, newspapers, public announcements, media
broadcasts and Internet.

6.
Nevertheless, citizens have a right to inspect these documents in the office of
the public authority, including the (xxxx name the office), as
explicitly mentioned in the provision u/s. 4.

7. It
may be noticed that a citizen desiring to inspect the documents containing
information covered u/s. 4 of the Right to Information Act, 2005, need not make
any formal requisition u/s. 6 of the Act because these documents should have
already been published by the public authority (including xxx name the office)
so that citizens have “minimum resort to the use of this Act to obtain
information.”

8.
Implementation of this provision of the Act (u/s. 4) is the direct
responsibility of the head of the public authority. In this specific instance,
it is your direct responsibility as the municipal commissioner and the
administrative head of the Pune Municipal Corporation. Hence this letter is
addressed to you and not to any public information officer (PIO) since no
formal requisition is needed to be filed, please note.

In case the public authority insists on a
formal letter, then write it this way, says RTI activist Vijay Kumbhar:

VERY IMPORTANT NOTE: Intimation of inspection u/s. 4 should be addressed to the top
authority of the government department (meaning the municipal commissioner, if
it is a municipal corporation) unlike an application u/s. 6 which is addressed
to the public information officer (PIO).

Draft of intimation

The Head of the Department

Subject – Intimation for inspection of files
related to xxxxxxxxxx

Dear Mr. Head of the Department

As per the circular sankirn2018/ pra.kra.
45/ karya 6, dated 26/11/2018, the government of Maharashtra has allowed
inspection of files in every department. Please note that as per section 4 of
the RTI act and as per the said circular there is no need to give any
intimation for inspection of files in any public authority. However, being
responsible citizens, we thought it preferable to intimate you beforehand.

I intend to exercise my right as a citizen
to inspect documents related to xxxxxx. I will visit your office on Monday
xx/xx/2018.

Thanking you

With Regards

Citizens must remember they are the
custodian of most government files, except the ones u/s. 8 of the RTI Act, says
Kumbhar and, therefore:

• As these files belongs to citizens and
citizens are owners of these files they should not to feel awkward, guilty or
hesitate to demand a file for inspection

• Remember, once a citizen gives them the
intimation, the citizen should not have to wait for a reply from the
officer, simply because a citizen has
the right to inspect files during the designated working hours of the public
authority. The intimation is just for the purpose of convenience and to avoid
excuses by officials.

• Once citizens have gone through the documents
they can ask for the copies of the inspected documents. To obtain such copies,
u/s. 6 of the RTI Act, one need not give an application. Merely giving a list
of document on plain paper is enough. However, they need to pay the fees
required for photocopying.

Text
of Section 4 of the Right to Information Act, 2005

4. (1)
Every public authority shall

(a)
maintain all its records duly catalogued and indexed in a manner and
form which facilitates the right to information under this Act and ensure that
all records that are appropriate to be computerised are, within a reasonable
time and subject to availability of resources, computerised and connected
through a network all over the country on different systems so that access to
such records is facilitated;

(b)
publish within one hundred and twenty days from the enactment of this
Act,-

(i) the particulars of its organisation,
functions and duties;

(ii) the powers and duties of its officers
and employees;

(iii) the procedure followed in the decision
making process, including channels of supervision and accountability;

(iv) the norms set by it for the discharge
of its functions;

(v) the rules, regulations, instructions,
manuals and records, held by it or under its control or used by its employees
for discharging its functions;

(vi) a statement of the categories of
documents that are held by it or under its control;

(vii) the particulars of any arrangement
that exists for consultation with, or representation by, the members of the
public in relation to the formulation of its policy or implementation thereof;

(viii) a statement of the boards, councils,
committees and other bodies consisting of two or more persons constituted as
its part or for the purpose of its advise, and as to whether meetings of those
boards, councils, committees and other bodies are open to the public, or the
minutes ‘of such meetings are accessible for public;

(ix) a directory of its officers and
employees;

(x) the monthly remuneration received by
each of its officers and employees, including the system of compensation as
provided in its regulations;

(xi) the budget allocated to each of its
agency, indicating the particulars of all plans, proposed expenditures and
reports on disbursements made;

(xii) the manner of execution of subsidy
programmes, including the amounts allocated and the details of beneficiaries of
such programmes;

(xiii) particulars of recipients of
concessions, permits or authorisations granted by it;

(xiv) details in respect of the information,
available to or held by it, reduced in an electronic form;

(xv) the particulars of facilities available
to citizens for obtaining information, including the working hours of a library
or reading room, if maintained for public use;

(xvi) the names, designations and other
particulars of the public information officers;

(xvii) such other information as may be
prescribed; and thereafter update these publications every year;

(d)
provide reasons for its administrative or quasi-judicial decisions to
affected persons;

(2)
It shall be a constant endeavour of every public authority to take steps
in accordance with the requirements of clause (b) of s/s. (1) to provide as
much information suo motu to the public at regular intervals through various
means of communications, including the internet, so that the public have
minimum resort to the use of this Act to obtain information.

(3)
For the purpose of s/s. (1), every piece of information shall be
disseminated widely and in such form and manner which is easily accessible to
the public.

(4)
All materials shall be disseminated taking into consideration the cost,
effectiveness, local language and the most effective method of communication in
that local area and the information should be easily accessible, to the extent
possible in electronic format with the central public information officer, or
state public information officer, as the case may be, available fee or at such
cost of the medium or the print cost price as may be prescribed.

Explanation: For the purposes of s/s. (3)
and (4), “disseminated” means making known or communicated the
information to the public through notice boards,
newspapers, public announcements, media broadcasts, the internet or any other
means, including inspection of offices of any public authority.

(Source:https://www.moneylife.in/article/maharashtra-facilitates-inspection-of-files-here-is-how-to-do-file-inspection-under-rti/55946.html )

PART C INFORMATION ON & AROUND

u 384 tigers killed
in India in last 10 years, reveals RTI

A total of 384 tigers have been killed by
poachers across the country in the last ten years, which translates to over
three a month, a reply under the Right to Information has revealed.

Between 2008 and 2018 (till November), 961
persons have also been arrested for allegedly poaching tigers, it said. The
information was given by the Wildlife Crime Control Bureau or WCCB in response
to a Right to Information (RTI) query filed by Noida-based advocate Ranjan
Tomar.

Tomar also an RTI activist, had asked the
WCCB the number of tigers killed by poachers in the last ten years and the
people arrested and convicted for the same. “As per the data available in
records of the Bureau based on the information received from the State Forest
and Police authorities the total number of tigers killed by poachers in the
last 10 years is 384 and 961 number of poachers arrested in the tiger
cases,” the reply stated. However, the bureau said that no information was
available with it regarding conviction of the accused in these cases.

“The data makes it clear that
successive governments have not been able to check killing of tigers by
poachers and therefore there is a need for a special initiative to conserve
this wild species or make changes in current laws to make them more effective else,”
Tomar said.

For conservation of the country’s national
animal, the government had launched ‘Project Tiger’ in 1973. As per a 2014
assessment, India has the highest number of tigers in the world at 2,226,
according to the website of the Ministry of Environment, Wildlife and Climate
Change.

(Source:https://economictimes.indiatimes.com/news/politics-and-nation/384-tigers-killed-in-india-in-last-10-years-reveals-rti/articleshow/66984490.cms
)

u Mumbai
University examinations in question after they receive 76,828 revaluation
applications

Mumbai University has been infamous for its
mismanagement and inability to cope up with the examinations. In an addition to
the list, Mumbai University has seen a sudden spike in the number of
revaluation applications for the academic year 2017-18. The information was
received after a Right To Information (RTI) application was filed for the same
and therefore, it raises questions against the paper checking process. Revaluation is a facility introduced by the
University for students who are dissatisfied with their score in an examination
or for students who have failed in an examination. However, in order to receive
the benefit of the procedure, the students are obliged to pay a specific amount
of money to the University as ‘Revaluation Fees’, after which the answer sheet
is re-checked by the University. Shoumitkumar Salunkhe had asked for
information of the number of revaluation applications received between June,
2017 and November, 2018. After which, he learned that as compared to the
applications that were received during October, 2017 (60,712 applications), the
applications received during May, 2018 (76,828 applications) had exponentially
increased. And it was crystal clear that the number of applications was growing
every day. However, clarifying on the matter, a University official stated that
the increase in the number of revaluation applications is a result of
University’s decision to reduce the fee to Rs.
250 from Rs. 500. He stated that due to this, the students have been active in
demanding revaluation as the prices are low.

(Source:https://www.mumbailive.com/en/education/more-than-75-thousand-answer-sheet-submitted-for-rechecking-in-mumbai-university-31378 )

u Jammu
& Kashmir (J & K Bank) is now under Right to Information Act

J & K Bank (Jammu & Kashmir Bank)
has been brought under the ambit of the Right to Information Act (RTI) Act,
Chief Vigilance Commissioner (CVC) and the Legislature of the State in Jammu
and Kashmir. The official said on Friday that on Thursday evening under the
chairmanship of Governor of Jammu and Kashmir, Satyapal Malik and State
Administrative Council (SAC), in which the proposal to recognise ‘J & K
Bank’ as Public Sector Undertakings (PSU) has been passed. The SAC approved the
proposal that the Jammu and Kashmir Right to Information Act, 2009 will now be
applied to the Jammu and Kashmir Bank, just like the other banks under the PSU.
He told that besides this, the bank will now have to accept the guidelines of
the CVC.

He said that like the other PSUs of the
state, ‘J & K Bank’ will also be accountable to the state assembly. The
bank’s annual report will be presented in the assembly by the State Finance
Department.

However, Former Chief Minister Mehbooba
Mufti demanded to cancel the decision of the Governor to include Jammu and
Kashmir Bank in the category of PSUs. She said that the involvement of the
Jammu and Kashmir Bank in the category of PSU is a part of the conspiracy to
end the state’s special status.

The state administration has clarified that
there is no intention of interfering in the banking system. The Board of
Director of the Bank is the best and it is his autonomous. RBI will work to
regulate RBI as before. The purpose of the decision of the State
Administrative Council is to bring better governance and transparency in the
functioning of the bank. Applying the Jammu and Kashmir Bank to RTI and
implementing the guidelines of the CVC is just to bring transparency.

The bank will be accountable to the state
assembly and its annual report will be present in the state assembly itself.
The right transparency in the bank will come from the RTI Act. All
administrative and recruitment rules are related to it. Union Minister of
State, Dr. Jitendra Singh said that some families living in the state’s
power have been misusing their bank to understand their estate. The governor’s
decision is in line with the Center’s decision to increase transparency in
financial institutions.

(Source:https://www.newsfolo.com/india/jammu-kashmir-j-k-bank-now-right-information-act/156659/)

u CIC brings
BCCI under Right to Information Act

The worst fears
of an Indian cricket selector are about to come true. BCCI has been brought
under the ambit of the Right to Information Act and faces the direct prospect
of being answerable to the country and its public in the near future. The
Central Information Commission (CIC) — the top appellate body in all matters
related to this 2005 Act of the Parliament of India — has directed the BCCI to
be brought under the RTI Act and put in place, within two weeks starting
Tuesday, online and offline mechanisms to receive applications for information
under the RTI Act. Will a selection committee meeting now be public info? “The
BCCI should be listed as a National Sports Federation (NSF) covered under the
RTI Act. The RTI Act should be made applicable to the BCCI along with its
entire constituent member cricketing associations, provided they fulfil the
criteria applicable to the BCCI, as discussed in the Law Commission’s report,”
CIC Commissioner Sridhar Acharyulu said. Those who oversee the day-today
functioning of the BCCI say they are least bit surprised with the development.
“But there are massive pitfalls associated with this too. All hell will break
loose if details of selection committee meetings are now made available to the
public. Who will want to speak his mind then? Every decision taken inside a
selection committee meeting will become a matter of national debate, leading to
tamasha on prime time television news,” said a senior BCCI member.

Recently, the national women’s team coach was sacked by the BCCI because he —
sources say — was asked to jot down details of team meetings and the cricketers
rejected the idea the moment it was proposed.

(Source:https://timesofindia.indiatimes.com/sports/cricket/news/cic-brings-bcci-under-right-to-information-act/articleshow/66036808.cms)

u Indian
students rushing abroad to study medicine, reveals RTI

There has been an increase in the number of
students willing to study medicine abroad, reveals the reply to an RTI query. The
RTI query was sent to the Medical Council of India (MCI) in October 2018 and
the reply reveals that the number of students who applied for the mandatory
eligibility certificate from MCI to study abroad almost doubled in 2017-18 as
compared to 2016-17.

As per RTI no. MCI- 201 (E-RTI)/ 2018-
Eligi./, the number of applications received was18,383 in 2017-18 as against
10,555 in 2016-17.

Dr. Sylvia Karpagam, a public health doctor
and researcher, said, “The mass migration of doctors has been happening for a
long time and it is not surprising. The entire medical education system, right
from the selection process, the fees and the curriculum are set up as a
commercialised structure, rather than a social commitment. The curriculum
doesn’t focus on the disease that is prevalent in the country. Medical students
are also trained in tertiary care rather than primary healthcare. They are
therefore ill-prepared to work in a primary care setting and definitely not in
a rural care setting.”

As per the information provided in the RTI
communication, MCI issued 8,737 eligibility certificates in 2016-2017 and
14,118 certificates in 2017-18. The eligibility certificates issued also
include pending from previous years, the RTI reply suggested.

Dr. Karpagam said that there is a need to
change the social structure of medical students who get admission to medical
colleges. Investments should be made into government medical colleges to focus
on training students on health issues concerning the country, with the
particular focus on social determinants of health.

The key reason for student migration is the
lack of medical seats in the country, said Mr Saju Bhaskar, president and
founder of an overseas MCI-recognised medical university, Texila American
University. “Information provided in the RTI speaks volumes on the shift in
medical education trends. There are a mere 60,000 medical seats being offered
by both government and private colleges for medical aspirants, who are in
millions.

Apart from this, higher awareness levels of
the overseas colleges, affordable fees compared to Indian private colleges,
curriculum aligned to international standards, better global growth
opportunities etc. are the other reasons why students prefer to study MBBS
abroad,” he said.

(Source:https://www.deccanchronicle.com/nation/current-affairs/201218/indian-students-rushing-abroad-to-study-medicine-reveals-rti.html)

PART D RTI ARTICLE

u India: Copyright and the Right To Information

Can a request for information under the
Right to Information Act, 2005 (“RTI Act”) be denied on grounds of
being the copyright of a third party? This was one of the questions that a two
Judge Bench of the Supreme Court of India recently dealt with. The case related
to the issue of disclosure under the RTI Act, where a person sought information
regarding the plans submitted to public authorities by a real estate developer.

BACKGROUND

The origins of the suit, Ferani Hotels
Pvt. Ltd. vs The State Information Commission, Greater Mumbai (Civil Appeal
Nos.9064-9065 of 2018, decision dated 27^th September, 2018, Supreme
Court of India), lie in a private commercial dispute between a real estate
developer, Ferani Hotels, and Mr Nusli Neville Wadia (see).

In brief, Mr Wadia administered certain
plots of land as the owner of that land, and granted Ferani Hotels the
authority to develop the land through a Power of Attorney. It came to pass that
Mr Wadia wanted information about the building plans. When the developer failed
to provide the information through other means, Mr Wadia applied to the Public
Information Officer (“PIO”), Municipal Corporation of Greater Mumbai,
for this information, which included certified copies of plans, layouts,
development plans (and amendments), submitted by Ferani Hotels, its divisions
or architect.

The request for this information was
declined on various grounds by the PIO, including that no public interest had
been demonstrated in seeking this information, and that it was the copyright of
Ferani Hotels. The latter ground was based on two arguments put forward by
Ferani Hotels: firstly, that the information-seeker was a business competitor
and the disclosure of the information would harm and injure its competitive
position, as well as its intellectual property rights; secondly, that all
rights in respect of the plans, designs, drawings, etc., including intellectual
property rights and in particular copyright, were reserved and vested
exclusively with the developer.

After winding its way through the corridors
of the information commission architecture set up under the RTI Act, the suit
found itself before the Supreme Court. The Court, in this order, dealt with
multiple questions relating to the RTI application, such as what constitutes
public interest, but this note is restricted to understanding the court’s views
on copyright and the RTI Act.

THE RTI ACT AND COPYRIGHT

It is useful to discuss some relevant
provisions of the law at this stage. The RTI Act was created in 2005 to
increase the accountability of government authorities towards the public by
facilitating greater and more effective access to information. Section 6(2) of
the RTI Act says that an applicant does not have to provide any reasons for
requesting the information. In other words, anyone can obtain the information
as long as it is part of the public record of a public authority. The Court
additionally observed that even private documents submitted to public
authorities may, under certain situations, form part of public record.

The right to information is subject to
certain restrictions contained in the law. For example, section 8(1)(d) allows
for information to be denied if it includes “commercial confidence, trade
secrets or intellectual property, the disclosure of which would harm the
competitive position of a third party, unless the competent authority is
satisfied that larger public interest warrants the disclosure of such
information”. Similarly, section 9 allows a competent authority to
“reject a request for information where such a request for providing access
would involve an infringement of copyright subsisting in a person other than
the State.”

In the present case, the information sought
for were, in fact, plans relating to the property in question. These plans are
ordinarily required to be submitted by any person proposing to construct on a
property, to the Commissioner of the Corporation. The general principle, which
the Court has reiterated in multiple pronouncements, is that the “fate of
[the] purchase of land development and investments is a matter of public knowledge
and debate.”

To highlight this principle, the Court made
reference to provisions of the Maharashtra Ownership Flats (Regulation of the
Promotion of Construction, Sale, Management and Transfer) Act, 1963, which
empower purchasers of flats (which are being built by a developer) to obtain
full information of the sanctioned plans. (This law, although relevant for this
case, has since been repealed by Real Estate (Regulation and Development) Act,
2016, which retains the same spirit of positive information disclosure). The
Court made two pertinent observations in this context: firstly, that this right
to obtain information about sanctioned building plans should not be restricted
to flat-buyers, but should also be available to persons who administer the land
as owner, and grant authority for its development. Secondly, the Court noted
that the disclosure of plans, which are already required to be in public domain
under law, cannot possibly be matters of commercial confidence or trade
secrets.

THE COURT’S CONLUSIONS

On the issue of intellectual property and copyright, the Court noted
that even though the preparation of the plan and its designs may give rise to
the copyright in favour of a particular person, the disclosure of that work
would not amount to an infringement. Towards this, it cited section 52(1)(f) of
the Copyright Act, 1957, which specifically provides that there would be no
such infringement if there is reproduction of any work in a certified copy made
or supplied in accordance with any law for the time being in force. This is
what was sought for in the present case.

The other relevant observation pertained to
the implications of the overriding effect clause contained in section 22 of the
RTI Act, which provides for an overriding effect with a notwithstanding clause
with regard to any inconsistency with any other Act. The Court clarified that
this would not imply that a disclosure permissible under the Copyright Act,
1957 is taken away under the provisions of the RTI Act, but rather, if a
disclosure is prescribed under any other Act, the provisions of the RTI Act
would have an overriding effect.

A LEGAL MISADVENTURE

While tackling this case, the Court also
made plain-spoken observations about the nature of the dispute, calling it
“a legal misadventure”, emerging “clearly [from] the private
dispute, rather than any objective consideration qua the issue of
disclosure of information”, and where “the issue in question was ….
really innocuous”. Costs of Rs 2.50 lakhs were imposed on the appellant,
Ferani Hotels, payable to the information-seeker, although the court also noted
that these were hardly the actual expenses!

Article by Sumathi Chandrashekaran

(Source:http://www.mondaq.com/india/x/759832/Trade+Secrets/Copyright+And+The+Right+To+Information )

RTI Clinic in January 2019: 2^nd,
3^rd Saturday, i.e. 12^th, 19^th and February 2^nd11.00 to 13.00 at BCAS premises

BCAJ Admin

RIGHT TO INFORMATION (r2i)

PART A DECISIONS OF SUPREME COURT

Non-governmental
organisations substantially financed by the appropriate government fall within
the ambit of ‘public authority’ under section 2(h) of the Right to Information
Act, 2005

A civil appeal was filed by D.A.V. College
Trust and Management Society and Ors. stating that it couldn’t be treated as a
public authority. A Division Bench comprising Justice Deepak Gupta and Justice
Aniruddha Bose heard the pleas filed by the appellant on 17^th
September, 2019.

In the Apex Court, Hon’ble Justice Deepak
Gupta, while providing a judgement on Civil Appeal No. 9828 of 2013 stated:

‘In our view, “substantial” means a large
portion. It does not necessarily have to mean a major portion or more than 50%.
No hard and fast rule can be laid down in this regard. Substantial financing
can be both direct and indirect. To give an example, if a land in a city is
given free of cost or on heavy discount to hospitals, educational institutions
or such other body, this in itself could also be substantial financing. The
very establishment of such an institution, if it is dependent on the largesse
of the State in getting the land at a cheap price, would mean that it is
substantially financed. Merely because financial contribution of the State
comes down during the actual funding, will not by itself mean that the indirect
finance given is not to be taken into consideration. The value of the land will
have to be evaluated not only on the date of allotment but even on the date
when the question arises as to whether the said body or NGO is substantially
financed.

Whether an NGO or body is substantially
financed by the government is a question of fact which has to be determined on
the facts of each case. There may be cases where the finance is more than 50%
but still may not be called substantially financed. Supposing a small NGO which
has a total capital of Rs. 10,000 gets a grant of Rs. 5,000 from the
Government; though this grant may be 50%, it cannot be termed to be substantial
contribution. On the other hand, if a body or an NGO gets hundreds of crores of
rupees as grant but that amount is less than 50%, the same can still be termed
to be substantially financed. Another aspect for determining substantial
finance is whether the body, authority or NGO can carry on its activities
effectively without getting finance from the Government. If its functioning is
dependent on the finances of the Government then there can be no manner of
doubt that it has to be termed as substantially financed. While interpreting
the provisions of the Act and while deciding what is substantial finance one
has to keep in mind the provisions of the Act. This Act was enacted with the
purpose of bringing transparency in public dealings and probity in public life.
If NGOs or other bodies get substantial finance from the Government, we find no
reason why any citizen cannot ask for information to find out whether his / her
money which has been given to an NGO or any other body is being used for the
requisite purpose or not.’

[Civil Appeal. No. 9828 of 2013, dated 17^th
September, 2019]

Chief Justice of India’s
office under RTI Act, but conditions apply

A Constitution Bench of the Supreme Court
comprising the Chief Justice of India (CJI) Ranjan Gogoi, Justices N.V. Ramana,
D.Y. Chandrachud, Deepak Gupta and Sanjiv Khanna on 13^th November,
2019 gave a judgement on
the applicability of the Right to Information (RTI) Act, 2005 to itself.

It has been hailed as a landmark judgement
by most people based on the understanding that it was only about accepting that
RTI applies to the office of the CJI. There were actually three petitions which
were decided. Subhash Chandra Agarwal had sought the information in 2007 and
2009.

Justice Chandrachud has acknowledged: ‘Failure
to bring about accountability reforms would erode trust in the courts’
impartiality, harming core judicial functions. Further, it also harms the
broader accountability function that the judiciary is entrusted with in
democratic systems including upholding citizens’ rights and sanctioning
representatives of other branches when they act in contravention of the law.
Transparency and the right to information are crucially linked to the rule of
law itself. There is a fallacy about the postulate that independence and
accountability are conflicting values.’

However, after accepting the right of citizens
to get information from the office of the CJI, the Court has ruled that the
exemption of section 8(1)(j) covers all personal information.

The Supreme Court said that confidentiality
and right to privacy have to be maintained and added that RTI can’t be used as
a tool of surveillance. It also said only names of judges recommended by the
Collegium can be disclosed, not the reasons.

The Bench, headed by the Chief Justice of
India, wrapped up the hearing saying nobody wants a ‘system of opaqueness’,
but the judiciary cannot be destroyed in the name of transparency. ‘Nobody
wants to remain in the state of darkness or keep anybody in the state of
darkness,’ it had said. ‘The question is drawing a line. In the name of
transparency, you can’t destroy the institution.’

[Civil
Appeal No.10044 of 2010 and Civil Appeal No. 2683 of 2010 dated 13^th
November, 2019]

PART B RTI ACT, 2005

Suo motu disclosures

Suo motu, meaning ‘on its own motion’, is a Latin word used mainly as
legalese.

The basic principle
of the RTI Act is the idea that the individual national is a sovereign in her
own particular right and is the proprietor of the government. The textbook
definition of democracy is exemplified by the expression ‘for the people, of
the people and by the people’. In reality, the information provided to the
public is power given in the hands of the citizens. The most important thing
that will be looked after by this is transparency, corruption and arbitrariness
in the governance within an institution.

Certain instructions
have been drawn up by the government to make sure that the public departments /
ministries make suo motu disclosure of information. These instructions
are based on the suggestions of the Task Force set up by the government for
strengthening compliance with provisions for suo motu disclosure u/s 4
of the RTI Act, 2005. The members of civil society, Central Government
Ministries / Departments and the State Governments are prominent members of
this force.

The guidelines have
been based on the following points:

(a) Suo motu
disclosure of more details u/s 4 – This includes detailed instructions on
proactive disclosure of information related to public / private partnerships,
transfer policy and transfer orders, procurement, RTI applications received and
their responses, CAG and PAC paras, citizens’ charter and discretionary and
non-discretionary grants;

(b) Instructions
for digital publication of active disclosure of details to ensure that the
government websites disclose details completely so as to be easily available to
the citizens without any discrepancies;

(c) Detailing of
few sub-clauses of section 4(1)(b) of the RTI Act regarding publishing of
information by the public authority: ‘the procedure followed in the
decision-making process’, ‘norms set by the public authority for the discharge
of its functions’, ‘the budget allocated to each of its agency’ and ‘details in
respect of information, available to or held by it, reduced in an electronic
form’.

The compliance
mechanism for suo motu disclosure under the RTI Act includes yearly
audit of proactive disclosures made by the Ministry / Department by a third
party, examination of such audit report and offering advice / recommendation by
the Central Information Commission and inclusion of compliance details in the
annual report of the Ministry / Department.

Section 4 of the
RTI Act lays down the information which should be disclosed by public
authorities on a suo motu or proactive basis. The main aim of suo
motu disclosure is to retract all the necessary details in public domain on
a proactive basis so that the functioning of the public authorities becomes
more transparent and the need of filing individual RTI applications goes down.

Since the
promulgation of the Act in 2005, large volumes of information relating to
functioning of the government is being put in the public domain. However, the
quality and quantity of proactive disclosures are not being raised to the
desired level. There have been complaints regarding the backlog of cases in the
commissions but it is rarely accepted that mere compliance by the authorities
by providing the necessary information as mandated by the Act would result in a
steep decrease in the number of appeals filed.

It has been
observed that information seekers face problems in making use of the Act and
the officers of the public authorities face problems in implementing its
provisions. Keeping this in mind, Rajasthan has launched the Jan Soochna
portal which will display all information that ought to be voluntarily
disclosed by public authorities under the RTI Act.

The information
will be open to public scrutiny at the click of a mouse and without having to
file an RTI application. It will display issues related to 13 departments
covering around 30 government schemes. These include public distribution and
ration; farm loans; pensions; beneficiaries of Mahatma Gandhi National Rural
Employment Guarantee Act (MNREGA); food grain distribution; government-run
medical and health insurance schemes; and land extracts.

The home page of
the portal http://jansoochna.rajasthan.gov.in/ states: ‘The Government
of Rajasthan is proud to launch the Jan Soochna portal, conceptualised
in collaboration with peoples’ campaigns of Rajasthan’. This is the first
public portal of its kind in the country aimed at disclosing information on a suo
motu basis as required u/s 4(2) of the RTI Act.

The
day every state government follows Rajasthan’s example, the antagonistic
effects of the RTI Amendments, 2019 would be nullified. We appreciate and
congratulate the Rajasthan Government for this citizen-friendly venture, where
governance becomes pro-active and transparent.

PART C INFORMATION ON AND AROUND

RTI reveals Kolhapur floods
caused by tampering with technically established flood-lines to please builders

The flood havoc in
Kolhapur and Sangli districts resulted in the deaths of 54 people and of
thousands of heads of cattle, apart from causing colossal loss to property,
farmlands and standing crops.

Was it the ferocity of nature that caused such a great calamity, or did
human interference aggravate the situation? Right to Information (RTI)
documents reveal that tampering with the red and blue line demarcation of the
Panchganga river in the Kolhapur Development Plan, due to the pressure of the
builder lobby through the Confederation of Real Estate Developers’ Associations
of India (CREDAI), to which the Chief Minister’s Office responded
affirmatively, resulted in turning 1,250 acres of flood-line area, prohibited
for any construction, into a concrete maze.

As per the RTI
documents procured from the Kolhapur Municipal Corporation, the CREDAI,
Kolhapur wrote a letter to Chief Minister Devendra Fadnavis on 9^th
October, 2018 casting doubts about the Water Conservation Department’s red
flood-line report of the Panchganga, whetted by IIT, Mumbai, on new
flood-lines.

The letter claimed
that the new flood-lines may cause confusion and fear-mongering as most of the
areas under the new flood-lines fall under the residential zone and a large
number of structures have been constructed on it. They also claimed that there
is public unrest over drawing the new flood-lines. Hence, the letter urged that
the old flood-lines which were existing (which had no scientific base and were
marked haphazardly) in the Development Plan be maintained.

Further, the Water
Resources Department submitted a technical note on 5^th March, 2019
to the Kolhapur Municipal Corporation. It stated that the flood level has risen
above the present blue line (shown in the Kolhapur Development Plan, which the
builders want to maintain) on ten occasions and above the present red line on
six occasions over the past 30 years. It warned that the Kolhapur Municipal
Corporation and the local administration would have to be on alert during the monsoons
if the old flood-lines are retained.

(Source:https://www.moneylife.in/article/rti-reveals-kolhapur-floods-caused-by-tampering-with-technically-established-flood-lines-to-please-builders/57983.html)

Mumbai police hits record
high in traffic penalties, reveals RTI

The Mumbai Traffic
Police collected record fines totalling nearly Rs. 139 crores in 2018 for
violations of traffic rules, according to an RTI filing. This figure is much
higher compared to the Rs. 8.6 crores collected in 2017, said RTI activist
Jeetendra Ghadge, and the credit for this goes to the ‘e-challan’ system
implemented by the Mumbai Traffic Police in a big way.

‘This technology –
whereby an officer can simply issue an e-challan from his mobile phone – has
not only reduced corruption on the roads, but resulted in a massive collection
of fines for the government coffers,’ Ghadge told IANS.

Interestingly, the
RTI filing also revealed that the number of drunk-driving cases has
considerably decreased over the last three years. While there were 20,768 such
cases in 2016, they came down to 18,056 in 2017 and 11,711
in 2018.

Shockingly, in the
same period, the number of teenagers caught in drunk-driving cases was 1,854;
and 367 women were among those nabbed for drunk driving.

‘The figures
clearly reveal that Mumbaikars are quite an indisciplined lot while driving on
roads and even hefty fines / penalties don’t act as a deterrent. Since time is
more valuable than money for Mumbaikars, brief periods of detention (jail) or
community service, as prevalent in some advanced countries, could teach them a
lesson,’ Ghadge said.

(Source:https://www.moneylife.in/article/mumbai-police-hits-record-high-in-traffic-penalties-reveals-rti/58026.html)

Bharat Electronics
demands fee for information on EVMs under RTI; later says it has no information

Bharat Electronics Ltd. (BEL) and Electronics Corporation of India Ltd.
(ECIL) are manufacturers of electronic voting machines (EVMs), voter-verified
paper trail (VVPAT) units and symbol loading units (SLUs) which have been under
the watchful eye of RTI activists against the backdrop of alleged tampering of
EVMs in the 2019 Lok Sabha elections.

Venkatesh Nayak,
research scholar and programme co-ordinator of the Commonwealth Human Rights
Initiative (CHRI), filed RTI applications to both the organisations, seeking
identical information.

The Central Public
Information Officer (CPIO) of BEL promptly replied in June, 2019 that
information could be supplied at a cost of Rs. 1,434 for the photocopying of
pages. However, a month later, BEL did a complete somersault stating that it
did not hold most of the information and also rejected one of the queries
(pertaining to names of engineers) stating that disclosure would endanger the
life of its engineers and even returned the bank draft that Mr. Nayak had sent
as the fee.

(Source:https://www.moneylife.in/article/bharat-electronics-demands-fee-for-info-on-evms-under-rti-later-says-it-has-no-info/58150.html)

Frauds worth Rs. 32,000
crores rattle 18 public sector banks within three months, reveals RTI

A total of 2,480
cases of fraud involving a huge sum of Rs. 31,898.63 crores rattled 18 public
sector banks between April and June this year, an RTI query has revealed.

The country’s
largest lender, State Bank of India (SBI), remained the biggest prey to frauds
with a 38% share, Neemuch-based activist Chandrashekhar Gaur told PTI, quoting
an official of the RBI who furnished replies to his RTI application. As many as
1,197 cases of cheating involving Rs 12,012.77 crores were detected in SBI in
the first quarter.

After SBI,
Allahabad Bank faced the heat with 381 cheating cases involving Rs. 2,855.46
crores. Punjab National Bank stood third in the list with 99 fraud cases worth
Rs. 2,526.55 crores.

However, the
information provided by the RBI does not give specific details of the nature of
banking frauds and the losses suffered by banks or their customers.

(Source:https://www.indiatoday.in/business/story/frauds-worth-rs-32-000-crore-rattle-18-public-banks-within-three-months-reveals-rti-1596960-2019-09-08)

Government spending more
on ads in Hindi newspapers: RTI

In a clear hint of
its plan to make deeper inroads into the Hindi heartland, the Narendra Modi
government has spent over Rs. 890 crores on advertising in Hindi newspapers
compared to over Rs. 719 crores in English newspapers in the last five years,
an RTI inquiry revealed.

At a time when
print media overall is facing rough weather owing to stiff competition from
digital platforms – chiefly Facebook and Google which together share 68% of
digital ads globally – Hindi and regional newspapers across the spectrum
(large, medium and small) are defying the trend and flourishing.

Leading the pack in
the period between 2014-15 and 2018-19 was Dainik Jagran which received
government advertisements worth over Rs. 100 crores in the given time-frame. Dainik
Bhaskar received advertisements worth Rs. 56.62 crores, while Hindustan garnered
advertisements worth Rs. 50.66 crores in the reported period.

Punjab Kesari was able to obtain government advertisements worth Rs. 50.66 crores
and Amar Ujala Rs. 47.4 crores.

(Source:https://www.indiatoday.in/india/story/government-spending-more-ads-hindi-newspapers-rti-1596821-2019-09-08)

BCAJ Admin

RIGHT TO INFORMATION (r2i)

PART A DECISIONS OF HIGH COURTS

Can a Government Order issued by the
State exist over the provisions of the RTI Act?

A writ petition
was filed by Advocate D.B. Binu, who is an RTI activist and president of a federation
of such activists, impugning an order issued by the Government of Kerala which
ostensibly says that certain types of information cannot be made available to
the public even under the RTI Act.

In the High
Court of Kerala at Ernakulam, Mr. Justice Devan Ramachandran while delivering a
judgement on WP(C) No. 11202 of 2019 on 25^th June, 2019
stated:

‘From this
limited perspective, I must say that I fail to understand how the Government of
Kerala could order that “all documents / information related to Inter-State
matters and documents / information which Government feels privy to and the
disclosure of the same may hamper the interest of the State, shall be exempted
from revealing to the public even on request under RTI Act”, particularly when,
under the Right to Information Act is a well-defined hierarchy of officers,
with the State Information Commission at its head, which is expected to be
autonomous and resistant to any pressure from the Executive. It is disquieting
that the order appears to be an attempt to influence the various Information
Officers and Appellate Authorities under the RTI Act by dictating that they
shall not make available certain types of information, no matter what the
mandate of the RTI Act. This certainly is a very dangerous proposition and it
is incomprehensible how the Government could arrogate to itself the power to
issue such an order, knowing full well that this is gross affront to the
provisions of law, because it must certainly be aware that information sought
for by an applicant under the RTI Act can only be denied under the specific
instances enumerated in sections 8 and 9 of the said Act and in no other.
Whatever be the reason behind issuance of this order and however justified the reason stated therein may be, the incontrovertible
fact is that the Government could not have issued this order to pre-empt grant
of any information, whatever be its nature, since it is up to the individual
Information Officers, Appellate Authorities and the Information Commission to
grant or deny such information, guided by the imperatives of the Act; and the
apparent attempt of the Government to dictate to them, through the impugned
order, can never obtain support
in law.’

Further, the
judgement states, ‘I cannot let the order influence or trample the officials
under the RTI Act, while acting under its mandate; and I, consequently, clarify
unequivocally that, notwithstanding the contents of the said order, which I
cannot find to be worthy of favour from this Court, the various Public Information
Officers, Appellate Authorities and the State Information Commission shall only
act implicitly in terms of the RTI Act, de hors this order, adverting to
the exceptions statutorily provided and nothing more, nothing less.’

[WP(C). No.
11202 of 2019, dated 25^th June, 2019]

PART B RTI ACT, 2005

RTI amendment Bill

The existing law
says that the public authorities are required to make disclosures on:

(i) their
organisation, functions and structure,

(ii) powers and
duties of its officers and employees,

(iii) financial
information

If such information
is not provided by the public authorities on their own, the citizens have the
right to demand the same from them under the RTI Act. ‘Public authorities’
refers to Ministers and government servants, among others.

The Central
Information Commission is headed by a Chief Information Commissioner and ten
Information Commissioners. They are appointed by the President (read Central
Government) who appoints them for a fixed tenure of five years and a salary of the rank of the Chief Election
Commissioner and Election Commissioners, respectively. This was done to give
the Central Information Commission autonomy and protection from government
interference.

The gist of the proposed amendment to the RTI is as follows:

(a) The clause
‘five-year fixed term, or up to the age of 65 years, whichever is earlier’ is
removed;

(b) The status, terms and salary of the CIC, which is now equal to that
of Chief Election Commissioner, will be reduced;

(c) It is
contemplated to give powers to the political executive, i.e., to the Central
Government to prescribe the term, salary and status of the commissioners both
at the Centre and in the states;

(d) The Centre will
get power to prescribe the term, status and salary from time to time.

At first glance,
the amendments appear benign. They deal with matters pertaining to tenure,
allowances and the terms of service of Information Commissioners. These were
articulated in the Act, which mandates fixed five-year terms and accords
appropriate status to the Commissioners by equating their salaries with those
of the Election Commissioners at the state and Central level. The amendment
removes these provisions and empowers the Centre to take these decisions.

Two consequences
follow from this. First, it undermines the status of the Commissioners which,
in the hierarchy of the state, is a necessary condition for staying
independent, issuing orders and, more importantly, monitoring implementation.
This was the logic behind conferring Information Commissioner’s status and
salary equivalent to Election Commissioners (and the Chief Secretary in the
case of states). Importantly, this is a principle routinely adopted for
statutory oversight bodies.

Second, it allows
the Centre to meddle with the everyday functioning of the Commission. The
Centre has now appropriated powers to notify the term of office. In other
words, it can get rid of uncomfortable Commissioners with relative ease, thus
making the Information Commissions subservient to it. In undermining their
independence, the amendments threaten the spirit and intent of the RTI Act,
which is to establish norms of transparency and accountability in governance.

‘Information is
the currency that every citizen requires to participate in the life and
governance of society’: Justice A.P. Shah, former
Chief Justice, Delhi and Madras High Courts (2010).

The government must
keep in mind that the RTI Act is regarded as one of the most successful laws of
independent India. It has proved to be the strongest and most effective tool
that ordinary citizens possess to hold accountable the powers that be.

The RTI Act has
been used time and again to ask a million questions across the spectrum – the
Reserve Bank of India, the Finance Ministry, demonetisation, non-performing
assets, the Rafael fighter aircraft deal, electoral bonds, unemployment
figures, the appointment of the Central Vigilance Commissioner, Election
Commissioners and the (non)-appointment of the Information Commissioners
themselves.

It is, therefore, imperative that the government, which runs the world’s
largest democracy, remains sensitive about public sentiment and should do
nothing that can be construed as a move to trample the rights and freedom of
its people.

(This
piece has drawn from inputs of various RTI activists and articles of various
experts on the topic)

PART C INFORMATION ON & AROUND

SFIO in HC against
CIC order to disclose details of criminal cases against Daewoo Motors

The Delhi High Court has sought response of
the now-defunct Daewoo Motors’ former auditor on a plea by the Serious Fraud
Investigation Office SFIO to set aside a Central Information Commission (CIC)
order directing it to make public details of criminal proceedings against the
company which is facing trial in several cases. Mr. Justice V.K. Rao has issued
notice to the auditor, Vipin Malik, and sought his response on the petition by
the SFIO, which functions under the Ministry of Corporate Affairs (MCA). The
Court listed the matter for further hearing on December 3.

(Source:https://economictimes.indiatimes.com/news/politics-and-nation/sfio-in-hc-against-cic-order-to-disclose-details-of-criminal-cases-against-daewoo-motors/articleshow/70721529.cms)

Respond to
RTI query seeking to know illegal Bangladeshis in India: CIC to MHA

The CIC has directed the Home Ministry to
respond to a three-year-old RTI application seeking to know the number of
illegal Bangladeshi nationals in India and action taken against agencies which
failed to send them back.

An RTI applicant had approached the Home
Ministry asking for information on three points – the number of illegal
Bangladeshis in India, the authority responsible for sending them back and
action taken against the authority for failing in its duty.

The matter was referred to the Intelligence
Bureau (IB), which denied the information citing its exemption from the RTI Act
being a national security and intelligence agency.

During the hearing at the Commission, the
highest adjudicating body in RTI matters, the Bureau of Immigration, which
works under the IB, said it only monitors and collects statistics pertaining to
those immigrants who overstay.

Seeking an unconditional apology, the Bureau
said the matter does not pertain to it and should have been returned to the
Ministry.

In view of this, the Commission directed the
respondent to transfer the appellant’s RTI application u/s 6(3) of the RTI Act
to the Central Public Information Officer (CPIO), MHA within a period of two
weeks from the date of receipt of a copy of the order under intimation to the
appellant, Chief Information Commissioner Sudhir Bhargava said.

(Source:https://www.business-standard.com/article/pti-stories/respond-to-rti-query-seeking-to-know-illegal-bangladeshis-in-india-cic-to-mha-119070100657_1.html)

CIC tells RBI to
give defaulters’ names to RTI applicant

The CIC has directed the RBI to disclose the
list of big loan defaulters it had sent to various banks for resolution.

The CIC’s directive came while deciding on a
plea by an RTI activist, who had based the application on media reports that
RBI Deputy Governor Viral Acharya in a lecture in 2017, had said that the
accounts of some loan defaulters had been sent to banks for resolution.

(Source:https://www.deccanchronicle.com/business/economy/280519/cic-tells-rbi-to-give-defaulters-names-to-rti-applicant.html)

CIC slams
DoPT for discrediting itself as RTI implementing agency

Despite the
Supreme Court having ordered transparency in the appointments of Information
Commissioners, the Department of Personnel and Training (DoPT), which is also
the implementer of the RTI Act, stonewalled information on this issue, only to
be admonished by the CIC, which has ordered it to provide the details sought
under RTI.

CIC Divya Prakash, in his order, observed
that ‘this kind of conduct amounts to stonewalling RTI applications and
stifling the very letter and spirit of the RTI Act. By resorting to such
unwarranted opacity, DoPT is setting a bad example for other public authorities
and at the same time discrediting its own footing as the nodal agency for the
implementation of the RTI Act.’

While warning
the DoPT CPIO not to take RTI
applications so casually, he also observed in his order, ‘It is ironic that the
information that has been denied in the instant case pertained to the
appointment of Information Commissioners under the RTI Act, who are ordained
with the statutory authority of securing the regime of transparency.’

(Source:https://www.moneylife.in/article/cic-slams-dopt-for-discrediting-itself-as-rti implementing-agency/57659.html)

BCAJ Admin

RIGHT TO INFORMATION (r2i)

SC notice to RBI on pleas seeking
contempt proceedings for violating RTI

The Supreme Court (SC)
sought RBI’s response on two pleas seeking contempt proceedings against the
central bank and its former Governor Urjit Patel for non-disclosure of
information under RTI about some banks.

A bench headed by Justice L
N Rao issued the notice to the Reserve Bank of India (RBI) for not disclosing
information about the list of banks on whom certain fines were imposed for
violating some banking rules.

The court has asked RBI to
file a reply within four weeks and listed the matter for hearing in March.

The pleas, filed by Girish
Mittal and Subhash Chandra Agrawal, claimed that RBI and Patel had
“willfully and deliberately” disobeyed the top court’s judgement
asking the central bank to disclose information under the Right to Information
(RTI) Act.

Agrawal had sought complete
information including related documents from RBI on the imposition of fines on
some banks for violating rules.

He had also sought the list
of banks and the default for which show cause notices were issued to them
before the fine was imposed.

Despite the apex court’s
judgement for disclosure of such information, RBI had issued a “Disclosure
Policy” under which it has listed certain information as being exempted
from being disclosed of the RTI Act.

“It is to be noted
that this specific information is similar to what were held not to be exempted
by the Supreme Court,” claimed the plea, filed through lawyer Prashant
Bhushan.

RBI had refused to disclose
such information on the grounds of economic interest and holding such
information in fiduciary relationship with these individual banks.

Such reason is in direct
contempt with this court’s judgment. The information titles which are in
contempt belong to Department of Banking Regulation, Banking Supervision,
Cooperative Banking Regulation/Department of Cooperative Banking Supervision
and Consumer Education and Protection Department.

“This exempted
information under the policy were held to be not exempted by the Supreme Court.
Thus, this exemption leads to contempt of this court’s order,” the plea
said.

The Supreme Court had in
2015 held that RBI should take rigid action against those banks and financial
institutions which have been indulging in “disreputable business
practices” and said it cannot withhold information on defaulters and other
issues covered under the RTI Act.

It had further clarified
that RBI cannot withhold information under the “guise” of confidence
or trust with financial institutions and is accountable to provide information
sought by the general public.

The pleas claimed that the
disclosure policy framed by the RBI headquarters is like an instruction to its
Public Information Officers (PIOs) not to furnish virtually all kinds of
information.

“Under the RTI Act,
2005, it is the PIOs who have been cast with the statutory duty to comply with
the provisions of the RTI Act (as interpreted by the Courts) and it is the PIOs
who face a penalty for non-compliance.

“The policy provides
with different titles of information divided department wise that are not to be
disclosed under the RTI Act, 2005. The reason for non-disclosure of information
by RBI under its Disclosure Policy has been based on economic interest and
fiduciary relation with the individual banks,” the pleas said.

(Source:https://www.business-standard.com/article/pti-stories/sc-issues-notice-to-rbi-on-pleas-alleging-violation-of-right-to-information-law-119012501365_1.html
)

Part B
IRTI ACT, 2005

Step
by step guide to file an RTI application

Right to Information Act 2005 mandates timely response to citizen requests
for government information.

It is an initiative taken by Department of Personnel and Training,
Ministry of Personnel, Public Grievances and Pensions to provide an RTI Portal
Gateway to the citizens for quick search of information on the details of first
Appellate Authorities,PIOs etc. The url of the RTI software is :
https://rtionline.gov.in

Steps to file an RTI

1. For submitting RTI application click on submit
request option.

2. On clicking on submit request option
‘Guideliens for use of RTI ONLINE PORTAL’ screen will be displayed.This screen
contains various guidelines for using RTI online portal. Citizen has to click
on the checkbox ‘I have read and understood the above guidelines’ and then
click on submit button.

3. Then Online
RTI Request Form screen will be displayed. Ministry or Department for which the
applicant wants to file an RTI can be selected from Select
Ministry/Department/Apex body dropdown.

4. Applicant will receive sms alerts in case
he/she provides mobile number. The fields marked * are mandatory while the
others are optional.

5. If a citizen belongs to BPL category, he has to
select the option ‘Yes’ in ‘Is the applicant below poverty line?’ field and has
to upload a BPL card certificate in supporting document field. (No RTI fee is
required to be paid by any citizen who is below poverty line as per RTI Rules,
2012)

6. On submission
of the application, a unique registration number would be issued, which may be
referred by the applicant for any references in future.

7. If a citizen
belongs to Non BPL category, he has to select the option ‘No’ in ‘Is the
applicant below poverty line?’ field and has to make a payment of Rs 10 as
prescribed in the RTI Rules, 2012.

8. ‘Text for RTI
request application’ should be upto 3000 characters. If the text is more than
3000 characters, then the application can be uploaded in supporting document
field.

9. After filling all the details in the form, click on
the ‘make payment’ option.

10. On clicking
the option, Online Request Payment form will be displayed. The payment mode can
be selected in this form, which can be; internet banking, ATM-cum-debit card or
credit card.

11. After clicking
on the ‘Pay’ button, applicant will be directed to SBI payment gateway for
payment. After completing the payment process, applicant will be redirected
back to RTI Online Portal.

12. The applicant
will get an email and sms alert on submission of application.

Note: Only alphabets A-Z a-z
number 0-9 and special characters , . – _ ( ) / @ : & % are allowed in
text for RTI request application.

The application filed through this web portal would reach electronically
to the nodal officer of concerned Ministry/Department, who would transmit the
RTI application electronically to the concerned CPIO.

What to do if your RTI
request is rejected?

There is fundamental difference between RTI Request and RTI Appeal.

RTI Request is filing
application for the first time. Request is made by the citizen to one person
(i.e. PIO) to provide information. This means that it involves only the citizen
and PIO.

RTI Appeal is appeal
before senior officer against decision of PIO. This means that here, a third
person (i.e. Appellate Authority) comes between the citizen and the PIO.

Appeal is only filed when the citizen is not
satisfied with the reply of PIO or PIO rejects citizen’s request for
information.

This means RTI request is application process while RTI appeal is
appellate procedure against decision on RTI application.

Steps for filing RTI First
Appeal

1. For submitting First appeal application, click on
‘submit first appeal’ option. Upon clicking, ‘guidelines for use of RTI online
portal’ screen will be displayed. This screen contains various guidelines for
using RTI online portal.

2. Citizen has to click on the checkbox ‘I have read
and understood the above guidelines’ and then click on submit button.

3. Online RTI first appeal form screen will be
displayed. Applicant has to enter registration number, email ID and security
code in the form.

4. Upon clicking the submit button, online RTI first
appeal form will be displayed. The applicant can then select reason for filing
appeal application from ‘ground for appeal’ dropdown field.

5. Text for RTI first appeal application should be
upto 3000 characters. If the text is more than 3000 characters, then the
application can be uploaded in supporting document field. (As per RTI Act, no
fee has to be paid for first appeal).

6. On submission of the application, a unique
registration number would be issued, which may be referred by the applicant for
any references in future.

(Source:
https://www.indiatoday.in/information/story/rti-application-online-filing-steps-1440321-2019-01-27
)

Part C IINFORMATION ON
& AROUND

Govt breached rules in filling RTI commission, Supreme Court told

The Supreme Court heard that the Centre had violated provisions of the
Right to Information Act by appointing commissioners who had not even applied
for the posts.

A bench headed by Justice A.K. Sikri took on record the affidavit filed
by RTI activist Anjali Bharadwaj and adjourned the matter by a week to enable
the Centre and the states to submit comprehensive status reports on the filling
of vacant posts.

In December the top court had directed the Centre and the states of
Bengal, Andhra Pradesh, Odisha, Telangana, Maharashtra, Gujarat, Kerala and
Karnataka to file status reports mentioning the steps taken to fill up the
vacant posts of information commissioners and also the manner in which the
governments planned to hire.

The court had passed the directions on a PIL jointly filed by Bharadwaj,
Lokesh Batra and others alleging that a large number of vacancies in the
Central Information Commission (CIC) and the state information commissions
showed that the governments wanted to throttle the functioning of the RTI Act,
which was not good for democracy as the main purpose behind the legislation was
to ensure transparency. The petitioners complained that the Centre had issued a
notification dated 4^th January, 2019, on the website of the
department of personnel and training and in some newspapers inviting
applications for four vacant posts in the CIC.

They alleged that the advertisements were not in keeping with the
provisions of the RTI Act, 2005, as they stated that “the salary, allowances
and other terms and conditions of service of the Information Commissioners
shall be as may be specified at the time of appointment of the selected
candidate”.

According to the petitioners this is at variance with the provisions of
the RTI Act that specifies the terms and conditions of service of information
commissioners of the CIC. Sub-sections 2 and 5 of section 13 of the RTI Act
define the tenure and salaries and allowances payable to the chief information
commissioner and the information commissioners at the CIC.

“As per the said section, ‘every Information Commissioner shall hold
office for a term of five years from the date on which he enters upon his
office or till he attains the age of sixty-five years, whichever is earlier,
and shall not be eligible for reappointment as such Information Commissioner’,”
the PIL said.

“13(5) says ‘the salaries and allowances payable to and other terms and
conditions of service of — (a) the Chief Information Commissioner shall be the
same as that of the Chief Election Commissioner; (b) an Information
Commissioner shall be the same as that of an Election Commissioner’,” the
petition added.

According to the petitioners the Centre had deliberately worded the
advertisements vaguely by not specifying the tenure and salaries to undermine
the selection process.

“It would be unreasonable to expect people of eminence to apply for a
post without knowing the terms and conditions of service,” the petitioners
contended.

The petitioners also alleged that some of the four commissioners
appointed by the Centre had not applied for the post.

The petition said the Centre did not upload the list of shortlisted
candidates during the process of appointment.

“…The search committee acted arbitrarily and beyond the mandate to
selectively shortlist individuals who had not even applied… Therefore, the
shortlisting of persons who had not applied is illegal. In the case of the
Chief Information Commissioner, 5 people were shortlisted, 4 of whom had not
even applied. While for information commissioners, 14 persons were shortlisted
of which 2 had not even applied for the post…. One such individual has been
appointed as an information commissioner… Further, minutes of meetings do not
record the rational criteria on the basis of which names were shortlisted,” the
petitioners stated.

The petitioners alleged that Bengal had failed to inform the Supreme
Court about the number of vacancies at the state information commission.

Quoting statistics available on the website of the Bengal information
commission, the petition said several matters filed more than 10 years ago were
heard in 2018. The petition alleged that it would take two years to clear the
backlog and also the matters filed in the intervening period if the commission
continued to dispose of cases at the current rate — 4,500 a year.

Such long waiting periods defeat the purpose of the RTI Act, which is to
ensure information disclosure in a time-bound manner, the petitioners said.

The Andhra Pradesh commission website shows that the panel has been
defunct since May 2017, the petitioners said. No appeals or complaints had been
heard since then. On the web portal of the Andhra government details such as
the names of search committee members and shortlisted candidates and the selection
criteria could not be located, the petitioners said.

Information submitted by the Telangana
commission on affidavit shows that on average it disposes of about 2,000
matters annually, the petitioners said. If the commission functions at the same
rate, it will take six years to just dispose of the 11,762 cases that are
pending as on December 2018. Nine posts of information commissioners are
vacant.

The petitioners said that on the website of the Maharashtra general
administration department no details regarding names of search committee
members and shortlisted candidates and the selection criteria could be located.
Two posts of information commissioners are vacant and 42,000 cases pending.

In Gujarat nine posts of information commissioners are vacant. The
commission was functioning with one chief and one commissioner as of 21^st
January, 2019. Nearly 5,200 cases are pending. Although advertisements for
appointments were issued nearly two years ago, no appointments had been made.

In Kerala five posts of state information commissioners are lying vacant
because of the pendency of some writ petitions in the high court.

In the affidavit filed on behalf of the Karnataka government it is
mentioned that one post of state information commissioner is vacant and that an
advertisement had been put out seeking applicants. However, Karnataka High
Court has stayed the appointment process now.

(Source:https://www.telegraphindia.com/india/govt-breached-rules-in-filling-rti-commission-supreme-court-told/cid/1682549)

Service book is personal and does not fall under RTI: SIC

In a landmark order, State Information Commission said the Service Book
of an employee is “personal” and
cannot be provided to third party under the Right to Information Act.

Hearing the appeal from Excise inspector Amit Morajkar, SIC Juino
D’Souza expresses serious concern the First Appellate Authority has passed an
Order directing the PIO to provide certified copies of the Service Book of the
third party without even hearing and considering the objections of the ‘Third
Party’.

Also, it is seen that the procedure under section 11 has not been
followed and which includes giving notice to the concerned officer, he said.

The Commission further observed that the FAA in the present case is a
senior IAS officer, holding the post as ‘Commissioner of Excise’ and being a
quasi-judicial authority should have applied his mind and decided the First
Appeal as per 19(1) purely on merits as per the RTI act 2005. The FAA is duty
bound to see that the justice is done.

“The Service Book of an employee is essentially a matter between the
employer and employee more so as it contains important records such as annual
confidential report, family nomination, health status, disciplinary proceedings
taken against the employee and other such information that is Personal in
nature and every Government servant has a right to guard the same,” he
observed.

Further, the order stated, unless larger public interest is shown, the
furnishing of such records can cause prejudice and unwarranted invasion of
privacy to the concerned government servant, besides the information can also
be misused against the employee by unscrupulous elements using RTI as a
cover.

The SIC cautioned the FAA is accordingly instructed to be more cautious
in future while dealing with information that is ‘Personal’ in nature and which
may cause invasion of privacy and also information falls under the ambit of
exemptions under section 8 of the RTI act 2005, specially the exemption under
section 8(1)(j) of the RTI act 2005.

“With these observations all proceedings in Appeal case stand closed,”
the order states.

(Source:https://www.heraldgoa.in/Goa/Service-book-is-personal-and-does-not-fall under-RTI-SIC/141726.html
)

Highest RTI applications filed 2017-18, lowest rejected since 2005:
Central Information Commission data

A record 12.3 lakh RTI applications were filed in 2017-18 with 96 per
cent of them being responded to by government offices, making it the best
performing year since the law was enacted in 2005, the Central Information
Commission data shows.The data from the latest CIC annual report, shared by the
Ministry of Personnel, Public Grievances and Pensions shows that during
2017-18, 12.33 lakh RTI applications were received by the registered Central
Public Authorities (PAs).

“This is higher by 3,17,458 or 26 per cent than what was reported
during 2016-17. The Central PAs rejected 4 per cent (63,206) of the RTI
applications processed during 2017-18 showing a downward trend in rejections
which have come down by 2.59 per cent from the 6.59 per cent reported in
2016-17,” it said.The four per cent rejection rate is the lowest since
2005 when the RTI Act was enacted by Parliament giving people the right to get
information from government offices on a payment of INR 10. The public authorities used
exemptions provided under section 8, section 9, section 11 and section 24 of
the RTI Act to reject plea for information.

Thirty-two per cent of applications were rejected citing other reasons.
Section 8 lists nine subsections covering issues such as national security,
commercial confidence, parliamentary privilege, cabinet papers, personal
information among others under which information can be denied to a person.

Section 9 pertains to information related to infringement of copyright,
section 11 deals with third party information and section 24 is related to security
and intelligence organisations exempted from the RTI Act. The year proved
successful to the efforts of the Central Information Commission that all public
authorities file their annual returns with it which is mandatory under the RTI
Act. On this front, 100 per cent compliance was witnessed during 2017-18 which
is a first since enactment of the transparency law, the data showed.

(Source:https://economictimes.indiatimes.com/news/politics-and-nation/highest-rti-applications-filed-2017-18-lowest-rejected-since-2005-central-information-commission-data/articleshow/67369101.cms
)

Part D IRTI ARTICLE

SC Seeks Explanation for Arbitrary Appointment of Information
Commissioners

The Supreme Court took note of the arbitrary
and haphazard manner in which the information commissioners in the Central
Information Commission were selected recently and directed the Department of
Personnel & Training (DoPT) to reply by 29^th January, at the
next hearing.

This is a sequel to Supreme Court’s directive to DoPT to upload on its
website details of the process of information commissioner appointments by the
selection and search committee. Thanks to legal intervention by three right to
information (RTI) activists, Anjali Bharadwaj, Amrita Johri and Commodore
Lokesh Batra (retd), these documents, in the public domain now, reveal how the
selection committee violated several norms to appoint the Chief Information
Commissioner and four information commissioners of “their choice.”

Now, it is clear that the appointment of Sudhir Bhargava, an information
commissioner until now in the CIC and four information commissioners—Vanaja N
Sarna (the only lady), formerly, chief of the Central Board of Excise and
Customs (CBEC); Yashwardhan Kumar Sinha, former High Commissioner of India to
the UK; Suresh Chandra, former Union law secretary and Neeraj Kumar Gupta,
secretary in the department of investment and public asset management are not
as per the norms laid out for these
committees as per the RTI Act.

One of the petitioners, Anjali Bharadwaj, pointed out in the Supreme
Court, “the search committee had, in violation of its mandate, short-listed
persons who had not even applied for the post in response to advertisements.
Further, the minutes of the search committee meeting revealed that no rational
criteria were adopted on the basis of which the short-listing was done. Also,
the minutes showed the completely ad-hoc manner of functioning of the search
committee, wherein people who were appointed members of the committee, also
applied for the post and had to be subsequently replaced and were finally even
short-listed. One of the person who has been appointed- Shri Suresh Chandra,
had not even applied for the post.”

The Supreme Court took serious note of all the issues and directed that
the government should file a report on all the issues highlighted by the
petitioners and listed the matter. All the states were also directed to file
their reports before the hearing.

Research scholar and RTI activist, Venkatesh Nayak has closely studied
the documents put up by the DoPT regarding the selection committee’s glaring
bias of appointing present and former government servants as information
commissioners, by throwing to the winds rules under section 12 (5) and 15(5) of
the RTI Act as well as the Supreme Court ruling in the matter of Union of India
vs. Namit Sharma [ AIR 2014 SC 122], which clearly state that eminent persons
from various fields should also be chosen for the posts.

The following is Venkatesh Nayak’s observations
and analysis, along with those of Commodore Batra:

The file notings show that 64 applications were received within the
stipulated deadline, from across the country against the vacancy advertised in
two English language and two Hindi language newspapers. Four applications were
received after the lapse of the deadline. The DoPT has only disclosed the names
of these applicants and withheld their applications and bio data by invoking
Section 8(1)(j) of the RTI Act which seeks to exempt personal information of an
individual from disclosure. About 20 pages of documents contained in the files
have been withheld from disclosure in this manner.

Who were the search committee members?

The six-member search committee headed by the cabinet secretary
included the secretaries of the DoPT and the dept. of expenditure (in the
finance ministry), the information & broadcasting, and the additional
secretary to the prime minister of India. The director of the Institute of
Economic Growth was the independent member. Interestingly, the secretary, dept.
of expenditure declared that he had applied for the post of information
commissioner. So after consultations with the PMO, he was retained on the
search committee

How many times did the search and the selection committees meet?

Only four members of the search committee met on 24^th
November, 2018 in the committee room of the cabinet secretariat to draw up the
shortlist. According to the file notings disclosed by the DoPT, the secretary
I&B and the secretary, expenditure could not attend the meeting.

The selection committee comprising the Prime Minister, his nominee, the
finance minister and the leader of the single largest party in opposition in
the Lok Sabha met on the 11^th of December to finalise their
recommendation to the President of India. Only one name of the appointee was
recommended. In fact, contrary to media reports, the selection of the chief
information commissioner preceded the finalisation of the names of the
information commissioners.

Whom did the search committee shortlist?

The search committee shortlisted
four candidates for the consideration of the selection committee. All four of
them were retired IAS officers including the newly appointed chief information
commissioner, Sudhir Bhargava. No women were included in this short list. The
list of 68 applicants reveals the names of at least four women. No candidate
from other areas of specialisation mentioned in the RTI Act was shortlisted.
This is a clear breach of the Supreme Court’s directions.

Further, the serving information commissioners, Bimal Julka and D. P.
Sinha who had also applied for the post of the chief information commissioner,
were not even shortlisted. Further, three of the four shortlisted candidates
had not even applied in response to the advertisement for the vacancy of the
chief information commissioner. They included Madhav Lal, a former secretary of
the ministry of micro, small and medium enterprises, Alok Raawat, a former secretary of DoPT’s
sister department, department of administrative reforms and public
grievances, R P Watal, the current
principal adviser Niti Ayog and former secretary, dept. of expenditure and Dr.
S. K. Nanda, former addl. chief secretary, government of Gujarat.

Observes Nayak, “The search committee meeting minutes indicate that its
members considered names of other serving and retired civil servants who had
not applied at all. This is perplexing to say the least. One of the women
applicants had recently retired as the chief secretary of the government of
Karnataka. How her candidature was given lesser weightage than that of the
former addl. chief secretary of Gujarat who had not even put in his application
in the first place, is a mystery. The minutes of the search committee meeting
are silent on this issue. This raises serious questions about the manner in
which the search committee determined “eminence” in public life.
Neither the committee nor the DoPT have publicised the criteria adopted for
determining “eminence in public life”. Further, how the claims of the
two serving information commissioners were undervalued in comparison to the
three shortlisted retired bureaucrats who had no previous experience of
adjudicating RTI disputes in any information commission is also a mystery that needs
to be cleared.’’

Tenure and terms and conditions of service of
the new appointees

It may be remembered here that
the government sought to amend the RTI Act mid-2018 to give itself the power to
determine the tenure and the terms and service conditions of the information
commissioners across the country. Despite giving notice of its intention to
introduce a bill to this effect in the Rajya Sabha, the government was not able
to introduce it during the 2018 monsoon session. The documents disclosed by the
DoPT indicate that the government sought to make the changes through the
ordinance route. However, this plan did not materialise and the documents that
the DoPT has disclosed on its website are silent on the underlying causes. The
file notings indicate, the government was planning to reduce the term of the
information commissioners to three years.

The only good part of these appointments:

The selection intimation letters issued to the new appointees indicate
that the terms of appointment are in accordance with the provisions of the RTI
Act, namely five years (including term served as information commissioner)
subject to the maximum age limit of 65. Salaries will be equal to that of the
chief election commissioner and the election commissioners, as the case may be,
in accordance with the provisions of the RTI Act. So despite advertising that
the government would determine the tenure and service conditions of the chief
information commissioner and information commissioners, the government has had
to eat humble pie by toeing the line of the law.

Box

How much time did the Committees spend making the final selections?

The documents released by the DoPT reveal only the date, time and venue
of the meetings of the search and the selection committees.

The search committee met on three occasions (twice for shortlisting the candidates for appointing as ICs and once
for shortlisting the candidate for appointment as the chief information
commissioner).

The selection committee met twice. The duration of these meetings is not recorded in the meeting minutes.
However, the minutes indicate that the search committee looked at all eligible
applications (the number is not known- whether all applications received were
found eligible or not) and also discussed names of other serving and retired
civil servants suggested by its members.

The minutes of the selection committee indicate that it not only
examined the applications shortlisted by the search committee but also all
eligible applications. A simple thought experiment may be conducted to estimate
the time required to consider all applications:

Chief information commissioner’s post: There were 64 applicants
who submitted their applications in a timely manner. The search committee
recommended three more names. So the selection committee had to examine 67
applications. Assuming that each bio data would require at least 5 minutes to
read and familiarise oneself, each member of the selection committee would
require to spend 335 minutes. In other words this implies spending at least 5.5
hours merely examining all applications. If the 4 late applicants’ bio data are
included, another, 20 minutes will have to be added to this figure.

Information commissioners’ post: There were 281 applicants who
submitted their applications in a timely manner. The search committee
recommended one more name. So the selection committee had to examine 282
applications. Assuming again that each bio data would require at least 5
minutes to read and familiarise oneself, each member of the selection committee
would require to spend 1,410 minutes, that is, at least 23.5 hours – or almost
an entire day examining all applications. If the 10 late applicants’ bio data
are included, another 50 minutes will have to be added to this figure. Taken
together, the selection committee would have to spend at least 29 hours merely
reading the applications. How much time would be required to “consider all
relevant factors” before arriving at a consensus on the five names (one
chief and 4 ICs) as mentioned in the minutes is anybody’s guess.

Asks Nayak, “Did the committee
actually spend so much time on the selection process? The government must
urgently answer.’’

(Source:https://www.moneylife.in/article/sc-seeks-explanation-for-arbitrary-appointment-of-information-commissioners/56177.html
)

______________________________________________

RTI Clinic in
February 2019: 2^nd, 3^rd, 4^th Saturday, i.e. 9^th,
16^th and 23^rd
11.00 to 13.00 at BCAS premises

BCAJ Admin

RIGHT TO INFORMATION (r2i)

PART A | DECISION OF HIGH COURT

Disclosure of an interest in the information sought would be necessary to establish the bona fides of the applicant

Case name:

Har Kishan vs. President Secretariat through its
Secretary and Anr.

Citation:

Writ Petition (Civil) No.: 7976/2020

Court:

The High Court of Delhi

Bench:

Justice Prathiba M. Singh

Decided on:

12^th January, 2021

Relevant Act / Sections:

Section 8(1)(j) of Right to Information Act, 2005

Brief Facts and Procedural History:

The petitioner sought information on 6th August, 2018 under the Right to Information Act, 2005 (‘RTI Act’), in respect of certain appointments made for Multi-Tasking Staff at the Presidential Estate, Rashtrapati Bhawan.

In reply, the Public Information Officer gave partial information and did not provide information relating to Item Nos. 4, 5 and 6 – the total number of candidates as per every centre separately who appeared for the given examination; complete name and address of the examination centres of all the candidates who had been selected for appointment to the post of Multi-Tasking Staff, Notification Circular No. A35011/7/16-Admn.; and complete residential address and the father’s name of all selected candidates who had been appointed to the post.

Being aggrieved, the RTI applicant preferred an appeal before the First Appellate Authority, the response to which is not on record. Thereafter, a second appeal was preferred by the petitioner before the CIC, which was disposed of by the CIC vide the impugned decision dated 17th July, 2020, where the CIC had directed the respondent to provide the information under Item Nos. 4 and 5 of his application and rejected information under Item No. 6. The present writ petition is filed against the above CIC order.

On a query from the petitioner it is revealed that the petitioner’s daughter had also applied for appointment as Multi-Tasking Staff in the Presidential Estate, Rashtrapati Bhawan. However, this fact does not find any mention in the present writ petition.

Issues before the Court
Whether information sought under Item No. 6 is protected u/s 8(1)(j) of the RTI Act?

Whether disclosure of an interest in the information sought would be necessary to establish the bona fides of the applicant under the RTI Act?

Ratio Decidendi
Whenever information is sought under the RTI Act, disclosure of an interest in the information sought would be necessary to establish the bona fides of the applicant. Non-disclosure of the same could result in injustice to several other affected persons whose information is sought.

The information sought in respect of the names of the fathers and residential addresses of the candidates is completely invasive and would be a roving and fishing inquiry. The said information which is sought is clearly protected u/s 8(1)(j) of the RTI Act which provides that any such information shall not be provided which constitutes personal information and is invasive of the privacy of individuals.

Decision
The Court did not find any merit in the present writ petition which challenges the rejection of information sought under Item No. 6.

For the act of the petitioner having concealed the material facts, including that his daughter had applied for appointment to the post of Multi-Tasking Staff, the petition was dismissed with costs of Rs. 25,000 to be paid to the ‘High Court of Delhi (Middle Income Group) Legal Aid Society’. The said costs shall be paid within two weeks.

PART B | RIGHT TO INFORMATION

How to file RTI online
By now many of us are aware that an RTI application can be filed online without the hassle of printing, posting or even hand-delivering it. But only few of us use this tool effectively. As discussed in our earlier articles, RTI can assist in seeking information which would be necessary in our professional lives, for example, information from the Ministry of Corporate Affairs.

File your online application on: https://rtionline.gov.in

Steps for filing RTI online
1. For submitting an RTI application, click on ‘submit request’ option on the RTI online website. On clicking the ‘submit request’ option, the ‘Guidelines for use of RTI online portal’ screen will be displayed. This screen contains various guidelines for using the RTI online portal.

2. On accepting the ‘I have read and understood the above guidelines’ tab and clicking on ‘submit’, the online RTI request form screen will be displayed next for the user. The Ministry or Department for which the applicant wants to file an RTI can be selected from the ‘Select Ministry / Department / Apex body’. Personal details of the applicant need to be filled along with the information requested. After entering the security code and submitting the application, the portal will take you to a payment gateway.

3.    The applicant can pay the prescribed fee through the following modes:
   (a) Internet banking through SBI;
   (b) Using credit / debit card of Master / Visa;
   (c) Using RuPay Card.
   (Fee for making an application is as prescribed in the RTI Rules, 2012.)

4. No RTI fee is required to be paid by any citizen who is below poverty line as per RTI Rules, 2012. However, the applicant must attach a copy of the certificate issued by the appropriate government in this regard, along with the application.

5. On submission of an application, a unique registration number would be issued which may be referred to by the applicant for any references in future.

6. In case additional fee is required representing the cost for providing information, the CPIO would intimate the applicant through this portal. This intimation can be seen by the applicant through ‘Status Report’ or through his / her e-mail alert.
.

7. Status of the RTI application filed online can be seen by the applicant by clicking at ‘View Status’ and entering the required details.

In case any more information / assistance is required, one can connect with the BCAS RTI Clinic.

PART C | INFORMATION ON AND AROUND

(1) State Information Commission has no power to direct removal of encroachment under RTI ACT: Uttarakhand High Court

The Bench of Justice Manoj Kumar Tiwari hearing the plea of one Manju Agarwal who challenged the order dated 8th August, 2016 passed by the State Information Commission directing Nagar Palika Parishad, Kotdwar, to take necessary action with the help of the local administration to remove the encroachment, observed in its order that giving a direction for removal of encroachment is beyond the scope of the State Information Commission’s powers under the Right to Information Act.1

(2) ‘Beneficiaries of state largesse’: Karnataka High Court holds Bangalore Turf Club and Mysore Race Club as public authorities under the RTI Act

A single Bench of Justice P.B. Bajanthri, while refusing to interfere with the order passed by the Karnataka Information Commission against the companies, said ‘In the present case, state largesse has been extended to the petitioners under lease deeds. Therefore, they are holding lease lands on behalf of the people and are accountable to the people. If this material information is taken into consideration, one has to draw the inference that petitioners do fall under the definition of ‘public authority’ under the Act, 2005.’2

(3) ‘Issue of considerable public importance’: Delhi High Court seeks response from Central government on plea seeking RTI information about Aarogya Setu
A single-judge Bench of Justice Prathiba M. Singh issued notice to the Central Government and RTI authorities seeking their response to the plea (Saurav Das vs. CPIO, NeGD & Ors.) stating that issues raised in respect of supply of information regarding the Aarogya Setu App and its creation are of considerable public importance. The information sought was with respect to the origin of the app, the approval details, communications with private people involved in making / developing the app, internal notes, memos, file notings and minutes of the meetings held while creating the app, among other information.3

1 https://www.livelaw.in/rti/state-information-commission-has-no-power-to-direct-removal-of-encroachment-under-rti-act-uttarakhand-high-court-168102

2 https://www.livelaw.in/news-updates/karnataka-high-court-rti-bangalore-turf-club-mysore-race-club-168489

3 https://www.barandbench.com/news/litigation/delhi-high-court-issues-notice-challenge-cic-order-refusing-information-creation-aarogya-setu

The most valuable of all talents is that of never using two words when one will do
– Thomas Jefferson

If you want to determine the nature of anything,
entrust it to time: when the sea is stormy, you can see nothing clearly
– Seneca

BCAJ Admin

RIGHT TO INFORMATION (r2i)

Part
A I Decisions of Supreme Court

The information to be
gained access to / certified copies on the judicial side to be acquired through
the machinery provided under the High Court Rules, the requirements of the RTI
Act shall not be available¹

Case name:

Chief Information Commissioner vs. High Court of
Gujarat and another

Citation:

Civil Appeal No(s). 1966-1967 of 2020 [Arising out of
SLP(C) No. 5840 of 2015]

Court:

The Supreme Court of India

Bench:

Justice R. Banumathi

Decided on:

4^th March, 2020

Relevant Act/ Sections:

Gujarat High Court Rules, 1993 – Rule 149 – 154

Right to Information Act, 2005 – Sections 2(f), 2(h),
2(i), 2(j), 4(2), 6(2), 8(1), 19, 22, 28

Articles 124, 145, 216, 225 of Indian Constitution

Brief facts
and procedural history

An RTI application dated 5^th
April, 2010 was filed seeking information pertaining to certain civil
applications made along with all relevant documents and certified copies. In
reply, the Public Information Officer, Gujarat High Court, informed that for
obtaining required copies one should make an application personally or through
one’s advocate by affixing court stamp fees of Rs. 3 with the requisite fee to
the ‘Deputy Registrar’; since the applicant was not a party to the said
proceedings, as per Rule 151 of the Gujarat High Court Rules, 1993 the
application should be accompanied by an affidavit stating the grounds for which
the certified copies are required and on making such application, one will be
supplied the certified copies of the documents as per Rules 149 to 154 of the
Gujarat High Court Rules, 1993.

Being aggrieved, the RTI
applicant preferred an appeal before the Appellate Authority-Registrar
Administration. The appeal was dismissed on the ground that for obtaining
certified copies the alternative effectual remedy is already available under
the Gujarat High Court Rules, 1993.

A second appeal was filed
before the Appellant-Chief Information Commissioner. The respondent reiterated
the position on the High Court Rules but was ordered to provide the information
within 20 days.

Challenging the order of
the Chief Information Commissioner, a special civil application was filed
before the High Court by the respondent. The learned Single Judge, while
admitting the petition, passed an interim order directing the respondent to provide
the information sought within four weeks.

Being aggrieved by the
interim order, the High Court preferred Letters Patent Appeal before the
Division Bench. This Bench set aside the order of the Chief Information
Commissioner by observing that when a copy is demanded by any person, the same
has to be in accordance with the Rules of the High Court on the subject.

The Chief Information
Commissioner, aggrieved by the order of the Division Bench, preferred an appeal
to the Hon’ble Supreme Court of India.

Issues before
the Court

Whether Rule 151 of the
Gujarat High Court Rules, 1993 stipulating that for providing a copy of
documents to third parties they are required to file an affidavit stating the
reasons for seeking certified copies, suffers from any inconsistency with the
provisions of the RTI Act?

When there are two types
of machinery to provide information / certified copies – one under the High
Court Rules and another under the RTI Act – in the absence of any inconsistency
in the High Court Rules, whether the provisions of the RTI Act can be resorted
to for obtaining certified copies / information?

Ratio Decidendi

(i) Grant of certified
copies to parties to the litigation and third parties are governed by Rules 149
to 154 of the Gujarat High Court Rules, 1993. As per these Rules, on filing of
an application with prescribed court fees, stamps, litigants / parties to the
proceedings are entitled to receive the copies of documents / orders /
judgments, etc. The third parties who are not parties in any of the
proceedings, shall not be given the copies of judgments and other documents
without the order of the Assistant Registrar. As per Rule 151 of the Gujarat
High Court Rules, the applications requesting for copies of documents /
judgments made by third parties shall be accompanied by an affidavit stating
the grounds for which they are required. Therefore, the access to the
information or certified copies of the documents / judgments / orders / court
proceedings are not denied to the third parties but a procedure needs to be
followed by the applicant. Hence, the Rules framed by the Gujarat High Court
are in consonance with the provisions of the RTI Act. There is no inconsistency
between the provisions of the RTI Act and the Rules framed by the High Court in
exercise of the object of the RTI Act which itself recognises the powers under
Article 225 of the Constitution of India.

(ii) There is a need to
protect the institutional interest and also to make optimum use of limited
fiscal resources and preservation of confidentiality of sensitive information.
The procedure to obtain certified copies under the High Court Rules is not
cumbersome and is very simple. The information held by the High Court on the
judicial side is the ‘personal information’ of the litigants like title cases
and family court matters, etc. Under the guise of seeking information under the
RTI Act, the process of the Court is not to be abused and information not to be
misused.

(iii) If any information
can be accessed through the mechanism provided under another statute, then the
provisions of the RTI Act cannot be resorted to as there is absence of the very
basis for invoking the provisions of the RTI Act, namely, lack of transparency.
In other words, the provisions of the RTI Act are not to be resorted to if the
same are not actuated to achieve transparency.

(iv) The non-obstante clause of the RTI Act does
not mean an implied repeal of the High Court Rules and Orders framed under
Article 225 of the Constitution of India, but only has an overriding effect in
case of inconsistency. A special enactment or rule cannot be held to be
overridden by a later general enactment simply because the latter opens up with
a non-obstante clause, unless there is clear inconsistency between the
two legislations.

Part
B I Right to Information

PM CARES Fund – The ‘gorilla’ in the
room

By now we are
aware that the Appellate Authority of the Prime Minister’s Office (PMO) has
held that the Prime Minister’s Citizen Assistance and Relief in Emergency Situations
Fund (PM CARES Fund) is not a public authority under the Right to Information
Act, 2005 (RTI Act). Moreover, the funds from the trust will not be transferred
to the National Disaster Response Fund (NDRF) and the fund will not be audited
by the Comptroller and Auditor-General of India, as ruled by the Supreme Court
of India. Yet, there are many questions raised and striving for answers.

To start with, the Prime Minister of India
is the Chairman ex-officio of the Prime Minister National Relief Fund
(PMNRF) as well as the PM CARES Fund, constituted to already have the trappings
of a public trust, the NDRF established thereunder, occupying the arena to deal
with disaster situations, then what was the need to constitute the new PM-CARES
Fund?

Given the federal ideologies of our
Constitution, in case of predicaments like these the amounts collected should
be deposited in the PMNRF and from there transferred to the state governments
for meeting the challenges of the pandemic and saving people’s lives.

A sum of Rs. 6,500 crores was collected by
the PM CARES Fund in just one week and Rs. 3,076.62 crores in four days from
the registration of the trust. This was donated by renowned philanthropists of
our country, well-known tycoons and others. Mr. Mukesh Ambani donated Rs. 500
crores and many others like Mr. Aamir Khan, Mr. Shah Rukh Khan and many more
celebrities came forward and donated to the fund.

The PM CARES
Fund was integrated as a ‘public charitable trust’ with the specified objective
of ‘dealing with any kind of public health crisis or other distress
circumstances, like the Covid-19 pandemic’, ‘to provide financial aid to those
affected by it’ and ‘to perform any other activity not varying with the above
two objectives’. The official website of PM CARES² provides the
following details:

(a) The PM is the ex-officio Chairman
and the Minister of Home Affairs, Minister of Finance and the Minister of
Defence are its ex-officio trustees and the PM would nominate three
eminent persons to the Board.

(b) It receives voluntary contributions,
with Rs. 10 being the least allowable amount of support, with no budgetary
outlay.

(c) Foreign individuals and organisations
can contribute to a separate account exempt from the application of the Foreign
Contribution (Regulation) Act, 2010.

(d) Contributions made can be apportioned
towards the mandatory 2% Corporate Social Responsibility (‘CSR’) expenditure
and shall be allowed as 100% deduction to calculate taxable income for the year
2019-2020, provided that the contribution is made before 30^th
June, 2020³. However, contributions flowing out of budgetary sources
of the PSUs are not accepted.

(e) The Fund is administered on an honorary
basis by a Joint Secretary (Administration) in the PMO as Secretary to the Fund
who is assisted on an honorary basis by an Officer of the rank of Director /
Deputy Secretary (Administration) in the PMO. The Prime Minister’s Office
provides such administrative and secretarial support to the trustees for the
management and administration of the Trust as may be required by them.

(f) The Fund is exempted from paying
income tax as per section 10(23)(c) of the Income-tax Act, 1961.

(g) The PM CARES Fund has been allotted a
Permanent Account Number (PAN) AAETP3993P.

(h) The Fund is audited by an independent
auditor. The trustees of the Fund, during the second meeting held on 23^rd
April, 2020 decided to appoint M/s SARC & Associates, Chartered
Accountants, New Delhi as the auditors of the PM CARES Fund for three years.

(i) There is no statutory period
prescribed for audit of the PM CARES Fund under the Income-tax Act.
However, audit will be conducted at the end of the financial year.

Keeping in mind the larger picture of
transparency, the PM CARES Fund should come under the purview of the Right to
Information Act, 2005. Likewise, technical reasons like the fund being set up
by the government by using government machinery to promote it and usage of
gov.in as domain name, providing tax reliefs, etc. needs to be considered.
There are multiple pleas in the High Courts and the Supreme Court of India
requesting to bring the PM CARES Fund under the purview of the RTI Act, 2005
and also asking to transfer the funds from the Trust to the NDRF, which have
been dismissed by the respective courts.

Part
C I Information on and Around

(1)
Appointment of architect for Balasaheb Thackeray Memorial not made by MMRDA but
a trust

In reply to
the RTI application filed by a Mumbai-based RTI activist, Mr. Anil Galgali, the
Mumbai Metropolitan Region Development Authority (MMRDA), the nodal agency for
the construction of the memorial of the late Balasaheb Thackeray which will be
built at Shivaji Park in Dadar, mentioned the procedure of selection of the
architect. The Thackeray Memorial had issued a tender notice directing MMRDA to
appoint a distinguished architect. But the Chairman of the Memorial held a
meeting on 14^th May, 2020 wherein architects and project advisers
were selected. MMRDA being the nodal agency for the project and also because of
the taxpayer’s money being involved, should have appointed the consultant and
the architect. But in this case a private trust did it all without inviting any
tender.⁴

(2) Only 44% State Information
Commissions conduct hearings in July, 2020

The functioning of the State Information
Commissions (SICs) has fallen from 80% in June to 44% in July. This was
observed in a study conducted by the Commonwealth Human Rights Initiative
(CHRI). The study was carried out by contacting each of the 28 SICs across the
country by phone and emails and by following their websites. The first survey
(in April) found that none of the SICs was working, but during the second
survey (in May) 12 SICs had opened their offices. However, only eight were
conducting hearings. According to its third rapid telephonic survey, the
organisation found the SICs that had started attending to litigants in June had
stopped by July.⁵

(3) Bank of Maharashtra writes off Rs.
7,400 crores in the last four years owed by loan defaulters

The Bank of Maharashtra, a public
sector bank, has ‘technically written off’ an astounding Rs. 7,400 crores
unsettled by loan defaulters in the last four years. The bank has said that it
would recover the amount at a later stage and that it has not been waived
permanently. The recovery rate of such defaults is low and it takes a huge
amount of time. According to information provided by the bank, from 2011 to 2020 it
has written off a total of Rs. 7,400 crores⁶.

______________________________________________________________________________________________

1 Chief Information Commissioner vs. High
Court of Gujarat and another available at
https://main.sci.gov.in/supremecourt/2015/4228/4228_2015_5_1501_21164_Judgement_04-Mar-2020.pdf
visited on 18.08.2020

2 https://www.pmindia.gov.in/en/about-pm-cares-fund/

3 http://egazette.nic.in/WriteReadData/2020/218979.pdf

4 https://www.timesnownews.com/mumbai/article/who-appointed-architect-for-balasaheb-thackeray-memorial-mmrda-or-trust/638697

5 https://www.hindustantimes.com/india-news/only-44-state-information-commissions-conduct-hearings-chri-survey/story-tMT6otWRcVxyeC0nM7jCNN.html

6 https://indianexpress.com/article/cities/mumbai/bank-of-maharashtra-writes-off-rs-7000-cr-owed-by-loan-defaulters-6557765/

We live in a country where:

Driving without a license = fine of Rs. 2000,

Not having a PUC = fine of Rs. 1000,

Not wearing a mask outside = fine of Rs. 1000,

Insulting the Supreme Court = fine Rs. 1

— social media post on the recent decision by
the SC

BCAJ Admin

RIGHT TO INFORMATION (r2i)

PART A | DECISION OF HIGH COURT

Cogent reasons have to be given by the public authority as to how and why the investigation or prosecution will get impaired or hampered by giving the information in question

Case name:

Amit Kumar Shrivastava vs. Central Information
Commission, New Delhi

Citation:

Writ Petition (Civil) No.: 3701/2018

Court:

The High Court of Delhi

Bench:

Justice Jayant Nath

Decided on:

5^th February, 2021

Relevant Act / Sections:

Section 8 of Right to Information Act, 2005

Brief facts and procedural history:

The petitioner filed an RTI application on 5th September, 2016 under Rule 6 of the Right to Information Act, 2005 (‘the RTI Act’) seeking disclosure of point-wise information which was mentioned at serial Nos. 5(i) to 5(xxv) of the said application.

The CPIO did not provide correct information in respect of point 5(i) of the RTI application. The CPIO hid the cases registered under IPC / PC Act. Information was not disclosed u/s 8(1)(h) of the RTI Act.

The petitioner filed a first appeal on 10th October, 2016 before the First Appellate Authority. The Appellate Authority did not decide the appeal of the petitioner in the defined period. The petitioner then filed a second appeal before the Second Appellate Authority CIC. It is the grievance of the petitioner that during the hearing the respondent believed the verbal submissions of the CPIO instead of the written submissions of the petitioner and allowed them to sustain their stand for non-disclosure of the information in respect of all the points by claiming exemption u/s 8(1)(h) of the RTI Act.

Court’s observation and judgment
The Court was of the view that the facts, including details regarding the grave allegations against the petitioner and the pending criminal and departmental proceedings against him, were not disclosed. However, the CIC dismissed his appeal holding that the proceedings initiated by the CBI are pending and exemption can be claimed u/s 8 of the RTI Act that lays down certain conditions when exemptions are allowed.

Section 8(1)(h) of the Act provides that information which ‘would impede the process of investigation or apprehension or prosecution of offenders’ need not be disclosed to citizens. On examination, the High Court observed that what follows from the legal position is that where a public authority takes recourse to this section to withhold information, the burden is on the public authority to show in what manner disclosure of such information could impede the investigation. The word ‘impede’ would mean anything that would hamper or interfere with the investigation or prosecution of the offender.

Further, the word ‘investigation’ used in section 8(1)(h) of the Act should be construed rather broadly and include all inquiries, verification of records and assessments. ‘In all such cases, the inquiry or the investigation should be taken as completed only after the competent authority makes a prima facie determination about the presence or absence of guilt on receipt of the investigation / inquiry report from the investigating / inquiry officer’, said the Single Bench.

Since the CIC in its order made no attempt whatsoever to show how giving the information sought would hamper the investigation and the on-going disciplinary proceedings, the Court decided to quash its order. The Court also remanded the matter back to the CIC for consideration afresh in terms of the legal position held by the High Court in the present matter.

Justice Jayant Nath also referred to the case of Union of India vs. Manjit Singh Bali (2018) where the High Court of Delhi had held that the exclusion u/s 8(1)(h) of the RTI Act (information which would impede the process of investigation or apprehension or prosecution of the offenders) has to be read in conjunction with Article 19(2) of the Constitution of India. Such denial must be reasonable and in the interest of public order1.

PART B | DECISION OF SIC

Private medical colleges within RTI Act’s purview: Rajasthan SIC

The private medical colleges in Rajasthan have been brought within the purview of the Right to Information (RTI) Act, 2005, following an order of the State Information Commission which has imposed a fine of Rs. 25,000 on the Principal of Geetanjali Medical College in Udaipur for flouting the transparency law and refusing to provide information.

Allowing an appeal against the college, the Information Commission held in its recent order that the State Government had allotted land to the institution at concessional rates and the college was established under a law passed by the State Legislature.

‘Based on these facts, the college falls within the purview of the RTI Act. The college is governed by the rules and regulations framed by the State government’, said Information Commissioner Narayan Bareth.

He imposed the fine on the Principal for refusing to provide information sought by an applicant2.

PART C IINFORMATION ON AND AROUND

Vaishno Devi temple got 1,800 kg. of gold in 20 years

The Vaishno Devi Temple in Jammu received over 1,800 kg. of gold and over 4,700 kg. of silver, besides Rs. 2,000 crores in cash, in the past 20 years (2000-2020) as donation3.

Supreme Court refuses to disclose Justice Patnaik’s probe report on ‘Larger Conspiracy’ against judiciary under RTI

The Public Information Officer of the Supreme Court has refused to disclose the details of a report submitted by the former Supreme Court Judge, Mr. Justice A.K. Patnaik, on the probe into the ‘larger conspiracy’ behind the sexual harassment allegations levelled against the then Chief Justice of India, Mr. Ranjan Gogoi4.

Who writes PM Modi’s speeches?

‘Depending upon the nature of event, various individuals, officials, departments, entities, organisations, etc., provide inputs for the PM’s speech and the speech is given final shape by the PM himself,’ the PMO said in its reply to an RTI query5.

SBI refuses data under RTI on interest waiver claims it received

In October, 2020 the Government had appointed SBI as the nodal agency and said it will receive funds for settlement of such (interest waiver) claims. Other lenders were told to submit their claims by 15th December to India’s largest lender. The State Bank of India, in charge of collating and settling compound interest waiver reimbursement claims by lenders for the last round of the interest waiver scheme during the moratorium, has declined to provide information on the quantum of claims it received6.

Centre paid Rs. 4.10 crores as commission to SBI for sale of electoral bonds

The Department of Economic Affairs, Ministry of Finance, in its reply dated 19th March, 2021 to an RTI application stated that an amount of over Rs. 4.35 crores (Rs. 4,35,39,140.86), inclusive of GST, has been charged to the Government as commission consequent to the sale of electoral bonds in 15 phases.

An aggregated amount of Rs. 4.10 crores (Rs. 4,10,16,764.60) has been paid by the Government as commission, consequent to the sale of electoral bonds in 13 phases. Commission for the 14th and 15th phases of electoral bond issuance has not been paid till date7.

1 https://www.latestlaws.com/latest-news/public-authority-to-give-cogent-reasons-for-claiming-exemption-from-disclosure-of-information-sought-under-the-rti-act-read-order/

2 https://www.thehindu.com/news/national/other-states/rajasthan-brings-private-medical-colleges-within-rti-acts-purview/article34135979.ece

3 https://timesofindia.indiatimes.com/city/dehradun/vaishno-devi-temple-received-over-rs-2000-crore-cash-1800-kilos-of-gold-and-4700-kilos-of-silver-in-last-20-years-rti/articleshow/81638135.cms

4 https://www.livelaw.in/top-stories/supreme-court-refuses-disclose-justice-patnaiks-probe-report-larger-conspiracy-rti-171351

5 https://www.indiatoday.in/india/story/who-writes-pm-modi-speeches-pmo-reply-to-rti-1774874-2021-03-02

6 https://www.livemint.com/companies/news/sbi-refuses-data-under-rti-on-interest-waiver-claims-it-received-11616563915641.html

7 https://www.theweek.in/news/india/2021/03/22/centre-paid-rs-4-10-crore-as-commission-to-sbi-for-sale-of-electoral-bonds.html

BCAJ Admin

RIGHT TO INFORMATION (r2i)

Supreme Court refuses to recall 2015 verdict directing RBI to divulge information about banks under RTI1

Case name:

Reserve Bank of India vs. Jayantilal N.
Mistry & Anr.

Citation:

M.A. No. 2342 of 2019, M.A. No. 805/2020,
M.A. No. 1870/2020, M.A. No. 534/2020, M.A. No. 1046/2020, M.A. No.
1129/2020, M.A. No. 1646/2020, M.A. No. 1647/2020, M.A. No. 1648/2020, M.A.
No. 2008/2020, M.A. No. 560/2021, M.A. No. 573/2021 in transferred case
(Civil) No. 91 of 2015

Court:

The Supreme Court of India

Bench:

Justice L. Nageswara Rao and Justice Vineet Saran

Decided on:

28^th April, 2021

Relevant Act / sections:

Sections 8(1)(a)(d) and (e) and 2(f) of Right to
Information Act, 2005

Brief facts and procedural history:

An RTI activist named Jayantilal Mistry from Gujarat way back in 2010 had sought information under the RTI Act, 2005 from the RBI about a Gujarat-based co-operative bank.

The information pertained to the annual inspection reports prepared by the RBI which had not been put into the public domain. Mistry filed an application under the RTI Act in October, 2010 before the Central Public Information Officer (CPIO) of the RBI.

The RBI, however, did not provide the requested details. The information seeker then filed an appeal before the designated First Appellate Authority (FAA) of the RBI.

On 30th March, 2011, the FAA disposed of the appeal by upholding the order of the CPIO. The aggrieved Mistry filed a second appeal before the Central Information Commission (CIC), New Delhi.

The CIC in its judgment dated 1st November, 2011 directed the RBI to provide information before 30th November, 2011.

Aggrieved by the decision of the CIC, the RBI filed a writ petition before the Delhi High Court for quashing of the CIC’s judgment. The High Court, while issuing notice, stayed the operation of the CIC’s order.

The matter was finally challenged before the Supreme Court of India.

The Supreme Court in its 2015 judgment on the applicability of RTI has made a detailed reference to section 2(f) of the RTI Act, 2005 which defines ‘information’. The RBI collects inspection reports from various banks. Since these reports fall within the definition of ‘information’, the same must be provided to citizens. Ideally, the RBI should make these reports public through its website.

A joint plea / recall petition was filed by the Central Government and ten banks seeking a recall of the 2015 judgment.

Issues before the Court:

Whether an application can be filed to recall the judgment of the Hon’ble Supreme Court?

Ratio decidendi:

The dispute relates to information to be provided by the RBI under the RTI Act. Though the information pertained to banks, it was the decision of the RBI which was in challenge and decided by this Court.

No effort was made by any of the applicants in the Miscellaneous Applications to get themselves impleaded when the transferred cases were being heard by this Court. The applications styled as recall are essentially applications for review.

The nomenclature given to an application is of absolutely no consequence; what is of importance is the substance of the application – M.C. Mehta vs. Union of India.

A close scrutiny of the applications for recall makes it clear that in substance the applicants are seeking a review of the judgment in Jayantilal N. Mistry (2015).

Decision:

The Court was of the opinion that these applications were not maintainable. It made it clear that it is not dealing with any of the submissions made on the correctness of the judgment of this Court in Jayantilal N. Mistry (2015).

The dismissal of the applications shall not prevent the applicants from pursuing other remedies available to them in law. All the Miscellaneous Applications were dismissed.

PART B | HIGHLIGHTS OF CIC ANNUAL REPORT, 2019-20

Total number of Public Authorities: 2,193

Total number of Public Authorities who have submitted all the four quarterly returns: 2,131

Total number of Public Authorities who have not submitted all the four quarterly returns: 62 (the defaulters include public authorities of four Union Territories and 21 Ministries)

Opening balance of RTI requests received by Public Authorities (as on 1st April of the reporting year): 3,10,110

Total number of RTI requests received during the reporting year: 13,74,315

Total number of RTI requests including opening balance: 16,84,425

Total number of RTI requests transferred to other Public Authorities u/s 6(3): 1,82,988

Total number of first appeals received: 1,52,354

Total number of first appeals disposed: 96,812

Total number of RTI requests rejected by Public Authorities: 58,634

Total number of cases where disciplinary action has been initiated against an officer in respect of administration of the RTI Act: 23

Total amount collected by Public Authorities (in INR): 93,08,534

Total number of designated CAPIOs: 60,432

Total number of designated CPIOs: 21,756

Total number of designated FAAs: 8,923

Number of second appeals / complaints registered during reporting year: 22,243

Number of second appeals / complaints disposed during reporting year: 16,720

Number of second appeals / complaints pending for disposal as on 1st April of reporting year: 35,178

One out of every three RTIs is rejected using section 8 (1)2.

PART C | INFORMATION ON AND AROUND

Two bribery and disproportionate assets complaints had been received against Sachin Waze but no inquiry was going on against him till March, 2021

The Anti-Corruption Bureau of Maharashtra Police has sent a proposal to the Home Department for an open inquiry against allegations of corruption and disproportionate assets against suspended and jailed Assistant Police Inspector Sachin Waze. A Right to Information (RTI) query has separately revealed that the ACB ignored a complaint alleging bribery and disproportionate assets against Waze last year, soon after he was reinstated in the police force3.

Orissa High Court refuses to grant interim stay on OIC order

OIC had issued the order on 9th July 9, 2020 on a complaint for bringing OOA under the ambit of RTI to ensure greater transparency and accountability in its operations. While issuing the order, OIC had directed OOA to comply with the provisions of the Act within 30 days from the date of receipt of the order. The OOA operates and maintains the Barabati Stadium in Cuttack which had come up on land given by the Government under a long-term lease for development of sports in Odisha. OOA is affiliated to the Indian Olympic Association (IOA) which has already subjected itself to the provisions of RTI in compliance with the order passed by the High Court of Delhi in some writ petitions in 20104.

28,000 cases lodged under section 188 of IPC pending with Pune Police

Section 188 of the IPC states that any person who disobeys an order given by a public servant can be imprisoned for up to one month. Even though in 2020 the then State Home Minister Anil Deshmukh had announced that the Government would withdraw cases against people booked for violating Covid lockdown norms, yet the pending cases are in huge numbers5.

_______________________________________________________
1   https://www.livelaw.in/pdf_upload/rbi-v-jayantilal-n-mistry-2021-392582.pdf
2   https://cic.gov.in/sites/default/files/Reports/CIC%20Annual%20Report%202019-20%20-%20English.pdf
3   https://indianexpress.com/article/cities/mumbai/anti-corruption-bureau-sends-proposal-to-home-dept-for-open-inquiry-against-waze-7295985/
4   https://www.newindianexpress.com/states/odisha/2021/may/22/orissa-high-court-refuses-to-grant-interim-stay-on-oic-order-2306012.html
5   https://www.hindustantimes.com/cities/others/28000-cases-lodged-under-section-188-of-ipc-pending-with-pune-police-101621605589107.html

BCAJ Admin

PART A: Decision of Supreme Court

CBSE asked to provided answer sheets and scrupulously observe the directions of Supreme Court in C.A. No. 6454 of 2011

Even after the historic 2011 judgment of the Supreme Court, where procuring copies of answer sheets by students came under the Right to Information (RTI) Act, the Central Board of Secondary Education (CBSE) continued to defy it. In a reply to a RTI query, posed by Whistle for Public Interest (WHIP), comprising of a group of law students, the CBSE replied on 28 December 2015, that, it charges Rs700 per subject for providing copy of answer sheets. In addition, students were compulsorily required to go through the process of ‘Verification of Marks’ for which the CBSE has prescribed fee of Rs.300 per subject. This meant that a student had to pay Rs1,000 per subject, if she applied for a copy of the answer sheet.
This was in gross violation of the SC order of 2011, which held that “Answer-Sheet is an Information and therefore, examinees shall have the right to inspect their Answer-Sheets under RTI Act, 2005 and its Rules made there under which prescribes Rs10 as application fee for getting the information and Rs2 per page for the copies of such information.”

The Supreme Court directed the CBSE to “scrupulously observe” the directions made by the Court in 2011. The CBSE has been asked to provide evaluated answer-sheets to candidates under RTI Act in compliance with the Supreme Court’s Ruling in the matter of CBSE & Anr. Vs. Aditya Bandopadhyay & Ors – Civil Appeal No. 6454/2011.

All the state run institutions falling under the meaning of Public Authority defined under section 2(h) of the RTI Act are also obliged to provide answer-sheets under this transparency law.

shailesh.kwebmaker

Part D: Ethics, Governance & Accountability

Judicial Transperancy

‘Open letter to Chief Justice Thakur: The latest call for judicial transparency must not be ignored’

Former Central Information Commissioner Shailesh Gandhi asks why the judiciary is loath to implement the Right to Information Act.

Dear Sir,
I am writing this letter in the spirit of seeking an improvement in the working of the judiciary, and not as an exercise in criticism. India has not been able to deliver the fruits of democracy as per the aspirations of its people. I would submit that the responsibility lies with all the four estates – legislature, executive, judiciary and the press – as well as the citizens. One of the attributes on which we have been weak, is in recognising the citizen’s right to information. Despite Parliament passing a Right To Information Act, which rates among the best five laws as far its provisions are concerned, our global rank in implementing it is a poor 66.

It is well recognised that the first clarion call for transparency was given by Justice Mathew who wrote:
“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. Their 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 repercussion on public security”.
— (State of UP vs Raj Narain, 1975.)

The only restrictions on this fundamental right under Article 19(1)(a) permitted by the Constitution are those specified in Article 19(2). The exemptions in the Right To Information Act cover all of these. Yet the performance of all three estates in implementation has not been very good. There was a hope that the judiciary with its pronouncements on Right to Information would be a role model and enforcer of this right. This hope has been belied. There are various instances that can be highlighted. Here are two:
1.   The rules for Right to Information framed by many courts are not in consonance with the Right to Information Act. In fact, the Bombay High Court did not even frame the rules for a year, and some courts have exemptions not in the law. Some high courts have kept Rs 500 as the application fee, while most other competent authorities charge Rs 10.
2.   The Supreme Court Public Information Officer challenged an order of the Central Information Commission in the High Court, and despite it being dismissed by a division bench it has been stayed by the Supreme Court. The Supreme Court has not heard this matter since 2010.
3.
As Aniket Aga wrote in The Wire:
“While the government often comes under fire for not effectively implementing the RTI Act, few have noticed that India’s highest court violates the Act routinely, and with an impunity that makes the government’s evasion of the RTI Act seem benign.”

This is also evident in the way the court refuses to share information about the process of appointments and the reasoning behind it. Charges and complaints against judges are not shared with citizens, nor are the results of investigations. Lack of transparency and accountability are justified on the grounds of maintaining the independence of the judiciary. The little man – the citizen – is considered immature by the powerful to monitor them. Ills that afflict the other pillars of democracy are likely to be present in the judiciary as well. The best safeguard and disinfectant is transparency, and the demand for accountability that follows.

Justice Chelameswar has very boldly raised the issue of lack of transparency in the judiciary, and the nation is grateful to him. Please do not try to “sort it out”. You must take this opportunity to bring accountability and better governance to the nation. There is an urgent need to ensure that all judicial vacancies are filled by a proper, transparent process so that the faith of people in our democracy is restored. It is impossible that the judges can by themselves spare adequate time to select the new judges with proper diligence. You must be aware that the increase in backlog of cases is around 1.5% each year, whereas the vacancies in the judiciary are over 20%. This is the cause for pendencies. A proper process with adequate resource must do this job.

Please recognise Justice Chelameswar’s contribution to our democracy, take this opportunity to bring transparency to the judiciary and accept that mistakes may be made in all fields. A democracy providing an equitable and fair nation will evolve, not by having infallible public servants, but by devising institutional mechanisms that will correct the foibles of men.

We have lost the balance of the checks and balances designed by our Constitution. I beseech you sir, for the sake of our nation let us restore it with your authority and wisdom.

Yours truly

Shailesh Gandhi

RTI Clinic in October 2016: 2nd, 3rd, 4th Saturday, i.e. 8th, 15th, and 22nd 11.00 to 13.00 at BCAS premises.

shailesh.kwebmaker

PART C: Information on & Around

Maharashtra Information Commission: Quick turnaround

Maharashtra’s information commission has set a blistering pace to tackle pending backlog, with a top official clearing a staggering 6,000 cases last year Anyone else would have thrown up their hands in despair on seeing over seven lakh right to information (RTI) applications at Maharashtra’s exceedingly busy information commission, but not the panel’s chief Ratnakar Gaikwad who took up the challenge and ensured that the cases were expedited. Ratnakar Gaikwad, the 64-year-old former Maharashtra chief secretary and IAS officer of 1975 batch, inherited a backlog of 4,074 cases of three years when he was named state chief information commissioner (CIC) in 2012. Within a month of joining, the bureaucrat came up with an ingenious solution – templates that helped speed up work. Gaikwad prepared 120 templates that fit a majority of the cases. It broadly covered certain legal provisions, and similar types of cases in which the facts are the same but the information may be different

RTI appeals pendency up 96 per cent in Pune as SIC shuttles between the city and Nashik

Of the seven SIC benches in the state, the ones in Nashik, Aurangabad and Amravati have been lying vacant.

Over the last few months, pendency of second appeals with the Pune bench of the State Information Commissionerate has seen a whopping 96 per cent rise. With 8,294 second appeals pending before it as of July 2016, the Pune bench has the second highest pendency in the state, the first being Amravati SIC bench having 8,340 appeals pending before it.

The SIC benches are practically the last stage of appeals for information seekers under the Right to Information (RTI) Act, 2005. Second appeals are filed after the information seeker has exhausted all efforts to obtain information with government offices. SICs have the power to fine/summon and order for information to be provided to the applicant.

At present, Maharashtra has seven SIC benches. State’s chief information commissioner Ratnakar Gaikwad is based in Mumbai.

Maharshtra government: Public Information Officers can’t answer RTIs seeking information on them

The onus of taking decisions about such applications has now been given to the public authorities or other public information officers (PIOs) and appellate authorities (AA).

In a move to address the long standing complaints of Right to Information (RTI) users, the state government has issued a circular which has now debarred public information officers (PIOs) and appellate authorities (AA) from hearing or taking decisions on RTI applications which seek personal information about them. The responsibility of taking decisions about such applications has now been given to the public authorities or other PIOs/AAs.

PIOS and AA are designated by the RTI Act to take decisions about the application requests from information seekers. In case of information related to PIO or AA, the decision is taken by those officials themselves. RTI activists had pointed out how this was in contravention to the set norms of jurisprudence. Judges are often known to refuse hearing of cases if they feel there would be a conflict of interest in them — “Not before me” — is the commonly used term in such cases.

The recent notification issued by the General Administrative Department (GAD) of the state government, other than barring the PIOS/AAs from hearing such applications, have issued several other directives. Such applications are to be duly registered and separate records should be kept of them. As mentioned above, the new notification has mandated that such applications would be heard by the public authority (this usually is the head of the establishment) or other PIOs/AAs.

(Source : News articles from Indian Express)

shailesh.kwebmaker

PART B: RTI Act, 2005

Real time updates for Right to Information cases via email, SMS

The Central Information Commission (CIC) has taken an e-leap and would function like an e-court with all its case files moving digitally and the applicant being alerted about case hearings through an SMS and email. So now one can get real time updates while filing a complaint or appeal under Right to Information (RTI) Act.

Starting mid of September 2016, CIC would move to a new software, which would make the hearings faster and more convenient. As soon as an RTI applicant files an appeal or a complaint, he would be given a registration number and would get an alert on email and mobile phone about his case. The case would then be electronically transferred immediately to the concerned information commissioner’s registry electronically.

All this would be done within hours. At present, the process takes a few days.

The new system would also alert the RTI applicant about the date of hearing. An automatic SMS and email would be generated. Apart from this, the applicant would get an email in advance listing out the records given by him to CIC and the government’s submissions in his case. A senior CIC official told ET, “At present, the appellant and the ministry sometimes appear in the case without knowing what the submissions are. So this would help both sides in preparing for the case.”

The Commission would be able to expedite the processing of applications with the new software. At present, it also has to deal with complaints of loss of case files and non registration of cases. The facility would not only benefit the appellants but also information commissioners.

When a commissioner would open a case file on his computer, he would get a ready background of the specific case and also details about the appellant. The official said, “We would know if he has more appeals pending. This could facilitate hearing of multiple appeals of the same person on a given day. It would directly impact pendency as more cases would be disposed in a day.” CIC has already scanned 1.5 lakh files and converted them into electronic files.

(Source : Economic Times, September 05, 2016)

shailesh.kwebmaker

TRIBUTE TO MR. NARAYAN VARMA, RTI ACTIVIST

August 20, 2016, 85th birth anniversary of our beloved Narayan Sir.
Can’t express in words what you mean to us, Sir, only thing we wish to tell you is
THANK YOU!

As we look back over time
We find ourselves wondering …..
Did we remember to thank you enough
For all you have done for us?
For all the times you were by our sides
To help and support us …..
To celebrate our successes
To understand our problems
And accept our defeats?
Or for teaching us by your example,
The value of hard work, good judgement,
Courage and integrity?
We wonder if we ever thanked you
For the sacrifices you made.
To let us have the very best?
And for the simple things
Like laughter, smiles and times we shared?
If we have forgotten to show our
Gratitude enough for all the things you did,
We’re thanking you now.
And we are hoping you knew all along,
How much you meant to us.

THANK YOU SIR. WE MISS YOU A LOT.

shailesh.kwebmaker

Part D REMEMBERING NARAYAN VARMA

I first met Narayanbhai Varma in 2006 when we were organizing a big RTI drive in about 40 places across India. We needed volunteers and had decided to get different organizations to take up the responsibility of paying for different requirements so that there was no need for any fund collection. Narayanbhai asked what I expected from BCAS. I requested him to either agree to pay the rent for the fortnight for the hall at Government Law college, or get some volunteers. He first asked me a few questions and then with a twinkle in his eye said he would do both. He agreed to pay for the hall from BCAS and also helped to get about a dozen very good volunteers. He came up with a small booklet on RTI which was distributed during the camp. After the event was over with over 3000 RTI applications being filed, he showed his appreciation by saying that BCAS would happily give us place for RTI meetings. We held many meetings at BCAS since there was no need to worry about payments.

He had a good commitment and grasp for law, having been a successful Chartered Accountant. This came through very well when we discussed some finer points of the RTI Act. Despite his age and failing health in the last few years, he happily came to RTI meetings for discussions, planning strategy or holding a RTI convention. I am aware that he was instrumental in getting RTI clinics at BCAS, IMC, Giants and PCGT.

He wrote an article on RTI for every issue of BCA journal, which was provided guidance to many users and practitioners of RTI . I am sure BCAS will continue this commitment to RTI . For many years if a RTI event was to be held Narayanbhai would contribute his time, wisdom and money without any hesitation, or seeking any specific recognition.

When I became a Central Information Commissioner he was very joyous and informed many people. When I met him, he embraced me with such warmth and love, I felt I was being embraced by my father who was no more. Narayanbhai always displayed his love for me and would forgive any mistakes very generously. After I went to Delhi he would often praise my work before others who told me of the pride he displayed when referring to my decisions and work.

There is one incident which I will always remember because it showed Narayanbhai’s unique humility and intellectual greatness. When the 97th Constitutional amendment was passed, he and many other activists thought one implication was that it would have the implication of covering Cooperative Societies in the domain of RTI . He called me and said he wanted to hold a meeting to discuss this issue and would call for a meeting at the IMC. I had not read the amendment but agreed to his request that I should be the main speaker on this subject. On the day before the meeting I carefully read the amendment and the arguments advanced by other RTI activists. I came to the conclusion that this amendment would not mean that Cooperative societies had come in the ambit of RTI . I called up Narayanbhai and explained the position to him and suggested that there could be some other person as the main speaker. Without any hesitation he said I would be the main speaker and should give my views, even if they did not agree with his. This was a man who readily accepted a different opinion and respected it. He had internalized the fundamentals of freedom of speech and information.

Narayanbhai wrote consistently on RTI and was very keen to empower citizens with it. He had understood the power and potential of this law to bring better governance for India. His demise was a personal loss for me, which I have felt very deeply. Narayanbhai’s contribution is an inspiration for all of us, and we owe it to his memory to bring greater life and vigour to its implementation. RTI is great tool for our democracy and better governance and Narayanbhai’s contribution to it has been very significant.

shailesh.kwebmaker

ETHICS, GOVERNANCE & ACCOUNTABILITY

ACCOUNTABILITY

In ethics and governance, accountability is answerability, blameworthiness, liability and the expectation of accountgiving. As an aspect of governance, it has been central to discussions related to problems in the public sector, non-profit and private (corporate) and individual contexts Political accountability is the accountability of the government, civil servants and politicians to the public and to legislative bodies such as a congress or a parliament.

Within an organization, the principles and practices of ethical accountability aim to improve both the internal standard of individual and group conduct as well as external factors, such as sustainable economic and ecologic strategies. Also, ethical accountability plays a progressively important role in academic fields, such as laboratory experiments and field research.

Internal rules and norms as well as some independent commission are mechanisms to hold civil servants within the administration of government accountable. Within department or ministry, firstly, behavior is bound by rules and regulations; secondly, civil servants are subordinates in a hierarchy and accountable to superiors. Nonetheless, there are independent “watchdog” units to scrutinize and hold departments accountable; legitimacy of these commissions is built upon their independence, as it avoids any conflicts of interests. The accountability is defined as an element which is part of a unique responsibility and which represents an obligation of an actor to achieve the goal, or to perform the procedure of a task, and the justification that it is done to someone else, under threat of sanction.

RTI Clinic in June 2016: 2nd, 3rd, 4th Saturday, i.e. 11th, 18th and 25th, 11.00 to 13.00 at BCAS premises.

shailesh.kwebmaker

Right to Information

PART A I DIRECTIONS OF SUPREME COURT

– Fee For RTI Application Should Not
Exceed Rs.50/, Rs. 5/- Per Page, Motive Need Not Be Disclosed

The Supreme
Court on March 20, 2018 capped the fee charged by high courts for responding to
queries filed under the RTI Act at Rs. 50 per application, bringing cheers to
activists seeking information under the transparency law.

The bench
comprising Justices A. K. Goel, R. F. Nariman and U. U. Lalit also asked the
high courts not to force applicants to disclose the reason for seeking
information under the Right to Information law.

On the fee: “We
are of the view that, as a normal Rule, the charge for the application should
not be more than Rs.50/- and for per page information should not be more than
Rs.5/-. However, exceptional situations may be dealt with differently. This
will not debar revision in future, if the situation so demands.”

On disclosure
of motive: With regard to the requirement of disclosure of motive for seeking
information, the Court ruled, “No motive needs to be disclosed in view of the
scheme of the Act.

On CJ’s
permission for disclosure of information: The Court noted that the requirement
of seeking permission of the Chief Justice or the concerned Judge for
disclosure of information “will be only in respect of information which is
exempted under the Scheme of Act.”

On transfer of
application to another public authority: The Court opined that while normally
the public authority should transfer the application to another public
authority if the information is not available, the mandate may not apply “where
the public authority dealing with the application is not aware as to which
other authority will be the appropriate authority”.

On disclosure
of information on matters pending adjudication: With regard to the Rules
debarring disclosure of information on matters pending adjudication, the Court
clarified that “the same may be read consistent with Section 8 of the Act, more
particularly sub-section (1) in Clause (J) thereof, bench passed the order on a
batch of petitions challenging the RTI rules of various high courts, and other
authorities like the Chhattisgarh Legislative Assembly, which imposed
exorbitant fees for application and photocopying.

Advocate
Prashant Bhushan, the counsel for NGO Common Cause, which was one of the
petitioners, said exorbitant fee was charged to disincentivise the general
public from seeking information. He also said the fee should not act as a
deterrent for information seekers.

The petition
filed by the NGO claimed that the Central Information Commission had repeatedly
asked the Allahabad High Court to modify its RTI rules, but its pleas were
ignored.

The Allahabad
High Court was charging Rs. 500 for a reply under the RTI Act, the petition
claimed.

A similar plea
was filed against the Chhattisgarh High Court which had dismissed a petition of
an applicant Dinesh Kumar Soni, and imposed a cost of Rs 10,000 on him for
seeking information.

In his
petition, Soni had challenged the Rule 5 and Rule 6(1) of the Chhattisgarh
Vidhan Sabha Secretariat Right to Information (Regulation of fees and costs)
Rules 2011, which require that a person making an application u/s. 6(1) of the
RTI Act was required to pay Rs. 300.

(Source: http://www.livelaw.in/fee-rti-application-not-exceed-rs-50-rs-5-per-pages-motive-need-not-disclosed-read-sc-directions-read-order/)

PART
B RTI ACT, 2005

– India’s
Right to Information in a mess

Over the years, the pendency of cases under
Right to Information (RTI) Act has shown an upward trend with close to two lakh
pending second appeal and complaint cases been reported under the Act across
the country.

According to the latest report “State of
Information Commissions and the Use of RTI Laws in India (Rapid Review 4.0)” by
Access to Information Programme, Commonwealth Human Rights Initiative (CHRI), a
New Delhi-based NGO, there were 1.93 lakh pending second appeal and complaint
cases in 19 Information Commissions at the beginning of this year as compared
to 1.10 lakh cases pending across 14 Information Commissions in 2015. The
report based on annual reports and websites of Information Commissions was
released at the Open Consultation on the Future of RTI: Challenges and
Opportunities held in New Delhi in the second week of March.

Maharashtra (41,537 cases), Uttar Pradesh
(40,248), Karnataka (29,291), Central Information Commission (23,989) and
Kerala (14,253) were the top five Information Commissions that accounted for 77
percent of the overall pendency. Pendency in Bihar, Jharkhand and Tamil Nadu
among others was not publicly known while Mizoram State Information Commission
(SIC) received and decided only one appeal case in 2016-17, said the report,
adding that SICs of Tripura, Nagaland and Meghalaya had no pendency at all. The
Central Information Commission and nine SICs (Gujarat, Haryana, Jammu &
Kashmir, Kerala, Maharashtra, Nagaland, Odisha, Uttarakhand and Uttar Pradesh)
displayed updated case pendency data on their websites.

Referring to RTI applications, the report
said that around 24.33 lakh RTI applications were filed across the Central and
14 state governments between 2015-17. The report mentioned that it was not
possible to get accurate figures in the absence of annual reports from several
Information Commissions. By a process of extrapolation it may be conservatively
estimated that up to 50 lakh RTI applications would have been submitted by
citizens during the same period, the report added.

About 24.77 lakh RTI applications were
reported in 2015 and it was based on data available for the years 2012-14
(where data was taken for the latest year for which an annual report was
available). The figure for 2015-17 appeared to be a little less but that might
be due to the absence of figures from several jurisdictions where RTI was used
more prolifically, added the report. Furthermore, around 2.14 crore RTI applications
were filed across the country since October, 2005, as per the data published in
the annual reports of Information Commissions accessible on their websites, the
report said, adding that if data was published by all Information Commissions
the figure might have touched 3 to 3.5 crores. Less than 0.5 percent of the
population seemed to have used RTI since its operationalisation, it further
added.

Despite the absence of their latest annual
reports, the Central Government (57.43 lakhs) and the state governments of
Maharashtra (54.95 lakhs) and Karnataka (20.73 lakhs million) continue to top
the list of jurisdictions receiving the most number of information requests.
Gujarat (9.86 lakhs) recorded more RTI applications than neighbouring Rajasthan
(8.55 lakhs) where the demand for an RTI law emerged from the grassroots.
Despite having much lower levels of literacy, Chhattisgarh (6.02 lakh) logged
more RTI applications than 100 percent literate Kerala (5.73 lakhs). Despite
being small states, Himachal Pradesh (4.24 lakhs), Punjab (3.60 lakhs) and
Haryana (3.32 lakhs) registered more RTI applications each than the
geographically bigger state of Odisha (2.85 lakhs). Manipur recorded the lowest
figures for RTI use at 1,425 information requests between 2005-2017. The SIC
did not publish any annual report between 2005 and 2011 and is yet to release
the report for 2016-17.

While the Central government, Andhra Pradesh
(undivided), Assam, Goa, Jammu & Kashmir, Kerala and Uttarakhand have
recorded an uninterrupted trend of increase in the number of RTI applications
received, Himachal Pradesh, Punjab, Sikkim, Nagaland and Tripura have reported
a decline in the number of RTI applications received in recent years and the
reasons for the drop in numbers, according to the report, requires urgent
probing. Arunachal Pradesh, Chhattisgarh, Haryana, Meghalaya, Gujarat, Mizoram,
Odisha and West Bengal have recorded a mixed trend where the RTI application
figures have fluctuated over the years. After seesawing in the initial years, Arunachal
Pradesh has reported a more than 82 percent decline in the number of RTI
applications received in 2015 against the peak reached in 2014. Mizoram also
showed a declining trend of 23 percent in 2016-17 after the peak scaled during
the previous year. West Bengal’s figures rose and dipped to less than 62
percent of the peak reached in 2010 but a rising trend was reported in 2015.

Referring to headless and non-existent SICs,
the report highlighted that there was no State Chief Information Commissioner
(SCIC) in Gujarat since mid-January 2018. While Maharashtra SIC was headed by
an acting SCIC since June 2017, there was no Information Commission in Andhra
Pradesh (after Telangana was carved out in June 2014). The State government had
assured the Hyderabad High Court that it would soon set up an SIC. More than 25
percent (109) of 146 posts in the Information Commissions were lying vacant.
Against 142 posts created in 2015, 111 Information Commissioners (including
Chief Information Commissioners) were working across the country. 47 percent of
the serving Chief Information Commissioners and ICs were situated in seven
states: Haryana (11), Karnataka, Punjab and Uttar Pradesh (9 each), Central
Information Commission, Maharashtra and Tamil Nadu (7 each). Six of these
Commissions were saddled with 72 percent of the pending appeals and complaints across the country.

The report further referred that 90 percent
of the Information Commissions were headed by retired civil servants and more
than 43 percent of the Information Commissioners were from civil services
background. This is the trend despite the Supreme Court’s directive in 2013 to
identify candidates in other fields of specialisation mentioned in the RTI Act
for appointment, argued the report. The report further mentioned that only 8.25
percent of the serving SCICs and ICs were women. Only 10 percent (8 out of 79)
of the Information Commissioners serving across the country were women. Three
of these women ICs were retired IAS officers while two were advocates and two
had a background in social service and education. One woman IC in Punjab had a
background in medicine.There were nine women ICs in 2015. The report said that
the websites of SICs of Madhya Pradesh and Bihar could not be detected on any
internet browser and the SICs of Madhya Pradesh and Uttar Pradesh had not
published any annual report so far. Jharkhand and Kerala SICs each had six
pending annual reports and Punjab had five while Andhra Pradesh had four
pending reports.

(Source: http://www.milligazette.com/news/16188-india-s-right-to-information-in-a-mess)

PART C INFORMATION
ON & AROUND

– Focus On
“Act Rightly” As Much As Right To Information Act, Says PM Modi

Twelve years after it was set up under the
Right To Information (RTI) Act, the Central Information Commission has a new
address — a five-storey environment friendly building in south Delhi, fitted
with information technology and video conference facilities. Earlier, the
highest appellate authority for RTI complaints used to function from two rented
accommodations.

“The greatest asset of a democracy is
an empowered citizen. Over the last 3.5 years we have created the right
environment that nurtures informed and empowered individuals,” said Prime
Minister Narendra Modi who inaugurated the new premises.

At a time when activists have accused the
government of holding back information, PM Modi said like the RTI Act, serious
attention should be paid to “Act Rightly”.

“Many times it has been seen that some
people misuse the rights given to the public for personal gains. The burden of
such wrong attempts is borne by the system”.

Activists say the government is yet to walk
the talk on transparency, and anti-corruption laws await proper implementation.

A Lokpal is yet to be appointed, four years
after the law was put in place. The chief information commissioner was
appointed by the present government after activists went to court. Of the 11
posts of information commissioner, four are vacant and four more retire this
year.

(Source:https://www.ndtv.com/india-news/focus-on-act-rightly-as-much-as-right-to-information-act-says-pm-modi-1821017)

u Ex-corporators
seek right to pursue RTI

Eight former corporators of the Thane
Municipal Corporation (TMC) have filed a criminal writ petition in the Bombay
high court seeking quashing of complaints registered against them by the Thane
police commissioner at the behest of the corporation and its commissioner. The
corporators have alleged that the complaint lodged against them was aimed at
discouraging them from seeking information under Right To Information (RTI) Act
about unauthorised and illegal construction being carried on in the municipal
limits of the corporation.

According to the petition filed by Sanjay
Ghadigaonkar and seven others, all of whom were former corporators in TMC, a
complaint was lodged against them by the Thane police as they had been seeking
information under RTI. The petition has alleged that they had been discouraged
by the corporation from seeking the information, but when it did not deter
them, the police complaints were lodged. The complaint has alleged that the
corporators were misusing the RTI Act for vested interests.

The petition also points to the fact that in
the recent session of the Vidhan Sabha, the chief minister Devendra Fadnavis
had clarified that there was no restriction on anyone from seeking information
under RTI and they cannot be prosecuted for seeking the information, but the
corporation had not heeded the same but had lodged complaints with the police
against them.

The petition while seeking an early hearing
has also prayed for restraining orders against the police from taking any
action against them as well as quashing of the complaints. The petition is
expected to come up for hearing in due course.

RTI shows Left leader’s murderer received
parole every month for 3 yrs.

A Right To Information (RTI) reply has
revealed that CPI(M) leader and murder convict P.K. Kunhanandan was given 15
days parole every month since 2015.

Kunhanandan, one of the convicts in the
murder case of slain leader T.P. Chandrasekharan, is serving a life-term for
the same.

The reply, sought by slain leader’s wife K.
K. Rema, also stated that barring two months (October and November 2017), the
convict had got parole repeatedly from 2015 to 2018.

Chandrasekharan, a local leader of CPI (M)
at Onchiyam in Kozhikode district, left the party in 2009 to form a new one,
Revolutionary Marxist Party (RMP); however, his political journey was cut
short, as he was brutally murdered on May 4, 2012, after his party won
considerable number of seats in a local body elections.

Fifteen CPI (M) workers were found guilty in
the case.

Rema is now reportedly considering legal
action against the state government.

(Source:http://www.business-standard.com/article/news-ani/kerala-rti-shows-left-leader-s-murderer-received-parole-every-month-for-3-yrs-118031900030_1.html)

– RTI being
strangled due to Maha’s neglect: Former CIC Gandhi

Former Central Information Commissioner
Shailesh Gandhi today said that the Right to Information Act was being
“strangled” due to the neglect of the state government.

Gandhi has written a letter to Chief
Minister Devendra Fadnavis asking him to fill the vacancies in the Information
Commission in the state.

“RTI is slowly being strangled in
Maharashtra by not appointing information commissioners. In Maharashtra, there
is vacancy of one Chief Information Commissioner and three commissioners. These
are not being filled despite repeated reminders,” Gandhi stated in his
letter to Fadnavis.

Gandhi said that the pendency at all the
commissions was now alarming and it was in turn killing the objective of the
Act which was transparency.

Sharing the figures of 31,474 pending cases
in four regions, Gandhi said, “Nashik region has 9,931 pending cases, Pune
has 8,647 cases, Amravati 8,026 cases and Mumbai(HQ) has 4,870 cases pending.
These cases are languishing for the want of information commissioners.”

His letter stated that it was a serious
matter and needed immediate attention and claimed that failure to do so would
allow the state to “succeed” in making the RTI Act
“redundant”.

“It will continue as a haven for
rewarding retired bureaucrats and other favourites. It will be an expense
account with no benefit to its citizens,” Gandhi wrote.

He said that Maharashtra was one of the
first states to enact the law when it came into effect in October, 2005 but the
state was now “reeling from the worst levels of pendency in years”.

(Source:http://www.business-standard.com/article/pti-stories/rti-being-strangled-due-to-maha-s-neglect-former-cic-gandhi-118031900500_1.html)

– Agents of
RTI justice, information commissions are its biggest bottleneck

A crippling staff shortage and vacancies in
crucial positions at the central and state information commissions is severely
undermining the Right to Information (RTI) Act, a study by NGOs Satark Nagrik
Sangathan (SNS) and Centre for Equity Studies (CES) has found.

According to the study, ‘Report Card on the
Performance of Information Commissions in India’, which looked at 29
information commissions, including the central information commission (CIC),
and is based on data gathered via 169 RTI pleas, the failure of the central and
state governments to proactively put out information in the public domain is
the second biggest bottleneck in the effective implementation of the Act.

The CIC and state information commissions
(SICs) are almost all functioning much below their sanctioned strength. The
CIC, for example, is four short of its sanctioned strength of 10 information
commissioners. Of these, four are set to retire this year.

Also, the Maharashtra, Nagaland and Gujarat
SICs are headless in the absence of a chief information commissioner. Kerala’s,
meanwhile, has only one information commissioner, out of a sanctioned strength
of five.

The information commissions serve the role
of watchdogs in the implementation of the RTI Act, approached by petitioners
when their pleas are either not accepted by a government agency, refused, or
elicit inadequate information.

According to the report, in 2016, the number
of appeals and complaints pending with 23 SICs stood at the “alarming figure of
1,81,852”, growing 9.5 per cent to 1,99,186 at the end of October 2017. The
Mizoram and Sikkim SICs had zero pendency as of October 2017, while information
wasn’t available for other states.

“The assessment found that several ICs were
non-functional or functioning at reduced capacity, as the posts of
commissioners, including that of the chief information commissioner, were
vacant during the period under review,” said the study, which covered the
period from January 2016 to October 2017.

According to the report, Telangana, Andhra
Pradesh and Sikkim had spells where the SICs didn’t function at all, while the
West Bengal SIC did not hear any complaints or appeals for nearly 12 months.
Not surprisingly, the date of resolution for a complaint/appeal filed with West
Bengal SIC in November 2017 was estimated at 43 years later by the NGOs (see
graphic).

Estimated time required for disposal of an
appeal/complaint filed on November 1, 2017.

In a situation of this kind, people have “no
recourse to the independent appellate mechanism prescribed under the RTI Act”,
the report pointed out.

“The transparency in public authorities
completely diminishes. They have no fear or accountability when this happens,”
said RTI activist Subhash Agrawal.

“The poorest of the poor use RTI for
information regarding basic entitlements such as ration cards. If it takes 5
years to get a response then what is the point? Justice delayed is justice
denied,” said Anjali Bhardwaj, co-convenor of the National Campaign for
People’s Right to Information and a founding member of the Satark Nagrik
Sangathan. There are outliers, of course. The SICs for Mizoram and Sikkim
disposed of appeals/complaints in less than a month.

The political side of it

State chief information commissioners, as is
the case with the central chief information commissioner, are appointed by the
government in consultation with the opposition. Agrawal said while not
appointing chiefs was often a government bid to dilute institutions, delayed
appointments resulted several times from a lack of coordination between the
chief minister and the leader of the opposition. “Mayawati and Mulayam Singh
didn’t see eye to eye, so it took a long time for the UP state commission to be
set up,” he added.

“Not having a chief (information
commissioner) is legally unsound. It is the commissioner who runs everything,
while everyone else is supposed to support him,” said Habibullah.

When the last resort crumbles:

The multitude of vacancies is a factor, of
course, but experts pointed out that it was the lack of transparency on the
part of the central and state governments that forced people to file RTI pleas
even for the most basic information.

“The government is not doing its job of suo
motu disclosure u/s. 4(1)(B) of the RTI Act, under which it has to update
information every 120 days,” said Wajahat Habibullah, the first chief
information commissioner.

Agrawal said
“more proactive disclosures by the government can cut the number of RTI pleas
filed by 70%”.

The ‘inexplicable’ overnight drop

The report pointed out how the CIC stated in
an RTI reply that the total number of appeals and complaints pending with it
stood at 28,502 as on 31 December 2016. However, according to its website, only
364 cases were pending with it on 1 January 2017, it added, terming the fall
“inexplicable”.

The returned complaints

Apart from the pendency, concerns have also
been raised about the high number of appeals and complaints returned to
petitioners, several for unspecified reasons, with many people wondering
whether this was a ploy to project lower pendency rates.

“This is extremely problematic as people,
especially the marginalised, reach the commissions after a great deal of
hardship and a long wait,” said the report.

“The number is so high that I suspect cases
were not rejected on solid grounds,” Habibullah added.

Bhardwaj said they had found instances where
cases were wrongfully returned.

She added that when the commissions returned
complaints, it “fails to perform its legal duty as a friend of the petitioner”.
“Many people are unlettered but they do have the right to information,” she
said.

The penalties, or the lack thereof

According to the RTI Act, the information
commissions can impose penalties of up to Rs 25,000 against public information
officers (PIOs) for violations of the RTI Act. However, according to the
report, penalties were rare.

The report added: “Penalties were imposed
in… only 4.1% of the cases where penalties were imposable!”

(Source:https://theprint.in/governance/agents-of-rti-justice-information-commissions-are-its-biggest-bottleneck/41229/)

– Govt
Orders Voluntary Info Disclosure Under RTI

With most of the departments and authorities
in the state yet to disclose voluntary information under Right to Information
(RTI) Act, the government on Friday directed all the concerned officials to
ensure the disclosures as per the transparency law within a week.

“With a view to maintaining conformity with
the provisions of Section 4 of J&K Right to Information Act, 2009, from
time to time, instructions have been issued, impressing upon all the
Administrative Secretaries, Heads of the Departments and Public Authorities of
the State to ensure effective implementation of the provisions of Section 4 of
the J&K RTI Act in letter and spirit by hosting all requisite information
on the official websites and updating them periodically,” reads a circular
issued by the government.

“However, it is being constantly observed
that some of departments are not implementing the provisions of Section 4 of
the Jammu & Kashmir Right to Information Act, 2009 and some of them have
yet not created their departmental websites.”

The J&K State Information Commission has
been persistently requesting for ensuring implementation of the provisions of
the J&K Right to Information Act, it said.

“Therefore all such departments as have not
so far created their own departmental websites are impressed upon to do so
within a fortnight and host the requisite material on the websites under the
provisions of Jammu & Kashmir Right to Information Act, 2009, on regular
basis. Further, all the Administrative Secretaries are enjoined upon to furnish
the status on this account to the General Administration Department as well as
State Information Commission within a week’s time positively.”

The CIC had shared details with the GAD about
the status of different departments regarding creation of websites, disclosure
u/s. 4 of the RTI Act, appointment of Public Information Officer and First
Appellate Authority.

The CIC has informed the GAD that many
departments were not disclosing the information as per the Act.

The CIC has also highlighted that the domain
name of GMC Jammu has expired on August 30 last year.

(Source:https://kashmirobserver.net/2018/local-news/govt-orders-voluntary-info-disclosure-under-rti-29164)

– Meghalaya
RTI Activist, Who Went After Cement Firms, Found Murdered

A right-to-information activist who was
working to expose alleged misuse of public funds in Meghalaya was found dead in
the northeast state, police said on Tuesday.

Poipynhun Majaw had been filing applications
under the Right to Information (RTI) Act to check alleged corruption in public
projects in Meghalaya’s Jaintia Hills Autonomous District Council.

His body was found near a bridge in
Khliehriat, the district headquarters of East Jaintia Hills, 120 kilometres
from state capital Shillong. He was also the president of Jaintia Youth
Federation.

Police said he was last seen riding a
motorcycle near the East Jaintia Hills deputy commissioner’s office on Monday
night.

“A wrench was found next to the body.
Preliminary inquest suggests the victim was hit on the head leading to his
death,” senior police officer AR Mawthoh said.

Recently, using replies he got from the
authorities under using the RTI route, he had alleged that cement firms have
been mining in the area without permission from the council.

(Source:https://www.ndtv.com/india-news/meghalaya-rti-activist-who-went-after-cement-firms-found-murdered-1826488)

– RBI: SMA details exempted from disclosure under
RTI

Contradicting its reply to an earlier right
to information (RTI) query, the Reserve Bank of India (RBI) has recently said
bank-wise information on special mention account (SMA) 1 and 2 is exempt from
disclosure u/s. 8 (1) (a) & (d) of the RTI Act. While SMA 1 refers to loans
where repayments are overdue between 31-60 days, SMA 2 loans are ones where
principal or interest is overdue between 61-90 days. Although these are
technically not non-performing assets (NPAs), but nonetheless indicate
‘incipient stress’. In April 2016, RBI had said in an RTI response that SMA 1
and 2 loans of all banks stood at Rs 6,24,119 crore at the end of December
2015, 9% higher than Rs 5,73,381 crore at the end of June 2015. It had further
said while SBI’s SMA-2 accounts stood at Rs 60,228 crore, or 5.17% of its total
advances, at PNB this exposure was approximately 6.31% of its total loan book
or Rs 24,824 crore. RBI’s executive director and appellate authority Uma
Shankar said on March 7, 2018, that there is no overriding public interest in
the disclosure of credit information. She added that section 45E of the RBI
Act, 1934, contains a specific bar against disclosure of credit information
collected by the central bank. “Though section 22 of the RTI Act, 2005, starts
with a non-obstante clause, the interpretation given to that section by CIC is
that it is not intended to override special enactments,” she said. She said SMA
data is collected by RBI solely for disseminating the information to other
banks having exposure to the accounts reported in SMA by banks.

(Source:http://www.financialexpress.com/industry/rbi-sma-details-exempted-from-disclosure-under-rti/1096387/)

RTI Clinic in April 2018: 2^nd, 3^rd,
4^th Saturday, i.e. 8^th, 15^th and 22^nd
11.00 to 13.00 at BCAS premises.

shailesh.kwebmaker

PART B: RTI Act, 2005

Real time updates for Right to Information cases via email, SMS

All this would be done within hours. At present, the process takes a few days.

(Source : Economic Times, September 05, 2016)

shailesh.kwebmaker

Part D | ETHICS, GOVERNANCE & ACCOUNTABILITY

A democracy can only be as strong as its institutions. A vibrant and effective democracy needs to be underpinned by strong institutional support. Unfortunately, there has been a serious and long-term undermining of institutions crucial for India’s governance. This includes governors, C & AG, public service commissions, Lok Ayuktas, election commissioners at the state and central levels, higher civil services, police, and regulatory bodies. Each of these institutions has been deliberately undermined and weakened over the years. (From the book, “GOOD GOVERNANCE” by Madhav Godbole, page 233)

RTI Clinic in December 2015: 2nd, 3rd, 4th Saturday, i.e. 12th, 19th, and 26th, 11.00 to 13.00 hrs. at BCAS premises.

shailesh.kwebmaker

Part C | Information On & Around

Att ack on RTI activist in Latur:

The entire episode of this attack was recorded on cell and
the video was circulated widely. When on my cell, I went
through it for nearly 40 minutes. Tears flowed from my
eyes. What inhuman activities by Shiv-Sena workers. (If
any one desires to view the video, call me on 9821096052,
I shall forward it).

A Right to Information (RTI ) activist from Latur, Mallikarjun Bhaikkatti, was brutally beaten and his face blackened allegedly by Shiv Sena activists on the premises of a college in the district in front of over 2,000 students, teachers, staff and onlookers. The activist had sought information through RTI queries, about unauthorised construction activity.

Sena youth wing president Aditya Thackeray said that those responsible for thrashing Bhaikkatti had been dismissed by the party. “Heard of the unfortunate incident in Latur. The party strongly condemns the disgraceful act. Those involved have been moved from the party,” he tweeted.

Senior member of the institution which runs the college, Shivaji Bhosle, has been arrested and the police have launched a manhunt for around 25 Sena activists.

Bhaikkatti told TOI , “A group of people with saffron scarves waiting in an SUV with a Shiv Sena emblem assaulted me. They dragged me into their car where they beat me, snatched my phone, and brought me to Shahu junior college campus. They kicked and showered blows on me while some assaulted me with belts and iron rods. They poured wangan lubricant on me.”

District Police Chief Dnyaneshwar Chavan told TOI that they have photos of the incident and are trying to zero in on the culprits based on the pictures.

RTI activist receives 32kg of ‘replies’:

An RTI activist, who was denied information by panchayat officials for his queries under the Right to Information Act, finally received 32 kilos of papers as replies after waiting for eight months.

Daniel Jesudas had requested information on the expenditure and details of work sanctioned by the executive officer of Vellalore town panchayat for a period of six months from August 2014 to February 2015.

He finally received the reply, costing the government more than Rs.11,000. As per the courier slip, courier charges alone were Rs.1,130 and the weight of the bundle was 32 kilos. “The panchayat officials told me they spent over Rs.9,000 just on photo copies,” he said.

3 RTI Activists sad story:

Three RTI activists were arrested in the last week of September on the charge of running an extortion racket targeting builders. The Mulund police said that Laxminarayan Shetty, Pankaj Chandanshive and Anil Mhaske had demanded Rs.2 lakh from a developer for not filing complaints with various government departments.
The developer, Sanjay Gharat, had planned to refurbish an old house with the help of his relative. In January, Shetty allegedly met him and sought Rs.1 lakh for not blocking the repairs by filing a complaint with the local BMC ward office.

According to the First information report (FIR), Gharat paid Rs.50,000. But a few months later, Chandanshive again approached Gharat and demanded Rs.1 lakh. The developer paid Rs.10,000.

Earlier this month, Mhaske allegedly tried to extract more money by saying that Shetty and Chandanshive were part of this group.

This time, Gharat alerted the Mulund police, who arrested the three men. Cops sought their remand for seven days, saying they wanted to find out if the trio was part of a bigger extortion ring that targeted builders. The court granted the request.

Shetty and Chandanshive have two previous criminal cases pending against them.

shailesh.kwebmaker

Part B | RTI Act, 2005

Maharashtra Chief Information Commissioner Mr. Ratnakar Gaikwad has said:

Ten years after the Act was enacted, Gaikwad said the public authorities still do not think it necessary to put out all information, though section 4 of the RTI Act requires it. On the performance of information commissioners in Maharashtra, Gaikwad said there were two aspects:

Quantitative and qualitative. “In the last decade, around 44 lakh RTI queries were received across the state and 99% disposed of. Of the 1.54 lakh queries that have gone into appeal, 1.2 lakh have been disposed of. As on September 30, around 30,000 are pending,” he said.

The state information commissioner also wants a provision to be introduced in the Act to punish those who use it for blackmail. “Such persons must be blacklisted,” he said, adding that there must be a limit on the number of RTIs a person can file before the same PIO in a month.

shailesh.kwebmaker

Part A | Decision of CIC

Whether PIO can file a Writ against order of the appellate authority – CIC:

The petitioner is the Public Information Officer, Syndicate Bank Regional Office at Mugulrajapuram, Vijayawada, under the Right to Information Act, 2005 (for short ‘the Act’).

The AP High Court held:
This court is of the opinion that the Writ Petition, filed by the Public Information Officer, is not maintainable because even though he is an employee, he is designated as Public Information Officer, who is charged with the duty of dealing with the requests of persons seeking information and render reasonable assistance to such persons. U/s. 7 of the Act, the Public Information Officer shall dispose of the requests received by him either by providing information on payment of the prescribed fee or by rejecting the request for any of the reasons specified in sections 8 and 9 of the Act. A person, who does not receive a decision within the time specified under sub-section 1 of section 7 of the Act or is aggrieved by the decision of the Central Public Information Officer or the State Public Information Officer, is entitled to file an appeal to such Officer, who is senior in rank of the Central Public Information Officer or the State Public Information Officer. A second appeal against such decision shall lie to the Central Information Commission or the State Information Commission as the case may be.

The scheme of the Act, discussed above would reveal that every Public Information Officer nominated as such under the Act has a dual role to play viz. as an officer of the Public Authority and also the Public Information Officer. While such Officer is loyal to his employer while acting in his role as the Officer, he acts as a quasijudicial authority while disposing of the request made for furnishing information. His orders are subject to further appeals. Therefore, in the opinion of this Court, the Public Information Officer cannot don the role of the Officer of the Public Authority in relation to the orders passed by the appellate authorities against the orders passed by him. If his order is reversed by the appellate authority, he cannot be treated as aggrieved party giving rise to a cause of action for him to question such Orders. It is only either the public authority, against whom the directions are given, or any other party, who feels aggrieved by such directions, that can question the orders passed by the appellate authorities. As such, the Public Information Officer, who filed this Writ Petition, is wholly incompetent to question the order of the appellate authority and the Writ Petition filed by him is not maintainable.

Even on merits, this Court has no hesitation to hold that the information sought for by respondent No. 2 does not fall within the exempted category u/s. 8 (1) (h) of the Act because that information, which respondent No. 2 has sought, relates to pending proceedings before the Debt Recovery Tribunal. However, what is exempted u/s. 8 (1) (h) is information, which would impede the process of investigation or apprehension or prosecution of respondent of offenders. It is not the pleaded case of the Bank that any investigation or apprehension or prosecution of respondent No. 2 will be impeded by furnishing information sought for by him. Even if the information relates to a pending dispute before a Court or Tribunal, that would not fall u/s. 8 (1) (h) of the Act.

For the above-mentioned reasons, the Writ Petition is dismissed.

[PIO, Syndicate Bank, Regional Office, Mugulrajapuram, Vijaywada vs. Central Information Commission: Writ Petition No. 28785 of 2011 before the Hon’ble Sri Justice C V. Nagarjuna Reddy]

shailesh.kwebmaker

Part D: Ethics & Governance & Accountability

Good Governance Day:
The government has announced that it will celebrate former Prime Minister Vajpayee’s birthday on 25th December as ‘Sushasan Diwas’ or ‘Good Governance Day’.

HRD Ministry is keen to celebrate 25th December as good governance day to mark the birthdays of A. B. Vajpayee and Madan Mohan Malaviya.

• Promise of Better Governance:
The fact that BJP regime is in power because of the promises they have made to provide better governance is a good sign for it puts pressure on the system to make a visible difference. The Modi government has embarked on an ambitious project – the attempt is to move from a mental model of governance being about dispensing resources to one that actively seeks outcomes, but this needs an ability to convert programmes into measurable and repeatable actions on the ground. This will need a dramatic overhaul of the administrative infrastructures, and its understanding of the nature of power. It might be relatively easier to ring in the big changes, but the real challenge might lie in the everyday experience of governance. Boring, predictable governance is the need of the hour but to deliver that what we need are sweeping administrative reforms. Other more glamorous reforms will be rendered meaningless without fixing the nuts and bolts of governance.

[Santosh Desai in the Times of India dated December 15]

levitra

shailesh.kwebmaker

Part A Article of CIC

Following is the article written by Shri Shailesh Gandhi – Former Central Information Commissioner, similar to what appeared in Times of India on 19.05.2015.

The RTI Act Present Status
The RTI Act has caught the imagination of people and the way it has spread is being appreciated and admired around the world. A great change has come in India in the last decade in the power equation between the sovereign citizens of the country and those in power. This change is just beginning and if we can sustain and strengthen it, our defective elective democracy could metamorphose into a truly participatory democracy within the next one or two decades. We have just begun this journey towards a meaningful Swaraj. I believe media-visual, print and social, and RTI have all been a fortunate heady mix. They have the potential of actualizing the promise of democracy. However there are also signs of regressive forces which could stymie these promises.

I am going to refer to the two biggest dangers to RTI :

1. Most established Institutions are unhappy with RTI . When the power equation changes between those with power and the ordinary citizen, resistance is to be expected.

Everyone in power generally feels transparency is good for others, whereas they should be left to work effectively. It is implied that transparency is a hindrance to good governance. We have travelled some distance away from the statement made by a seven judge bench by Supreme Court of India in S. P. Gupta vs. President of India & Ors. (AIR 1982 SC 149). “There can be little doubt that exposure to public gaze and scrutiny is one of the surest means of achieving a clean and healthy administration. It has been truly said that an open government is clean government and a powerful safeguard against political and administrative aberration and inefficiency”.

The former Prime Minister, harried by the uncovering of various scams by RTI , said at the Central Information Commission’s convention in October 2012: “There are concerns about frivolous and vexatious use of the Act in demanding information the disclosure of which cannot possibly serve any public purpose.” The present Prime Minister has taken a pre-emptive action by not appointing a Chief Information Commissioner at all to render it dysfunctional. The bureaucracy is also hardening its stand and in most cases has realised that the Commissioners are not really committed to transparency. This coupled with the long wait at the Commissions and the stinginess of the Commissions in imposing penalties is slowly making it difficult to get sensitive information which could aid citizens to expose structural shortcomings or corruption. A former Chief Justice of India said in April 2012, “The RTI Act is a good law but there has to be a limit to it.” I am amazed at the suggestion that there should be a limit to RTI . The limit has been laid down in the law by Parliament in terms of exemptions. Any interpretation beyond what is written in the law will be a violation of Citizen’s fundamental right to information.

2. A greater danger comes from the selection of Information Commissioners as a part of political patronage. Most have no predilection for transparency or work. Their orders are often biased against transparency and in many places a huge backlog is being built up as a consequence of their inability to cope. Consequently a law which seeks to ensure giving information to citizens in 30 days on pain of penalty gets stuck for over a year at the Commissions. Most of these Commissioners do not work to deliver results in a time bound manner and lose all moral authority to penalise PIOs who do not work in a time bound manner. Commissioners are slowly working less and less. In the Central Information Commission six Commissioners had disposed 22351 cases in 2011, whereas in 2014 seven Commissioners disposed only 16006 cases! Whereas civil society and media are rightly critical of the government for not appointing the balance four Commissioners, at the current rate of disposal eleven Commissioners will not dispose over 25000 cases a year. In 2014 CIC received 31000 cases and presently has a pendency of over 38000 cases. It is evident that at this languorous pace of working RTI will slowly become like the Consumer Act, mainly in existence for the Commissioners. Citizens must wake out of their slumber and focus on getting commissioners who will dispose over 6000 cases each year and give clear signals that they will not tolerate tardiness from Public Information Officers or Commissioners.

Eternal Vigilance is the price for democracy. We have a very useful tool to make our democracy meaningful and effective. It will work and grow if we struggle to ensure its health. We need to put pressure on various institutions so that they restrain from constricting our right, ensure a transparent process of selection for Commissioners and adequate disposal of cases at the Commissions. If we are lazy this right will also putrefy.

levitra

shailesh.kwebmaker

Part D: Ethics & Governance

M.J. Akbar Writes:
For BJP, the central message of 2014 has two principle elements: a credible promise to lift India’s economy out of the doldrums of paralysis; and the assurance that t will be an inclusive force that reaches out to all segments of the nation. This is the necessary evolution from popularity to governance. Popularity is possible from negative factors, like rage against an existing establishment; but governance is fashioned by a positive agenda. You are elected by most of the people; you rule for all the people.

Governance now comes with an adjective: stable. Non- BJP fronts have collapsed before construction. And when stand-alone Arvind Kejriwal threatens to send journalists to jail, and denies his remarks despite video evidence, then he has lost composure because he is losing support.

levitra

shailesh.kwebmaker

Part A Orders of the Supreme & CIC

Sections 2 (f) and 6 of the RTI Act:

Petitioner
filed an application u/s. 6 of the RTI Act before the Administrative
Officer-cum-Assistant State Public Information Officer (respondent no.1)
seeking information to the queries mentioned therein. The said
application was rejected by the PIO. An appeal against the said order
was dismissed by the First Appellate Authority. Second Appeal against
the said order was also dismissed by the Andhra Pradesh State
Information Commission vide order dated 20-11-2007. The petitioner
challenged the said order before the High Court. The Writ Petition had
been dismissed by the High Court on the grounds that the information
sought by the petitioner cannot be asked for under the RT I Act. Thus,
the application was not maintainable. More so, the judicial officers are
protected by the Judicial Officers’ Protection Act, 1850 (hereinafter
called the “Act 1850”). Hence, this petition.

Mr. V. Kanagaraj
learned Senior Counsel appearing for the petitioner has submitted that
right to information is a fundamental right of every citizen. The RT I
Act does not provide for any special protection to udges. The petitioner
has the right to know the reasons as to how Respondent no. 4 (the
Appellate Court) has decided his appeal in a particular manner.
Therefore, the application filed by the petitioner was maintainable.
Rejection of the application by Respondent no. 1 and Appellate
Authorities rendered the petitioner remediless. Petitioner vide
application dated 15-11-2006 had asked as under what circumstances
Respondent no. 4 ignored the written arguments and additional written
arguments, as the ignorance of the same was tantamount to judicial
dishonesty.

It was noted that the petitioner has not challenged
the order passed by Respondent no. 4. Instead, he had filed the
application u/s. 6 of RT I Act to know why and for what reasons
Respondent no. 4 had come to a particular conclusion which was against
the petitioner. The nature of the questions posed in the application
were to the effect why and for what reason Respondent no. 4 omitted to
examine certain documents and why he came to such a conclusion.

The
definition of ‘information’ u/s. 2(f) of the RTI Act shows that an
applicant u/s. 6 of the RT I Act can get any information which is
already in existence and accessible to the public authority under law.
Of course, under the RT I Act an 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.
A judge speaks through his judgments or orders passed by him. If any
party feels aggrieved by the order/judgment passed by a judge, the
remedy available to such a party is either to challenge the same by way
of appeal or by revision or any other legally permissible mode. No
litigant can be allowed to seek information as to why and for what
reasons the judge had come to a particular decision or conclusion. A
judge is not bound to explain later on for what reasons he had come to
such a conclusion.

Moreover, in the instant case, the petitioner
submitted his application u/s. 6 of the RT I Act before the
Administrative Officer-cum-Assistant State Public Information Officer
seeking information in respect of the questions raised in his
application. However, the Public Information officer is not suppose to
have any material which is not before him; or any information he could
have obtained under the law. Under section 6 of RT I Act, an applicant
is entitled to get only such information which can be accessed by the
“public authority” under any other law for the time being in force. The
answers sought by the petitioner in the application could not have been
with the public authority nor could he have had access to this
information and Respondent no. 4 was not obliged to give any reasons as
to why he had taken such a decision in the matter which was before him. A
judge cannot be expected to give reasons other than those that have
been enumerated in the judgment or order. The application filed by the
petitioner before public authority is per se illegal and unwarranted. A
judicial officer is entitled to get protection and the object of the
same is not to protect malicious or corrupt judges, but to protect the
public from the dangers to which the administration of justice would be
exposed if the concerned judicial officers were subject to inquiry as to
malice, or to litigation with those whom their decisions might offend.
If anything is done contrary to this, it would certainly affect the
independence of the judiciary. A judge should be free to make
independent decisions.

The Supreme Court held that as the
petitioner has misused the provisions of the RT I Act, the High Court
had rightly dismissed the writ petition.

[Khanapuram Gandaiah vs. Administrative Officer & Ors: SLP (civil) No. 34868 of 2009.]

Section 8 (1) (j)
Vide RT I dated 17-05-2012 the appellant had sought information on 7 points.

PIO vide letter dated 12-06-2012 denied information stating that the same is exempt u/s. 8 (1) (e) (g) and (j) of the RT I Act.

First
Appellate Authority (FAA) vide order dated 06- 08-2012 provided Place
of birth as per service records sought at query no. 4 and other details
as sought at query no 5 and 6.

Remaining information was denied stating that the same is personal information and exempted u/s. 8 (1) (j) of the RT I Act.

Aggrieved
with the decision of FAA, the appellant filed second appeal to Central
Information Commission on 21-08-2012 citing that Shri Ajit Kumar has
submitted fake caste certificate for seeking appointment.

CIC
vide order dated 27-12-2012 dismissed the appeal stating that personal
Information can be disclosed only in the larger public interest and
appellant has not established any such interest.

The appellant
filed Writ Petition No. W P 080 of 2013 in the High Court of Calcutta
(Circuit Bench at Port Blair). The Honorable High Court remitted the
matter to CIC with directions to decide the appeal afresh.

To
decide the matter under the application, the Chief Information
Commissioner constituted a 3 member bench of following Commissioners A)
Shri Rajiv Mathur B) Shri Basant Seth C ) Smt Manjula Prasher.

The
appellant submitted that Shri Ajit Kumar (third party) has obtained
appointment under reserve category by submitting false caste
certificate. On being asked by the Commission as to the evidence he has
to prove the same, he replied that he has information from official
sources.

Shri Ajit Kumar, the third party, submitted that he is
recruited under general category and had not submitted any caste
certificate to his employer. He also submitted that the appellant had
been harassing him and none of his personal information should not be
provided to him.

The CPIO submitted that Shri Ajit Kumar is
appointed under general category and no caste certificate has been
submitted by him. A notice was sent to Shri R. Ajit Kumar under
provisions of section 11(1) of RT I Act. In his response he objected to
furnishing any personal information related to him and also stated that
there is threat to him. PIO also stated that the appellant is habitual
information seeker and filed RTIs against many employees and
blackmailing them.

Ms. Tamali Biswas, advocate on behalf of
public authority, stated that the fact of employment of Shri R. Ajit
Kumar under unreserved category and non-availability of caste
certificate was brought to the notice of Hon’ble High Court also.

The appellant has submitted that decision may be taken on the basis of documents/records and justice be delivered in true spirit as per orders of the Hon’ble High Court of Calcutta (Circuit Bench At Port Blair).

Shri R. Ajit Kumar submitted that his appointment was under Unreserved Category and the appellant is seeking information to harass him .The appellant has a criminal background and is involved in a forgery case and the issue is sub judice. He has requested that his personal information should not be provided to the appellant.

The public authority has submitted that the appellant is a retired employee of their yard and was involved in two criminal cases for forgery. He is misusing the RTI Act against NSRY and its employees. Shri Ajit Kumar was appointed under Unreserved Category and copy of recruitment letter is enclosed with the submissions. A notice was sent to third party by them who responded stating that it is an unwarranted invasion of privacy and perpetuation of biased campaign of maligning his professional image as well as disturbing the personal peace and also seems to be an act of personal vendetta.

DECISION
• “The Commission observes that Shri R. Ajit Kumar has been appointed under unreserved category, hence the plea of getting employment by submitting forged caste certificate does not have any merit and the contention that disclosure sought is in public interest fails”.

• “In Stroud’s Judicial Dictionary, Volume 4 (IV Edition),‘Public Interest’ is defined as: “ a matter of public or general interest does not mean that which is interesting as gratifying curiosity or love of information or amusement but that in which a class of community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected.”

• “The appellant has made mere conjectures and surmises and not able to give any cogent and sound evidence to prove the element of ‘Public Interest.’

• Commission quoted the Hon’ble Supreme Court in its decision dated 13-12-2012 in the case of Bihar Public Service Commission vs. Saiyed Hussain Abbas Rizwi & Anr:

23. The expression ‘public interest’ has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act.

The expression ‘public interest’ must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression ‘public interest’, like ‘public purpose’, is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs. [State of Bihar vs. Kameshwar Singh (AIR 1952 SC 252)]. It also means the general welfare of the public that warrants recommendation and protection; something in which the public as a whole has a stake [Black’s Law Dictionary (Eighth Edition)].

24. The satisfaction has to be arrived at by the authorities objectively and the consequences of such disclosure have to be weighed with regard to circumstances of a given case. The decision has to be based on objective satisfaction recorded for ensuring that larger public interest outweighs unwarranted invasion of privacy or other factors stated in the provision.

Certain matters, particularly in relation to appointment, are required to be dealt with great confidentiality. The information may come to knowledge of the authority as a result of disclosure by others who give that information in confidence and with complete faith, integrity and fidelity. Secrecy of such information shall be maintained, thus, bringing it within the ambit of fiduciary capacity. Similarly, there may be cases where the disclosure has no relation- ship to any public activity or interest or it may even cause unwarranted invasion of privacy of the individual. All these protections have to be given their due implementation as they spring from statutory exemptions. It is not a decision simpliciter between private interest and public interest. It is a matter where a constitutional protection is available to a person with regard to the right to privacy. Thus, the public interest has to be construed while keeping in mind the balance factor between right to privacy and right to information with the purpose sought to be achieved and the purpose that would be served in the larger public interest, particularly when both these rights emerge from the constitutional values under the Constitution of India.”

• The Hon’ble High Court of Delhi in its judgement dated 05-02-2014 (Shail Sahni vs. Sanjeev Kumar & Others ) have observed:

“… This Court is 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 beneficial Statute, when made a tool for mischief and abuse must be checked in accordance with law…”

• Keeping in view above, the Commission held that the information sought by the appellant is personal information of Shri R Ajit Kumar and protected from disclosure U/S 8 (1) (j) of RTI Act as no larger public interest is established.

[Ch. Rama Krishna Rao vs. Naval Ship Yard, Port Blair, (Third Party: Shri R. Ajit Kumar) Decided by the full bench on 05-05-2014. File No. CIC/LS/A/2012/002430/RM.]

shailesh.kwebmaker

Section 8(1) (j) – Personal Information:

A Few Facts of the case
The petitioner, Kashinath Shetye, was working as a junior engineer in the Electricity Department. The respondent no. 4, Dinsh Vaghela, applied to the Public Information Officer to supply information in respect of the petitioner on the following Electricity Department counts:

The information was in regard to the number of days of paid, unpaid sick, earned and casual leaves enjoyed by the petitioner.

The Public Information Officer gave notice to the petitioner to show cause as to why the information sought should not be supplied. The petitioner filed reply contending that the information being personal, should not be supplied and demanding or supplying of such information, would be an invasion of his privacy. The Public Information Officer i.e., the Superintendent Engineer, refused to supply the information on the ground that the department is exempted from supplying the information as it falls under clause (j) of section 8(1) of Right to Information Act. The respondent preferred appeal before the Chief Engineer, who dismissed the appeal. The appeal was preferred by him before the Goa Information Commissioner, which allowed the appeal and set aside the orders of the authorities below and directed that the information be supplied as sought. Hence, the petitioner has come up in writ petition.

The learned Counsel for the petitioner submitted that the order is bad in law on two counts. (i) The information sought, is personal information and (ii) it invades the right of privacy and no larger public interest is involved.

The court noted:
The first thing that needs to be taken into consideration is that the petitioner is a public servant. When one becomes a public servant, every member of public gets a right to know about his working, his honesty, integrity and devotion to duty. In fact, nothing remains personal while as far as the discharging of duty. A public servant continues to be a public servant for all 24 hours. Therefore, any conduct /misconduct of a public servant even in private, ceases to be private. When, therefore, a member of a public, demands an information as to how many days leave were availed of by the public servant, such information though personal, has to be supplied and there is no question of privacy at all. Such supply of information, at the most, may disclose how sincere or insincere the public servant is in discharge of his duty and the public has a right to know.

“The next question is whether the applicant should be supplied the copies of the application at all. It was contended that the copies of the application should not be supplied for, they may contain the nature of the ailment and the applicant has no right to know about the ailment of the petitioner or his family. To my mind, what cannot be supplied is a medical record maintained by the family physician or a private hospital. To that extent, it is his right of privacy, it certainly, cannot be invaded. The application for leave is not a medical record at all. It, at the most, may contain ground on which leave was sought. It was contended that u/s. 8(1) (j), the information cannot be supplied. In this regard, it would be necessary to read proviso to that section. If the proviso is read, it is obvious that every citizen is entitled to have that information which the Parliament can have. It is not shown to me as to why the information as is sought, cannot be supplied to the Parliament. In fact, the Parliament has a right to know the ground for which a public servant has taken leave since his salary is paid from the public exchequer.”

In the circumstances, the court ruled that it does not find that the Information Commission committed any error in directing such information to be supplied. According to the court there was no substance in the writ petition, petition was dismissed.

[The High Court of Bombay at Goa: Writ petition No. 1 of 2009]

levitra

shailesh.kwebmaker

PART D: GOOD GOVERNANCE

Quote from Shashi Tharoor, Minister of State for Human Resources Development:

“The RTI ACT has changed Governance in the country, yet UPA is given no credit for it.”

Quote From Arindam Chaudhari:

“Good governance is Narendra Modi’s promise. Good governance is surety not about pointing fingers randomly at others! It is about walking the talk. And here is a man who has walked the talk for 12 years and more, and shown how to win hearts and make a progressive State with good governance.”

levitra

shailesh.kwebmaker

PART A: ORDERS OF CIC

Section 8(1) (j) of the RTI Act 2005:

Information sought-

The certified true copies of the original application filed by Mr. Pradeep Kumar (Director Postal Services, Mumbai Region) at the time of seeking a job at the Department of Post along with all the necessary documents attached to the original application. The information sought was from the date of appointment till date.

Decision notice-
It is fairly obvious that the information which the appellant has sought after in respect of the officer (viz. the application/documents on the basis of which he has been appointed) is in the nature of ‘personal information about third party.’ The employee might have filed these documents before the appointing authority for the purpose of seeking employment, but that is no reason enough for this information to be brought into the public domain to which anybody could have access.

It is also seen that the Hon’ble Supreme Court in its decision dated 13-12-2012 [Civil Appeal No. 9052 of 2012, Bihar Public Service Commission vs. Saiyad Hussain Abbas Rizvi & Anrs, [RTIT IV (2012) 307 (SC)]] has, inter alia, held as under:

“Certain matters, particularly in relation to appointment are required to be dealt with great confidentiality. The information may come to knowledge of the authority as a result of disclosure by others who give that information in confidence and with complete faith, integrity and fidelity. Secrecy of such information shall be maintained, thus, bringing it within the ambit of fiduciary capacity”.

“The appellant has not established any public purpose which the disclosure of this information would serve. Hence, we concur with the submissions of the CPIO that the information is exempt.”

[Pradeep Ambadas Ingole vs. CPIO & Director Postal Services, Mumbai Region, decided on 26-12-2013: RTIR I (2014) 42 (CIC)]

Section 2(f)of the RTI Act,2005 “Information”:

1. Appellant submitted RTI application dated 8th November, 2012 before the CPIO, Govt., Medical College & Hospital, Sector 32, Chandigarh; seeking information relating to break up of the class IV staff (Ward Staff) with each officer and each branch of the GMCH-32 through multiple points.

2. Vide CPIO Order dated 7th December, 2012, CPIO denied the requisite information on the ground that the requisite information is not covered u/s. 2 (f) of the RTI Act, 2005 which provides the definition of information. However, he wrote that the Applicant may get the requisite documents after inspecting the record on any working day.

Decision Notice:
“Both parties have been heard. Commission observes that the CPIO has not applied his mind while disposing the RTI application and in no way it can be construed that the information sought by the appellant is not covered under the definition of information given u/s. 2(f) of the Act. Simultaneously, CPIO has also stated that the appellant can inspect the requisite documents holding the information. Both these statements are contradictory and reflect the intention of the CPIO to avoid providing the requested information to the appellant. At the hearing also, Commission observed the reluctance of the CPIO in imparting the information which is held on record and is squarely disclosable as per the provisions of the Act. Now, CPIO is directed to provide points-wise information to the appellant within two weeks of receipt of order. Through this order, ‘Show Cause Notice’ is issued to the CPIO for attempting to obstruct the disclosure of the requested information. Date for personal hearing will be provided to him through separate notice.”

[Harmeet singh vs. Government Medical College & Hospital, UT Chandigarh: Decided on 11-12-2013: RTIR I (2014) 47(CIC)]

levitra

shailesh.kwebmaker

PART A: order of CIC

• Central Information Commissioner, Mr. Rajiv Mathur who is in charge of appeals related to direct-tax matters has passed 8 Orders on 13-12-2013. 2 of these are summarised below:

Section 8(1) (j) of the RTI Act:

Vide an application dated 28-01-2013, the appellant had sought information on 6 points relating to Ramkumar Jalan Public Charitable Trust which included documents submitted for obtaining PAN, names of all Trustees, details of registered office address, details of Wealth Tax returns filed, TDS certificate issued and short term/long term capital gains.

Appellant observed that he was a tenant in a property which is owned by the Trust and he along with several other tenants were directly affected by the re-development work undertaken by the Trust and as such they cannot be held to be third parties.

Decision:
The Hon’ble Supreme Court in the case of Girish Ramchandra Deshpande has held that Income Tax Returns and related documents are personal information and exempt from disclosure u/s. 8(1) (j) of the RTI Act unless larger public interest is shown. In the instant case, the appellant has not been able to show any larger public interest. Accordingly, the denial of information u/s. 8(1) (j) is upheld.

[Shri Amit Shah, Mumbai vs. ITO (exam)-1 and CIT, Kolkata: CIC/RM/A/2013/000926: Order dated 13.12.2013]

• Information on TEP:

Vide an application dated 16-o2-13, appellant had sought information on 9 points relating to Tax Evasion Petition (TEP) filed by him stating that he was a victim of a false dowry case wherein his wife has alleged that her mother had paid over Rs. 30 lakh as dowry.

CPIO vide letter date 22-02-2013, informed the appellant that the complaint filed by the appellant was being enquired into.

An appeal was filed on 28-03-13 as no information was received.

AA vide order date 28-04-13 directed the CPIO to furnish information to the appellant and disposed of the appeal.

CPIO submitted that investigation into the TEP is still going on and is likely to be completed by December 2013.

Decision
It has been the consistent stand of the Commission that some sort of a feedback should be provided to the information provider once investigation into a tax evasion complaint has been finalised. The complainant has a right to know whether the information provided by him has been found to be false or true. We accordingly direct the CPIO to disclose the broad outcome of the TEP to the appellant once the enquiry is over. Details of investigation are, however, not required to be disclosed.

[Shri S. Z. Ahmed, Hyderabad vs. Income Tax Office ward 16 and Add1.CIT, Range 6, Hyderabad: Order No.CIC/RM/A/2013/000923 dated 13-12-2013]

• RTI application: Section 25(5) of the RTI Act

Decision of full Bench (3 members) of the Central Information Commission decision in connection with payment of fees for RTI application and other fees. Hereunder are reproduced paragraphs 11 & 12 of the Order. 1

1. It needs to be underlined that preamble of the RTI Act provides for setting out the practical regime of right to information for the citizenry in order to promote transparency and accountability in the working of every public authority. These words connote a pragmatic approach on the part of all concerned in implementing the provisions of this law. The Commission is aware that difficulties are being experienced by the information seekers in depositing the fee and copying charges and consequential delay in the provision of information. On a consideration of the matter, the Commission makes the following recommendations to the Ministries/Departments/Public Authorities of the Central Government u/s. 25 (5) of the RTI Act

(i) All public authorities shall direct the officers under their command to accept demand drafts or banker cheques or Indian Postal Order (IPO) payable to their Accounts Officers of the public authority. This is in line with clause (b) of Rule 6 of the RTI Rules, 2012. In other words, no instrument shall be returned by any officer of the public authority on the ground that it has not been drawn in the name of a particular officer. So long as the instrument has been drawn in favour of the Accounts Officer, it shall be accepted in all circumstances.

(ii) All public authorities are required to direct the concerned officers to accept IPOs of the denomination of higher values vis-à-vis the fee/copying charges when the senders do not ask for refund of the excess amount. To illustrate, if fee of Rs. 18/- is payable by the information seeker and if he sends IPO of Rs. 20/-, this should be accepted by the concerned officer rather than returning the same, for practical reasons. The entire amount will be treated as RTI fee.

(iii) All public authorities shall direct the CPIOs and ACPIOs under their command to accept application fee and copying charges in cash from the information seekers in line with Rule 6(a) of the RTI Rules. It is made clear that the CPIOs and APIOs will not direct the information seekers to deposit the fee with the officers located in other buildings/offices.

(iv) DoPT shall direct all the CPIOs/APIOs/Accounts Officers to accept money orders towards the deposition of fee / copying charges. This is in line with the order dated 19-09-2007 passed by the Karnataka Information Commission in B.V. Gautma vs. Dy. Commissioner of Stamps & Registration, Bangalore. (KIC 2038 CoM 2007).

(v) The Department of Posts has issued a detailed Circular No. 1031/2007-RTI dated 12-10-2007 for streamlining the procedure of handling applications by various CAPIOs which, interalia contains the following directions:-

“(1) Display of the signboard “RTI APPLICATIONS ARE ACCEPTED HERE” should be made on the notice board/prominent place in the post office. In addition, the names/ addresses of the CPIO and appropriate authorities of the Post office should also be displayed.

(9) The fee alongwith application should be accepted at the same counter and in no case the applicant should be made to visit another counter for depositing the requisite fee.”

The Department of Posts is required to ensure that the above directions are complied with by all concerned.

(vi) As noted herein above, as of now, the RTI applications and the requisite fee are being accepted by the designated Post Offices, numbering above 4700. Considering the size of the country and the number of RTI applicants/applications, the number of designated Post Offices appears to be too small. It has been brought to the notice of the Commission that there are

(vii) 25,464 Departmental Post Offices and 1,29,402 Extra Departmental Branch Post Offices. The Commission, therefore, advises the Secretary, Department of Posts, to consider designating all 25,464 Departmental Post Offices to accept RTI applications and the requisite fee.

(viii) The best solution to the fee related problems appears to be to issue RTI stamps of the denomination of Rs. 10/- by the Deptt. of Posts. It would save time and cost. The Commission would urge Department of Posts/DoPT to consider the viability of this suggestion with utmost dispatch.

(ix) The Commission also directs the CPIOs and the Appellate Authorities to mention their names, designations and telephone and fax numbers in the RTI related correspondence.

12. The Commission expects all Ministries/Departments/ Public Authorities of the Central Government to give urgent consideration to the above recommendations.

(Shri Subhash Chandra Agrawal vs. Ministry of Home Affairs. Complaint No CIC/BS/C/2013/000149/ LS, 000072/LS & 000108/LS: decided on 27-08-2013)

levitra

shailesh.kwebmaker

PART A: orders of the court & CIC

Section 8(1) (e), (g) & (j) of the RTI Act:

There were four writ petitions before the court.

In these petitions, the issue involved was whether the copies of office notings recorded on the file of Union Public Service Commission (UPSC) and the correspondence exchanged between UPSC and the Department seeking its advice can be accessed in the RTI Act or not by the person to whom such advice relates.

When one G.S. Sandhu sought information from UPSC to furnish him in respect of departmental proceedings against him, information sought was denied by PIO & FAA. However the Central Information Commission directed the UPSC to disclose the nothings relating to the matter in hand to the respondent, with liberty to the petitioner-UPSC to obliterate the name and designation of the officer who made the said notings.

Before the H.C.of Delhi, UPSC assailed the Commission on four different grounds as under:

(I)There is a fiduciary relationship between UPSC and the department which seeks its advice and the information provided by the Department is held by UPSC in trust for it. The said information, therefore, is exempted from disclosure u/s. 8(1) (e) of the Act, (ii) the file notings and the correspondences exchanged between UPSC and the department seeking its advice may contain information relating not only to the information seeker but also to other persons and departments and institutions, which, being personal information, is exempt from disclosure u/s. 8(1) (j) of the Act, (iii) the officers who record the notings on the file of UPSC are mainly drawn on deputation from various departments. If their identity is disclosed, they may be subjected to violence, intimidation and harassment by the persons against whom an adverse note is recorded and if the said officer of UPSC, on repatriation to his parent department, happens to be posted under the person against whom an adverse noting was recorded by him, such an officer may be targeted and harassed by the person against whom the note was recorded. Such an information, therefore, is exempt from disclosure u/s. 8(1) (g) of the Act and (iv) the notings recorded by UPSC officer on the file are only inputs given to the Commission to enable it to render an appropriate advice to the concerned department and are not binding upon the Commission. Therefore, such information is not really necessary for the employee who is facing departmental inquiry, since he is concerned only with the advice ultimately rendered by UPSC to his department and not the noting meant for consideration of the Commission.

After detailed discussion & analysis of two Supreme Court decisions in (i) Central Board of Secondary Education and Another vs. Aditya Bandopadhyay & Ors. (ii) Bihar Public Service Commission vs. Saiyed Hessian Abbas Rizvi & Another, the High Court of Delhi issued the following directions:

(i) The copies of office notings recorded in the file of UPSC as well as the copies of the correspondence exchanged between UPSC and the Department by which its advice was sought, to the extent it was sought, shall be provided to the respondent after removing from the notings and correspondence, (a) the date of the noting and the letter, as the case may be; (b) the name and designation of the person recording the noting and writing the letter and; (c) any other indication in the noting and/or correspondence which may reveal or tend to reveal the identity of author of the noting/letter, as the case may be;

(II) If the notings and /or correspondence referred in (i) above contains personal information relating to a third party, such information will be excluded while providing the information sought by the respondent;

[Union Public Service Commission vs. G.S. Sandhu & Ors: Decided on 10.10.2013; RTIR IV (2013)216 (Delhi)]

Section 6 (1) of the RTI Act, 2005:

K.K. Mishra, the appellant through his RTI application dated 16.01.2012 sought certified copies in respect of M/s. Nandi Infrastructure Corridor Enterprises Ltd., Bangalore showing composition of Board of Directors and Members/Shareholders of the Company as filed by the Company from time to time with ROC, Karnataka Bangalore from 1.1.2000 onwards.

The CPIO responded by citing one earlier decision of the Commission wherein it was held as under:

“The Registrar of Companies has already put in place system for disclosure of information including the procedure for payment of cost for providing the information. There is no denial of information to the applicant. There is, therefore, no reason why the procedure of the Registrar of Companies in respect of disclosure of information should not be adhered to and followed. As the working of the Office of Registrar of Companies is transparent in so far as public activities are concerned, there is no justification for invoking the cost and fee rules as prescribed under the RTI Act. In case, however, there is any hindrance in providing access to the documents which are expected to be in the public domain, the provisions of the RTI Act could be invoked. In view of this, there is no justification for not respecting the fee and cost rules of the Registrar of Companies as per the relevant provisions under Section 610 of the Companies Act”.

Before the Commission, the appellant stated that for getting the information, he has to first register himself before he can access the information and thereafter pay Rs. 50/- for viewing the information for three hours. Whereas, under RTI Rules, the inspection of documents is free for first hour and thereafter the charges are Rs. 5/- for every 15 minutes. The appellant states that he paid Rs. 50/- through internet banking, but thereafter there were no instructions on the website as to how to access the information on net, the fee payable is Rs. 25/- per page as against Rs. 2/- per page prescribed under RTI Rules. The appellant contested that it would not be appropriate for the CIC to allow ROC to charge such exorbitant rates for information which is in direct conflict with the provisions of the RTI Act and rules. The appellant stated during that hearing that in the above said order specifically mentioned that in case of hindrance in providing access to the documents, the provisions of the RTI Act could be invoked. The respondent CPIO on the other hand stated that in case the appellant is not able to access the information from the website of the ROC, he can approach the help Desk which is placed In their Office to assist the people to access information on the website.

The Commission then quoted from one order of the High Court of Delhi (in the matter of Registrar of Companies & Ors. vs. Dharmendra Kumar Garg & Another) as under:

34. “The mere prescription of a higher charge in the other statutory mechanism (in this case section 610 of the Companies Act), than that prescribed under the RTI Act does not make any difference whatsoever. The right available to any person to seek inspection/copies of documents under sec-tion 610 of the Companies Act is governed by the Companies (Central Government) General Rules & Forms, 1956, which are statutory rules and prescribe the fees for inspection of documents etc. in Rule 21A. The said rules being statutory in nature and specific in their application do not get overridden by the rules framed under the RTI Act with regard to prescription of fee for supply of information, which is general in nature, and apply to all kinds of applications made under the RTI Act to seek information. It would also be complete waste of funds to require the creation and maintenance of two parallel machineries by the ROC – one u/s. 610 of the Companies Act, and the other under the RTI Act to provide the same information to an applicant. It would lead to unnecessary and avoidable duplication of work and consequent expenditure.”

35. “The right to information is required to be balanced with the need to optimize use of limited fiscal resources. In this context I may refer to the relevant extract of preamble to the RTI Act which, inter alia, provides……………………………………………..”

41. “Firstly, I may notice that I do not find anything inconsistent between the schemes provided u/s. 610 of the Companies Act and the provisions of the RTI Act. Merely because a different charge is collected for providing information under Section 610 of the Companies Act than that prescribed as the fee for providing information under the RTI Act does not lead to an inconsistency in the pro-visions of these two enactments. Even otherwise, the provisions of the RTI Act would not override the provision contained in Section 610 of the Com-panies Act. Section 610 of the Companies Act is an earlier piece of legislation. The said provision was introduced in the Companies Act, 1956 at the time of its enactment in the year 1956 itself. On the other hand, the RTI Act is a much later enactment, enacted in the year 2005. The RTI Act is a general law/enactment which deals with the right of a citizen to access information available with a public authority, subject to the conditions and limitation prescribed in the said Act. On the other hand Section 610 of the Companies Act is a piece of special legislation, which deals specifically with the right of any person to inspect and obtain records i.e. information from the ROC. Therefore, the later general law cannot be read or understood to have abrogated the earlier special law.”

In view of above Order, the Commission found no reason to disagree with the reply of office of the Register of companies, Karnataka, Bangalore

[K.K. Mishra vs. office of the ROC, Karnataka, Ban-galore decided on 20.09.2013 in CIC/SS/A/2012/2005: RTIR IV (2013)181(CIC)]

Section 6 of the RTI Act, 2005

In a short order of CIC, it is decided that paying application fees through money order is as good as paying cash and hence the RTI application cannot be rejected on the ground that mode of paying fees is not as per rules. Also in the Order, the Commission referred to the full bench decision reported in BCAJ of January 2014.

In the light of above the Commission decided that the CPIO should have accepted the RTI application and dealt with the same as per the provisions of the RTI Act

[S. Viswanatha Rao vs. Department of Posts, Secunderabad: decided on 27.09.2013: CIC/ BS/C/2012/000279/3569: RTIR IV (2013) 163 (CIC)]

”

shailesh.kwebmaker

PART D: RTI & SUCCESS STORIES

Mr. Rohit Mehta

I am very grateful to the BCAS RTI Clinic for providing me the correct advice as regards the manner in which the RTI application/appeal is to be filed. Based on the advice provided I had filed the requisite applications/ appeals with the relevant authorities.

I am a co-owner of a building of which the ground floor was let out to tenants. The said tenants had carried out unauthorised and illegal construction without our permission. Various complaints were filed with the concerned authorities but there was no response. As suggested by one of my colleagues I visited the RTI Clinic operated by your esteemed society at New Marine Lines. I discussed the problem with Mr. A. K. Asher who advised me to file applications under the RTI Act with the various BMC Wards, the manner in which I should go and collect general information in respect of rules and regulations pertaining to construction of loft/mezzanine floor, etc. He also advised me that under the RTI Act it is possible for a citizen to make inspection of files and demand copies of inspection reports. Accordingly I applied for copies of inspection reports and other documents.

Being aggrieved by the incomplete and evasive replies given by the PIOs, first appeals were filed after due consultation. I was directed to take up the matter with the Building & Factory Departments, ‘D’ Ward office. Finally the Assistant Engineer (B & F) ‘D’ ward directed the tenant to restore the unauthorised work i.e., convert the mezzanine floor to loft within seven days from the date of the said letter. Further, a showcause notice u/s. 351 of the Mumbai Municipal Corporation Act has been issued to the tenant as to why the unauthorised work should not be pulled down.

I would like to sincerely thank BCAS-RTI Clinic and Mr. A. K. Asher for providing me all the assistance and support in relation to the above matter.

levitra

shailesh.kwebmaker

PART B:

RTI
Logo

The Central Government has designed RTI Logo and has released it on DoPT web and other sites.

CBI is exempted from RTI

An unfortunate news came in the second week of June that the Central Government has notified u/s.24 read with the Second Schedule that the RTI Act shall not apply to Central Bureau of Investigation (CBI). S/s. (2) of section 24 permits the Central Government to amend the Second Schedule and it is now amended to include CBI. The Notification is reproduced hereunder:

It is learnt that the Madras High Court has issued notice to the Government of India on exempting CBI. Many in the country are of the opinion that CBI cannot be classified as it does not deal either with ‘intelligence’ or ‘security’ issues, the only two conditions that can make a government department exempt under RTI.

levitra

shailesh.kwebmaker

PART A: ORDERS OF CIC & THE HIGH COURT

Personal Information and larger Public interest: Sections 8(1)(j) and 8(2) of the RTI Act:

• Vide RTI dated 31-08-12, Anil Bairwal had sought certain Information claiming copies of Income tax Returns with other documents of Biju Janata Dal for A.Y. 2002-03 to 2011-12.

CPIO/ITO Ward 1(2), Bhubaneswar, vide letter dated 12-09-12, informed the appellant that the information sought related to a third party, their views were sought and the third party had objected to any information being shared. It was pointed out by the party representative that since they do not receive any grant from the government directly or indirectly, u/s. 2(h) of the RTI Act, it is not a “Public Authority” and information regarding the party should not be supplied.

FAA upheld the decision of CPIO and relied on the order of the Hon’ble Supreme Court in the case of Girish Ramchandra Deshpande, [RTIR IV (2012) 216 (SC)], stating that no larger Public Interest is involved. Para of the said decision reads as under:

“14.The details disclosed by a person in his Income Tax Return are ‘personal information’ which stand exempted from disclosure under Clause (j) of section 8(1) of the RTI Act, unless it involves a larger public interest……………………………………”

CIC quoted Paras 38 & 47 of its earlier order of 29-4-2008 wherein Biju Janata Dal was also a party. Same reads as under:

“38.The laws of the land do not make it mandatory for political parties to disclose the sources of their funding, and even less so the manner of expending those funds. In the absence of such laws, the only way a citizen can gain access to the details of funding of political parties is through their Income-tax Returns filed annually with Income-tax authorities. This is about the closest the political parties get to accounting for the sources and the extent of their funding and their expenditure. There is unmistakable public interest in knowing these funding details which would enable the citizen to make an informed choice about the political parties to vote for. The RTI Act emphasises that “democracy requires an informed citizenry” and that transparency of information is vital to flawless functioning of constitutional democracy. It is nobody’s case that, while all organs of the State must exhibit maximum transparency, no such obligation attaches to political parties. Given that political parties influence the exercise of political power; transparency in their organisation, functions and, more particularly, their means of funding is a democratic imperative, and, therefore, is in public interest. Insofar as the Income-tax Returns of political parties contain funding details these are liable for disclosure.”

“47. Thus, information which is otherwise exempt, can still be disclosed if the public interest so warrants. That public interest is unmistakably present is evidenced not only in the context of the pronouncements of the Apex Court but also the recommendations of the National Commission for the Review of the Working of the Constitution and of the Law Commission.”

The Commission then ruled:

“In view of the fact that a larger public interest has been established by the Commission in the judgment referred to above, the disclosure of IT Returns of Biju Janata Dal does not fall in the exemption Clause of section 8(1) (j) of RTI Act. The CPIO is directed to provide the information sought within three weeks of receipt of this order.”

[Anil Bairwal vs. ITO, ward 1(2) and JCIT, Range-I, Bhubaneswar: Decided on 24-12-2013 Citation: RTIR I (2014) 58 (CIC)]

• Gurdev Singh had sought details of the Transfer cases and pending cases since 2005 under GPA/SUB GPA

Vide Order dated 4th July, 2013, CPIO informed the appellant that information sought is not specific in nature and is not available in the compiled form. CPIO further offered an opportunity for inspection.

FAA upheld the decision of CPIO. In the second appeal before the Commission, it decided as under:

“Both sides have presented their arguments. Appellant pleaded for disclosure of this information in the larger public interest as he has alleged that the policy benefits were extended in a most arbitrary fashion through pick-and-choose action and that those who were left out were not given any reasons for having been denied the benefits that were extended to other applicants who had applied along side with them thereby putting them unfairly to great disadvantage. This lack of transparency by the Public Authority in the exercise of its powers, it was argued is contrary to the letter and spirit of the RTI Act and breeds corruption. Commission shares the view that transparency is an essential ingredient for good governance. Decisions of the Public Authorities are required to be taken in the larger public interest and must be uniformly administered in a transparent manner. The present case defies these principles and is couched in the dark shade of secrecy. Therefore, as per the provisions of the section 8(2) of the Act, Commission determines that in this case, the disclosure of information outweighs all arguments made in favour of disproportionate diversion of the scare resources of the Public Authority and under the provisions of section 19(8)(a)(iii) requires the Public Authority through the Chairman, Chandigarh Housing Board to establish adequate infrastructure in terms of computers and manpower so that the information sought by the appellant in his RTI application of 17-06-2013 is compiled and placed on the official website of the CHB before 15-06-2014. Commission has given adequate time for completing this exercise as we accept the contention of the respondents that the information sought is maintained in many separate files and will have to be compiled and collated. Commission will review the compliance of the directions held herein above at a later date which will be intimated separately.”

[Gurdev Singh vs. Chandigarh Housing Board, UT Chandigarh: Decided on 11-12-2013: Citation: RTIR (2014) 51 (CIC)]

• FIEM Industries Ltd.:

FIEM industries Ltd. had challenged before the H.C. the Order of SIC, Haryana and Ors. directing PIO to furnish the information sought by the RTI applicant.

The information sought was details of a raid conducted on the petitioner by the VAT authorities and regarding alleged tax evasions by various companies including the petitioner company.

The petition company relied upon the judgment of the SC, in Girish Ramchandra Deshpande vs. CIC and others.

The Court ruled:

“To my mind the judgment could not be strictly applicable to the facts of the present case.” Consequently, the petition was dismissed.

[FIEM Industries Ltd vs. SIC, Haryana and Ors. Decided by the High Court of Punjab and Haryana on 18.12.2013: Citation RTIR I (2014)104 (P&H)]

BS/C/2012/000279/3569: RTIR IV (2013) 163 (CIC)]

levitra

shailesh.kwebmaker

PART B: THE RTI ACT, 2005

12-10-2011 was the RTI Foundation Day.

RTI instrument completed six years of its glorious use to make India’s democracy participative and meaningful, in exposing many scams and for the first time in the history of our nation, put some of the MPs, MLAs, Ministers (including CM) and business magnets in jail.

BCAS foundation, PCGT and IMC held a function on 12-10-2011. The keynote address was delivered there by Justice (Retd.) Shri C. S. Dharmadhikari. We also brought out two-page supplement in MID DAY on 12-10-2011, the same is available to glance at in BCAS & PCGT Library.

This was followed by 6th Annual Convention 2011 on 14th & 15th October at Vigyan Bhavan, New Delhi.

I was invited by the Central Information Commission who organises this convention each year and I attended it.

Delegates from Maharashtra along with two Maharashtra Information Commissioners and a Central Information Commissioner here under at the 6th Annual Convention held a New Delhi.

Four speeches were delivered at the Inaugural session:

Welcome speech by Shri Satyananda Mishra, Chief CIC

Prime minister’s Inaugural Address

Address by Shri V. Narayanasamy, Hon’ble Minister of State (PMO & Personnel, Public Grievances & Pensions)

Vote of Thanks by Shri M. L. Sharma, CIC. There were 4 technical sessions as under:

Group I : Transparency and accountability: with special reference to Public-Private Partnership Projects

Group II : RTI Act: potential and efficacy in curbing corruption and grievance redressal

Group III : RTI Act, exemption provisions and Second Schedule

Group IV : Experiences and Prospects of Information Commissions

Finally, presentations were made by chair persons and panelists of each of 4 groups, mostly through power-point presentations.

The Convention concluded with valedictory address by Shri Nitish Kumar, Chief Minister of Bihar.

levitra

shailesh.kwebmaker

Part A: ORDER of the Supreme Court

Education:
Section 8(1)(e) of the RTI Act: The Supreme Court has delivered a detailed judgment running into 23 printed pages. It is a landmark decision. Aditya Bandopadhyay had appeared for the Secondary School Examination, 2008 conducted by the Central Board of Secondary Education (for short ‘CBSE’ or the ‘Appellant’). When he got the mark-sheet he was disappointed with his marks. He thought that he had done well in the examination but his answer-books were not properly evaluated and that improper evaluation had resulted in low marks. Therefore, he made an application for inspection and re-evaluation of his answer-books. CBSE rejected the said request by letter dated 12-7-2011, holding that it was exempt u/s.8(1)(e) of the RTI Act since CBSE shared fiduciary relationship with its evaluators and maintains confidentiality of both manner and method of evaluation and further the Examination By-laws of the Board provided that no candidate shall claim or is entitled to re-evaluation of his answer-book(s) or disclosure or inspection of answer-book(s) or other documents and further that the larger public interest does not warrant the disclosure of such information sought.

The appellant filed a writ petition before the Calcutta High Court. A Division Bench of the High Court heard and disposed of the said writ petition along with the connected writ petitions (relied by West Bengal Board of Secondary Education and others) by a common judgment dated 5-2-2009. The High Court held that the evaluated answerbooks of an examinee writing a public examination conducted by statutory bodies like CBSE or any University or Board of Secondary Education, being a ‘document, manuscript record, and opinion’ fell within the definition of ‘information’ as defined in section 2(f) of the RTI Act. It held that the provisions of the RTI Act should be interpreted in a manner which would lead towards dissemination of information rather than withholding the same; and in view of the right to information, the examining bodies were bound to provide inspection of evaluated answer books of the examinees.

Consequently, it directed CBSE to grant inspection of the answer books to the examinees who sought information. The High Court however rejected the prayer made by the examinees for re-evaluation of the answer-books, as that was not a relief that was available under RTI Act. The RTI Act only provided a right to access information, but not for any consequential reliefs.

On the above decision, CBSE came to the Supreme Court contending that they were holding the ‘information’ (in this case, the evaluated answer-books) in a fiduciary relationship and therefore exempted u/s.8(1)(e) of the RTI Act.

Decision:
Every examinee has the right to access his evaluated answer-books, by either inspecting them or taking certified copies thereof, unless the evaluated answer-books are found to be exempted u/s.8(1)(e) of the RTI Act.

Section 22 of RTI Act provides that the provisions of the said Act will have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Therefore the provisions of the RTI Act will prevail over the provisions of bye-laws/rules of the examining bodies in regard to examinations. As a result, unless the examining body is able to demonstrate that the answer-books fall under the exempted category of information described in clause (e) of section 8(1) of the RTI Act, the examining body will be bound to provide access to an examinee to inspect and take copies of his evaluated answer-books, even if such inspection or taking copies is barred under the rule/bye-laws of the examining body governing the examinations.

The SC then extensively discussed what is the meaning of ‘fiduciary relationship’ as in section 8(1)(e), dictionary meaning and as stated in number of Indian and US Court’s decisions and concluded: “We, therefore, hold that an examining body does not hold the evaluated answer-books in a fiduciary relationship. Not being information available to an examining body in its fiduciary relationship, the exemption u/s.8(1)(e) is not available to the examining bodies with reference to evaluated answer-books. As no other exemption u/s.8 is available in respect of evaluated answer books, the examining bodies will have to permit inspection sought by the examinees.”

The SC then also extensively and beautifully analysed the provisions of the RTI Act and its real purport, scope and meaning and concluded: “In view of the foregoing, the order of the High Court directing the examining bodies to permit examinees to have inspection of their answer-books is affirmed, subject to the clarification regarding the scope of the RTI Act and the safeguards and conditions subject to which ‘information’ should be furnished. The appeals are disposed of accordingly.

[The above decision was delivered on 9-8-2011: Central Board of Secondary Education and Anr. v. Aditya Bandopadhyay and Ors. It is reported in number of law magazines/journals, etc. including at 2011(8) SCALE 645]

[As it is one of the finest decisions to read and understand the real scope of the RTI Act, photo copy of the full decision will be made available both at BCAS and PCGT]

[This decision is followed by another very interesting, decision in the case of Institute of Chartered Accountants of India v. Shaunak H. Satya & Ors. delivered on 2-9-2011 by the same two judges. It will be reported next month.]

levitra

shailesh.kwebmaker

Part A: ORDERs of SIC & CIC

RTI Act and RTI Rules: RTI Rules of Bombay High Court

In the September issue of BCAJ, I covered a decision of three-member Bench of Maharashtra State Information Commission. In this issue, I cover one more.

Under the RTI Act, there are two types of authorities to which the Act is applicable: Public Authority and Competent Authority. The latter is defined u/s.2(e) as under:

“Competent authority means —

(i) the Speaker in the case of the House of the People or the Legislative Assembly of a State or a Union Territory having such Assembly and the Chairman in the case of the Council of States or Legislative Council of State;
(ii) the Chief Justice of India in the case of the Supreme Court;
(iii) the Chief Justice of the High Court in the case of the High Court;
(iv) the President or the Governor, as the case may be, in the case of other authorities established or constituted by or under the Constitution;
(v) the Administrator appointed under Article 239 of the Constitution;
This case deals pertains to the Bombay High Court, Mumbai. It is the decision of three-member Bench comprising the then State Chief IC (Shri Vilas Patil), SIC, Amravati (Shri M. L. Shah) and SIC, Aurangabad (Shri D. B. Deshpande).

Shri Anandnatraj submitted an RTI application to PIO, in the office of the Registrar, Bombay High Court (BHC) seeking the information in respect of writ petition Nos. 2650 of 95 and 2689 of 95. He asked for photocopies of all papers filed and orders issued in respect of the petition.

The PIO expressed his inability to furnish the information, stating that “the application was not complete in all respects as received as per the Bombay High Court Right to Information Rules, 2006. As per the said Rules, a Court Fee Stamp of Rs.12 is required on the application, however, Rs.10 Court Fee Stamp is affixed. Hence there is deficit of Court Fees of Rs.2. As per the said Rules, the applicant has to submit the application in prescribed format. Please see High Court website ‘bombayhighcourt.nic.in’ for the said Rules. Moreover, in view of the provision to Rule 9 and Rule 19 of the Bombay High Court Right to Information Rules, 2006 the information in respect of judicial proceeding or records cannot be supplied under Right to Information, but you may obtain the said Information as per the procedure prescribed in the Bombay High Court Rules and Orders”.

The applicant preferred an appeal to the First Appellate Authority (FAA). The grounds of appeal were: “the BHC RTI Rules, 2006 are not consistent and in agreement with the provisions of the Right to Information Act, 2005. As provided in Rule 9 of the said Rules, that is, Rule 9 in para 1 obtaining information in respect of third party is permissible by submission of application in Form ‘A’ as per Rule 3, the same rule in para 2 forbids the information of 3rd party in respect of judicial proceedings and records. The said contradiction in clause 9 needs proper interpretation/classification by the Public Information Officer in his reply.”

FAA responded “it is clear that the reply sent by the Public Information Officer cannot be faulted with. The information sought is relating to record of judicial proceedings and copies of the same can be obtained by applying at the facilitation centre of the High Court.” The appeal was disposed of accordingly.

The applicant then furnished the second appeal to Maharashtra Information Commission. First the appeal was heard by a single member by one SIC, Shri Ramanand Tiwari. However he passed on order that “since the issues involved are very important, I suggest that the case should be heard by the full Bench of the Commission or least a Bench consisting of three Commissioners and directed to the Secretary of the Commission to obtain the orders of the CIC and do the needful.”

Accordingly a three-member Bench heard the matter on 14-3-2011. The appellant submitted his written statement and argued also as briefly noted hereinafter.

The respondent PIO also submitted written statement and argued that the PIO and FAA have acted according to BHC RTI Rules which are made by the Chief Justice of the HC, being the ‘Competent Authority’ u/s.28 of the RTI Act.

The main contention before the Commission was that “rules framed by the Competent Authority u/s.28 of the Act, can only be for giving effect to and for carrying out the provisions of the Right to Information Act and cannot be contrary to the provisions of the Right to Information Act. They would be ultra vires and illegal and consequently unenforceable in view of the provisions of section 22 of the Act”.

“The Chief Justice of the Bombay High Court cannot negate the provisions of the Right to Information Act, since neither section 8, nor section 24 gives exemption in respect of providing information related judicial proceeding and records.”

The Commission made the following decision:

“Hence, it is necessary to examine the rules of Interpretation of the statutes.

Once the Legislature has passed the Act, it is subject to judicial review in respect of the constitutionality and the implementation of the provisions of the said Act.

No doubt, the rules made in exercise of the powers delegated under the principal Act, for carrying out the purpose laid down in the principal Act, cannot travel beyond the scope of the Act, nor can they, themselves, enlarge the scope of statutory provisions. They cannot also militate against the provision under which they were made (AIR 1956 SC, AIR 1957 SC 532).

However, the Rules framed under the Act have the force of the Law. (AIR 1954 All 639).

Therefore, the function of the Court is to apply the law as it stands. It is not for the Court to re-write the law, even though the Court notices anomalies and omission and considers the provision as they stand unreasonable (AIR 1982 Ker. 126).

In view of such principles of interpretation of statutes, the Commission has to give the decision as per the rules framed by the Chief Justice High Court of Judicature of Bombay as a Competent Authority u/s.28 of the Act.

Therefore, the decision of the First Appellate Authority is upheld and there is no necessity to interfere with the order of the First Appellate Authority.

However, in view of the points raised by the appellant, the Commission, in view of provisions of section 25(5) of the RTI Act, recommends to the Public Authority, that is the High Court to examine judicially the rules framed by the Chief Justice of the Bombay High Court, whether they are in conformity with the provisions or spirit of the RTI Act, and if found not to be in conformity with the provisions or spirit of the Act, then take such steps to promote such conformity”.

[Shri S. Aanandnatraj, Mumbai v. FAA and PIO of High Court of Mumbai, decision dated 29-4-2011 under Appeal No. 5842/02]

levitra

shailesh.kwebmaker

Part A: PART A: ORDER of CIC

Section 24 and Schedule II and section 8(1)(g) & (h) and sections 4(i)(d), 10 and 22:

In the last RTI article of July 2011 in Part B it was reported that CBI is now exempted from RTI. I had also reported that in the Madras High Court the validity of the said Notification is challenged. Now it is learnt that the same is challenged also in the Delhi High Court.

Further development is that IC, Shailesh Gandhi on 1st July passed an order holding that the said Notification is ultra vires.

The complaint of Mr. Justice R. N. Mishra (Retired) v. PIO-CBI was made on 5-2-2011. While the Notification exempting CBI u/s. 24 of the RTI Act was issued on 9-6-2011. So firstly, IC held that the said Notification cannot be made retrospective. The order reads:

“It follows from the above that CBI has been brought within the Second Schedule of the RTI Act, thereby exempting it from the application of the RTI Act in accordance with section 24 of the RTI Act. However, on a plain reading of the Notification, it does not appear to have a retrospective effect. Reliance may be placed upon the decision of the Supreme Court of India in P. Mahendran v. State of Karnataka AIR 1990 SC 405, wherein it observed as follows:

“It is well-settled rule of construction that every statute or statutory rule is prospective, unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the rules showing the intention to affect existing rights, the Rule must be held to be prospective. If a Rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intention, the rule cannot be given retrospective effect except in matter of procedure.”

The Notification was issued on 9-6-2011 and there is no express stipulation whatsoever, the Notification shall come into force with effect any date prior to 9-6-2011. Moreover, the Notification does not appear to indicate any intention of affecting existing rights and therefore, must be construed as prospective in nature. Hence, information sought in any RTI application filed prior to 9-6-2011 with CBI must be provided in accordance with the provisions of the RTI Act.

IC then examined whether the Notification itself is within the letter and spirit of the RTI Act. The Commission perused the CBI website to find out what are its functions. It then wrote:

“On careful perusal of the material, it can be ascertained that CBI was established for the special purposes of investigation of specific crimes including corruption, economic offences and special crimes. It continues to discharge its functions as a multi-disciplinary investigating agency and evolve more effective systems for investigation of specific crimes. Members of CBI have all the powers, duties, privileges and liabilities which police officers have in connection with the investigation of offences. There is no claim in its mandate and functions, as described above, that CBI is involved in intelligence gathering or is a security organisation. Even the additional functions performed by CBI other than investigation of crimes do not include any function which would lend it the character of an ‘intelligence or security organisation’ u/s. 24(2) of the RTI Act.”

“By enacting the Notification and bringing CBI within the Second Schedule, the Government appears to have increased the scope of section 24(2) of the RTI Act, which was not envisaged by the Parliament. Given the fact that the Right to Information is a fundamental right, any provision by which the said right is sought to be curtailed must be strictly construed. The Government, however, appears to have stretched the interpretation of section 24(2) of the RTI Act far beyond what the Parliament had intended, by including an investigating agency such as CBI within the Second Schedule, which was envisaged exclusively for intelligence or security organisations. The Government has read additional qualification into section 24(2) of the RTI Act which were hitherto not contemplated. By this method the Government could keep adding organisations to the Second Schedule, which do not meet the express criteria laid down in section 24(2) of the RTI Act and ultimately render the RTI Act ineffective. The Government cannot frustrate a law made by the Parliament by resorting to such colourable administrative fiat.”

“Therefore, by enacting the Notification and placing CBI in the Second Schedule, the Government appears to be claiming absolute secrecy for CBI without the sanction of law. The RTI Act was a promise to citizens by the Parliament of transparency and accountability. Given that the previous year has been characterised by unearthing of various scams in the Government which are being investigated by CBI, inclusion of CBI in the Second Schedule by the Government would be a step to avoid the gaze and monitoring of citizens in matters of corruption.”

Finally the Commission concluded:

“In view of the foregoing reasons, the Commission is of the view that the Notification is not in consonance with, either the letter or spirit of the RTI Act, — in particular section 24, — for the following reasons:

(1) As observed above, CBI is not an ‘intelligence or security organisation’, which requirement needs to be satisfied in order for it to be covered u/s. 24 of the RTI Act and therefore, it cannot be included in the Second Schedule.

(2) No reasons have been provided by the DoPT or the Ministry of Personnel, Public Grievances and Pensions, as required u/s. 4(1)(d) of the RTI Act, to justify the inclusion of CBI in the Second Schedule. In the absence of reasons, inclusion of CBI in the Second Schedule along with National Intelligence Agency and National Intelligence Grid appears to be an arbitrary act. The promise made to citizens u/s. 4(1)(d) of the RTI Act must be fulfilled.

This Commission rules that the said Notification of 9-6-2011 is not in consonance with the letter or spirit of section 24 of the RTI Act, since it constricts the citizen’s fundamental right in a manner not sanctioned by the law.”

CBI had before the Commission also submitted that in any case the information sought is exempt u/s.8(1)(g) and (h) of the RTI Act. The Commission also held that the said clauses also do not cover the denial of information sought by the applicant. Finally the Commission held:

“The Complaint is allowed.

The CPIO is directed to provide to the complainant copy of the FIR lodged by CBI. The CPIO is further directed to send copies of FR-I, FR-II and GEQD Expert report to the complainant. The information should be sent to the complainant after servering the names and other particulars of persons, the disclosure of which would endanger their life or physical safety or identify the source of information or assistance given in confidence for law enforcement or security purpose. The information as directed here should be sent to the complainant before 25th July 2011.”

Everyone is awaiting now the response of CBI to this decision.

This is a landmark decision and the full text is posted on the website of BCAS and PCGT.

[Mr. Justice R. N. Mishra (Retired), Allahabad v. PIO & Head of Branch, CBI Anti-Corruption Branch, Decision No. CIC/SM/C/2011/000117/SG/13230, dated 1-7-2011]

levitra

shailesh.kwebmaker

PART C: Information on & Arround

Information on Mr. Sharad Pawar’s traveling on private plane:

Says Mr. Eknath Khadse (BJP leader):

‘Gathering information about the Pawars was a difficult task. However, we used the RTI Act to search the data of air-travel of Mr. Pawar and his family members on Balwa’s air craft’ from the Pune air traffic control. Through RTI application it was gathered that Balwa’s plane was used by Pawar on several occasions and on one trip, besides BCC president Shashank Manohar and his wife, the Balwas accompanied Pawar and his family to Dubai. Khadse has also reportedly dug up facts to prove that Supriya, along with her husband Sadanand and DB Realty, was the promoter of a technology park near Pune set up on an illegally procured land.

Disclosure of personal properties by CIC:

In a major step to introduce greater transparency and accountability, the six Central Information Commissioners now have declared details of their properties on the Commission’s Website.

The Commissioners draw a salary of Rs. 90,000 p.m. Following are the brief summary of declarations made:

S. Mishra : Land, property worth Rs. 1.5cr.
D. Sandhu : Agriculture land worth Rs. 81,000,
2 houses worth Rs. 5.5cr.
S. Singh : house, flat worth Rs. 66.5 lakh.
S. Gandhi : Flat worth Rs. 80,000 (cost at
time of purchase), plus shares,
mutual funds and bank deposits.
A. Dixit : Flat, cottage worth Rs. 51 lakh.
M. L. Sharma : Property worth Rs. 4.50 lakh.

Selection procedure of for appointment of Chief of Trai:.

The selection procedure of the chairman of telecom regulator Trai, including all the details of the selection committee meeting, should be made public, the Central Information Commission (CIC) has held. The panel rejected the plea of the cabinet secretariat that the information was personal in nature and cannot be given u/s. 8(1)(j) of the Right to Information Act, which prohibits disclosure of such details.

“We fail to understand how the desired information could be classified as personal information at all … The information sought in these cases is far from personal. Selection and appointment to certain posts in the government are part of the administrative decision-making process and must be placed in the public domain as soon as possible in order to ensure transparency,” Chief Information Commissioner Satyananda Mishra said. He directed the secretariat to allow the RTI applicant the inspection of the entire file related to the selection of the Trai chairman.

BMC’s functioning :

We all know that it takes months, sometimes years to get projects and files cleared from Brihanmumbai Municipal Corporation (BMC) babus. However, if you have the right connections, then your work could be done in a single day. In 2008 the BMC displayed exemplary promptness and granted permissions in a single day for construction of 13 additional floors on a building in Dadar. Interestingly, all clearances were granted to the builder and the area of a reserved public playground was reduced to make way for the building.

The issue came to light when residents procured documents under the Right to Information (RTI) Act. They learnt how BMC’s Building Proposal Department allowed developers, Finetone Realtors Pvt. Ltd. to construct 13 additional floors on the plush 20-storey Garden Court building in Dadar. Arun Sapkal, a Dadar resident and RTI activist said, “It’s shocking how the BMC first granted permission and later issued stop notice to the builder after the construction was over?” However, developers Ramakant Jadhav of Finetone Realtors Pvt. Ltd. said, “ we have all the necessary permissions in place as per the DCR rules for construction of the building and the playground. We have kept the reservations as allowed by the BMC.”

Information on ITR thru RTI:

Manoj Kumar Saini made an RTI application to get information on income tax-return (ITR) of his father-in-law Mr Munna Lal Saini, CIC Deepak Sandhu ruled:

The I-T returns of individuals do not enjoy ‘absolute ban’ from disclosure CIC has held, while directing the I-T department to provide details of the total income of a person to his son-in-law who is facing a dowry case. We direct the CPIO to provide information pertaining to the taxable income of Munna Lal Saini, father-in-law of the appellant,” Information Commissioner Deepak Sandhu said. The case relates to RTI application filed by Manoj Kumar Saini, who sought to know income of his father-in-law Munna Lal Saini from the I-T as he needed it to buttress his arguments in a dowry case filed against him.

Maharashtra State Information Commission’s Annual Report for the year 2010 is out, just now only in Marathi. Some brief statistics:

RTI applications filed : 5.49 lakh
Appeals received : 19,483
Appeals disposed : 17,266
Complaint received : 4,592
Complaint disposed : 3,911
Public Information Officers penalised : 523
Total penalties : Rs 34.38 lakh
Department action against PIOs : 602

levitra

shailesh.kwebmaker

PART B: The RTI Act , 2005

From the minutes of the meeting of 22.03.2011 of the central information commission.

PENDENCY

Taking note of the increasing pendency of appeals/ complaints in the Commission over the last few years and realising the need for their expeditious disposal, the Commission hereby resolves that each single bench of the Commission shall take urgent steps to maximise its disposal without comprising the quality thereof, as a general rule, each single bench will endeavour to finally decide about 3200 appeals/complaints per year.

Application of the provisions of the RTI-Act to the entities under the Public Private Partnership (PPP Arrangement)

Chief CIC has exchanged letters with the Deputy Chairman, Planning Commission, India on the subject of PPP Arrangement. Extracts from the same:

Satyananda Mishra, CIC on 04.01.2011 writes:

A PPP entity should be deemed to be a public authority u/s. 2(h) for the purpose of the RTI Act.

All Projects which are handed over to a PPP entity for building, operating or maintaining the land, even if not any other resources, given by the Government, forms a vital component of the project and, to that extent, can be deemed to substantial financing.

However, due to a lack of clarity on this at various levels and, especially since the RTI Act does not expressly refer to such bodies while defining the public authorities, a lot of confusion persists and such entities have, by and large, remained outside the purview of the RTI Act.

This Commission is of the view that time has come to clarify the role and responsibility of the PPP entity for implementing the RTI Act in order to bring in greater transparency in implementation of such projects.

Letter then suggest how the coverage is to be implemented and once carried out, a lot of confusion in this regard will go and the citizens will have access to vital information regarding the projects which affect their lives. Needless to say, this will also greatly improve the accountability of such entities to both the Government and the public at large.

In reply, Montek Singh Ahluwalia vide letter dated 14.03.2011 states:

In the Press Note issued, we recognise that the powers of the Information Commission are laid down in the RTI Act. It is for the Commission to exercise these powers in their best judgment. It may not be appropriate to expand or reduce the jurisdiction of the Information Commissions through a contractual arrangement in the concession agreements. However, we have referred the matter to the Department of Legal Affairs for advice and I will revert to you on receiving their advice.

The Commission discussed above referred letter at its meeting of 22-03-2011 and recorded as under:

The Commission discussed the letter of the Deputy Chairman, Planning Commission on application of RTI Act to the entities under the PPP. The CIC decided to wait for two months for the Planning Commission to send a copy of response of Department of Legal Affairs on this issue as referred to in the letter of the Deputy Chairman dated 14-03-2011.

It is now reported in ET of 26 April that MoF objects to plan Panel’s role in social PPPs and says that they fall in its domain. Matter has been referred to the cabinet secretariat seeking its intervention on the matter.

I hope that PPP arrangements come in the domain of RTI whoever may be in charge of the same at Government level.

levitra

shailesh.kwebmaker

PART C: Information on & Around and Part D : RTI & SUCCESS STORIES

PART C: Information on & Around

RTI activist stabbed in Ahmadabad:

Another Tragedy

An RTI activist, known for his opposition to various illegal activities in Juhapura area of Ahmadabad was hacked to death. Nadeem Saiyed, 38, who was also an eyewitness in the Naroda Patia riots case, was stabbed 25 times with a butcher’s knife and axes.

The gruesome murder has once again sparked off a controversy about policing in the state. Saiyed was also suspected of being a police informer. He is believed to have informed senior police officers that the people who were arrested following a recent incident in which a police vehicle was torched while trying to rescue cows brought for slaughter in Juhapura, were not the real culprits.

The sources said that because of Saiyed’s past of exposing criminals, the real motive behind the murder could be of eliminating him from Juhapura for good.

RTI Impact:

Chief Minister Prithviraj Chavan said that he does not take decisions in haste as, “I am aware that I have to face the Right to Information Act.”

A decade ago, there were no problems but now, one moves with caution. “There is cautiousness in the administration. Nobody is willing to take a decision,” he added.

Post mortem Centre at JJ Hospital, Mumbai:

A STARTLING expose made by an ‘aam aadmi’ using the Right to Information Act, has revealed that the chief of postmortem centre at JJ Hospital has been neglecting his primary responsibility at the hospital and instead, has been running a private hospital in Badlapur. Moreover, he continues to derive benefits of the Non Practicing Allowance (NPA)while he is busy treating patients at his private hospital.

Fed up with the delay in securing an autopsy report of a deceased relative who was admitted at JJ hospital in April, Asad Patel, a resident of Jogeshwari, decided to investigate the reason for this delay.

Having decided to expose Rathod, Patel got admitted at the Rathod Hospital in Balapur on April 27, complaining of tension and chest pain. According to Patel, Dr. Rathod personally treated him and had carried out an ECG and a blood test. Patel was later discharged after paying Rs. 750.

After collecting various documents from Dr. Rathod’s hospital, Patel filed an RTI query, enquiring about Rathod’s presence in the hospital on April 27. Patel was in for a rude shock as the hospital authorities in their reply stated that Dr. Rathod was present at the hospital on April 27, and was even paid Rs. 7,368 as NPA.

Following this revelation, Patel lodged a complaint against Dr. Rathod on August 24 with Health Minister Suresh Shetty, demanding action against the doctor.

“I have also learnt that Dr. Rathod visits the hospital just once a week and is bribing the clerks to mark his attendance for the remaining working days,” alleged Patel.

Penalty on PIOs:

The central Information Commission is handling babus with “Kid gloves” for not providing information within the prescribed timeframe or flouting rules of the Right to Information Act, statistics have revealed. Under the Act, the information commissioner can impose a penalty or order compensation and disciplinary action against erring public information officers.

Since 2006-07, the CIC has imposed penalties in only 648 cases (less than 1%) under the Act, even though it has disposed of 75,284 appeals/complaints out of 94,209 since 2006-07. Of these 648 cases, the CIC recovered penalties in only 532 cases in five years, amounting to around Rs.60 lakh. Thus, the CIC is yet to recover penalties in 18% cases.

The CIC sanctioned compensation in only 134 cases in six years. In 22 cases, disciplinary action against the chief public information officer (CPIO) was sanctioned.

Part D : RTI & SUCCESS STORIES

Mr. Dhiraj Rambhai’s success story

WHAT A SURPRISE! THINGS WHICH WERE NOT DONE IN 90 DAYS GOT DONE IN 9 MINUTES

Government departments which were working at lesiure at tortoise speed have started working at hare speed due to RTI ACT, 2005. Here is one more example.

Kanti Gada & Priti Gada stay at Mulund Vinanagar having business of plastic drum manufacturing.

They own a farm house in the outskirts of Mumbai at Asangaon district, Thane. On 5th June 2011 due to heavy rains the wires supplying electricity to their farm house got short circuited and the power supply to their farm house was cut as safety mea-sures. After 2-3 days when the weather was normal Preeti Gada requested local MSEDCL office to re-store the supply but no action was taken on their repeated complaints. They lodged the complaint in writing 5-6 times but it went to files only and their farm house remained in dark for almost three months. One fine day they read one of the success story of the RTI in Dhiraj Rambhia column ‘JAN JAGE TO SAVAR’ on the RTI in Gujarati news paper MUMBAI SAMACHAR. Inspired by the column they approached TARUN MITRA MANDAL, Thane RTI guidance centre on 27th August. After listening to Preeti Gada’s problem, Thane centre volunteers prepared the RTI application asking for the information on (1) steps taken on Preetiben’s earlier complaints (2) the reasons recorded regarding delay in action on complaints (3) the name and designation of the officer responsible for the delay in action. On 28th August, Priti Gada went to local MSEDL office to submit the application, When the officer in the office read the application his fuse got blown. He immediately pleaded to Priti Gada not to make the application and immediately phoned the concerened line men to connect the electric supply Thus, action which was not taken for 90 days was done in 9 minutes.

levitra

shailesh.kwebmaker

Release of Publication on Digest of Full Bench Decisions of Central Information Commission

BCAS Foundation jointly with Public Concern for Governance Trust (PCGT) released the publication on 26th June, 2012 at Kitab Khana, Mumbai at the hands of Ratnakar Gaikwad, State Chief Information Commissioner. The publication is the result of joint efforts by Ambrose Jude D’Cruz, Anil K. Asher, Advocate and Notary and Narayan K. Varma, Chartered Accountant.

Also present at the occasion were Pradip Thanawala and Pradeep Shah, Trustees, BCAS Foundation and Julio Ribeiro, Chairman, PCGT along with other well-wishers of BCAS Foundation and PCGT.

The publication will help the RTI applicants/activists to better equip themselves and will benefit the society at large. The book is available for sale at BCAS office. L to R: Ambrose Jude D’Cruz, Pradip Thanawala (President), Ratnakar Gaikwad (State Chief Information Commissioner), Julio Ribeiro, Pradeep Shah and Anil Asher.

In March 2010 two NGOs viz. Public Concern for Governance Trust and BCAS Foundation published a book under the title ‘Right To Information – A Route To Good Governance’. All 2,000 copies printed are exhausted. I have a desire to revise the same and publish a revised and an enlarged edition of it, especially because the book is being appreciated by many who went through the same. However, due to my ill health since last ten months, I have not been able to progress on it. Hopefully, I shall soon do it. Many citizens are filing applications under the RTI Act. As PIOs and FAAs are still reluctant to part with the information, many Second Appeals are being filed before the CIC and SCIC. Many aspects of the law are not settled. Important law points are referred to a full bench for decision. Thus these decisions have a persuasive value. Hence in the meantime, above two NGOs decided to publish this “Digest of Full Bench Decisions of CIC”.

Idea to publish this Digest was given to me by RTI activist and The Central Information Commissioner, Mr. Shailesh Gandhi. We then requested Mr. Ambrose Jude D’Cruz, Government Law College student to prepare this digest. He has taken lot of pain and had lot of interaction with Mr. Anil K. Asher and me. Finally he handed over the text for publication early this month. Mr. Anil K. Asher, advocate and RTI activist who, with his sister, Mrs. Hema Sampat and Narayan Varma runs RTI Clinic at BCAS on the 2nd, 3rd and 4th Saturday every month since 2004, has thoroughly gone through the text, given good comments and revised text, drafted Head notes and notes wherever necessary.

I have glanced through the text more than twice and final copy and prepared the contents. Full Bench decisions have been digested in a simple manner for easy understanding. An attempt has been made to compile these decisions for better appreciation of the provisions of the RTI Act. Where any party has filed writ petition in High Court / Supreme Court suitable note at the end of the case digested has been added. Any reader who may like to peruse the relevant full decision may do so on website www.cic.gov.in as per case reference given at the end of each case.

51 Decisions of full bench of CIC delivered from 2007 to 2011 have been digested in this publication. There is not a single F.B. decision on CIC website in 2012 till this date. We have also digested one full bench decision of Maharashtra State Information Commission, [Case No.52] wherein a very important law point was raised before the Maharashtra State Information Commission.

On CIC website there are 60 decisions listed. 9 of them are not digested here for the reasons printed elsewhere in this publication. Thus, digested cases number 52.

Playing cards have 52 cards (excluding Jokers). Our number of Digest of CIC decisions is also 52. But these are not playing cards, these are “paying” cards (decisions). On behalf of two NGOs and myself, we record our appreciation to Mr. Ambrose D’Cruz and Mr. Anil K. Asher for the pains taken by them to prepare this Digest of CIC’s Full Bench decisions. As noted by Mr. Shailesh Gandhi, the decisions of Full Bench of CIC shall have lot of persuasive value to the RTI applicants for submissions before PIO, FAA and the Commissioner. Each decision appears on fresh page.

Blanks at the end of many decisions may be used to update by the readers for making Notes. In case if any decision is confirmed or reversed by the courts subsequently, same may be noted.

We are confident that this publication will be useful not only to the RTI activists, Public Information Officers and First Appellate Authorities and various Public authorities, but also to Information Commissions in proper understanding of the various provisions of the Right to Information Act and quick disposal of the cases. Suggestions and opinions will be highly appreciated and duly acknowledged. We shall feel amply rewarded if the publication containing the digest of full bench decisions of the CIC succeeds in changing the mindset of Indian bureaucracy and help RTI activists in guiding the citizens in procuring the information. I am happy to note that both NGOs publishing this book have agreed to fix price to cover the cost incurred by them. I hope this book enhances the achievement of RTI objectives. R2i jai ho! Narayan Varma

Message of Shailesh Gandhi, Central Information Commissioner

PCGT and BCAS are two of the leading organizations which have consistently supported Right to Information. I congratulate them on coming out with a very useful publication for all RTI users. They are publishing the digest of full bench decisions of the Central Information Commission, which could prove a very useful reference for users and Information Commissioners. Decisions given by Information Commissions have great persuasive value. RTI users could use these to persuade PIOs, First Appellate Authorities and Commissions to part with information. Full bench decisions of the Commission are generally accepted when they define certain principles, and over the next few years we will have built enough precedence in favour of transparency. I am aware Shri Narayan Varma has put in a lot of his commitment and time to getting this project together. He is one of the stalwarts of the RTI movement. I wish this project all success and am sure we will see many more useful contributions from PCGT and BCAS to further RTI. Love Shailesh All my emails are in Public domain. Mera Bharat Mahaan…Nahi Hai, Per Yeh Dosh Mera Hai.

Message of Ratnakar Gaikwad, State Chief Information Commissioner

I am extremely happy to know that PCGT and BCAS Foundation are to release publication “Digest of FULL BENCH DECISIONS OF Central Information Commission” on 26th June, 2012. Undoubtedly, PCGT and BCAS Foundation have been doing pioneering work in the spread of RTI. Since, there are still many grey areas in RTI, it is in fitness of things that a publication containing Digest of FULL BENCH DECISIONS OF Central Information Commission is being released. This publication I am sure it will go a long way in throwing light and bringing clarity on many issues for various stake holders in the field of RTI. I would like to place record my high appreciation for the tremendous contribution being made by Shri Narayan Varma, and it is mainly due to his initiative that this project has materialized. I wish this unique initiative all the success and look forward to many such initiatives and contributions from PCGT and BCAS in the field to RTI. n

levitra

shailesh.kwebmaker

PART A: SUPREME COURT Decisions

In BCAJ of October 2012, I had reported the Order of the Supreme Court in the writ petition in the matter of Namit Sharma vs. Union of India decided on 13-09-2012.

The said order had annihilated RTI operations in India. It was criticised by a large number of RTI activists, many retired judges and also by the Government itself. In BCAJ of November 2012, I had reported that the Government has applied for its review. Mr. Shailesh Gandhi and Mrs. Aruna Roy had intervened in this review petition.

Now the said review petition has been heard and the judgment dated 03-09-2013 (of 55 pages) is delivered by two judges, Justice A. K. Sikri and A. K. Patnaik (who was also one of the two judges in the writ along with Justice S. P. Sampath Kumar).

The Supreme Court held as under:

32. Under Order XL of the Supreme Court Rules, 1966 this court can review its judgment or order on the ground of error apparent on the face of record and on an application for review can reverse or modify its decision on the ground of mistake of law or fact. As the judgment under review suffers from mistake of law, we allow the Review Petitions, recall the directions and declarations in the judgment under review and dispose of Writ Petition (C) No. 210 of 2012 with the following declarations and directions:

(i) We declare that sections 12(5) and 15(5) of the Act are not ultra vires the Constitution.

(ii) We declare that sections 12(6) and 15(6) of the Act do not debar a Member of Parliament or Member of the Legislature of any State or Union Territory, as the case may be, or a person holding any other office of profit or connected with any political party or carrying on any business or pursuing any profession from being considered for appointment as Chief Information Commissioner or Information Commissioner, but after such person is appointed as Chief Information Commissioner or Information Commissioner, he has to discontinue as Member of Parliament or Member of the Legislature of any State or Union Territory, or discontinue to hold any other office of profit or remain connected with any political party or carry on any business or pursue any profession during the period he functions as Chief Information Commissioner or Information Commissioner.

(iii) We direct that only persons of eminence in public life with wide knowledge and experience in the fields mentioned in sections 12(5) and 15(5) of the Act be considered for appointment as Information Commissioner and Chief Information Commissioner.

(iv) We further direct that persons of eminence in public life with wide knowledge and experience in all the fields mentioned in sections 12(5) and 15(5) of the Act, namely, law, science and technology, social service, management, journalism, mass media or administration and governance, be considered by the Committees u/s. 12(3) and 15(3) of the Act for appointment as Chief Information Commissioner or Information Commissioners.

(v) We further direct that the Committees u/s. 12(3) and 15(3) of the Act while making recommendations to the President or to the Governor as the case may be, for appointment of Chief Information Commissioner and Information Commissioners must mention against the name of each candidate recommended, the facts to indicate his eminence in public life, his knowledge in the particular field and his experience in the particular field and these facts must be accessible to the citizens as part of their right to information under the Act after the appointment is made.

(vi) We also direct that wherever Chief Information Commissioner is of the opinion that intricate questions of law will have to be decided in a matter coming up before the Information Commission, he will ensure that the matter is heard by an Information Commissioner who has wide knowledge and experience in the field of law.

[Review petition (C) No. 2309 and (c) No. 2675 of 2012 in Writ Petition (C) No. 210 of 2012: State of Rajasthan & Anr vs. Namit Sharma, decided on 03-09-2013]

levitra

shailesh.kwebmaker

PART A : Decision of the C.I.C.

Sub: Section 8(1)(j) of the RTI Act

Following was the information sought by the Appllicant and the reply given by the PIO.

The PIO has refused to give the information claiming exemption under Section 8(1)(j) of the RTI Act. An appeal was filed. The PIO (the respondent) stated that third party information could not be disclosed without taking the views of the third party and relied upon the case of Suhash Chakma vs. CIC in W.P.(C) No. 9118 of 2009. The respondent also stated that the present whereabouts of the third parties are not maintained by the Ministry.

The Commission ruled that if the third party’s address could not be located it did not mean the citizen’s right to information would disappear. Section 11 is a procedural requirement that gives third party an opportunity to voice an objection in releasing the information.

The Commission then held that in section 11(1) it is clearly stated that submission of third party shall be kept in view while taking a decision about disclosure of information. Section 11(1) dealt with the information ‘which relates to or has been supplied by a third party and has been treated as confidential by that third party’. Thus the procedure of Section 11 comes into effect if the PIO believes that the information exists and is not exempt, and the third party has treated it as confidential. The PIO must send a letter to the third party within 5 days of receipt of the RTI application. It only gives the third party an opportunity to voice its objections to disclosing information. The PIO has to keep these objections in mind and the denial of information can only be on the basis of exemption under Section 8(1) of the RTI act. As per Section 11(3), the PIO has to determine whether the information is exempt or not and inform the appellant and the third party of his decision. If the third party wishes to appeal against the decision of the PIO, he can file an appeal under Section 19 of the Act as per the provision of Section 11(4).

The Commission then explained whether the information sought was exempt u/s 8(1)(j). As per the Commission, two points need to be satisfied for the information to qualify for exemption:

(i) It must be Personal Information.

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 a permission, licence or authorisation or passport, all these are public activities. Also, when a citizen provides information in discharge of a statutory obligation, that too is a public activity.

(ii) To check ‘whether the State invades the privacy of an individual’.

According to the Commission, 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.

The Commission noted that the 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 Supreme Court of India has ruled that citizens have a right to know about charges against candidates for elections as well as details of their assets, since they desire to offer themselves for public service. It is obvious then that those who are public servants cannot claim exemption from disclosure of charges against them or details of their assets. Given our dismal record of mis-governance and rampant corruption which colludes 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.

In view of above, the Commission did not accept the PIO’s contention that information provided by an applicant when applying for passport was exempt under Section 8(1)(j) of the RTI Act. [Mr. Anand Narayan Devghare vs. PIO, Regional Passport Office, Mumbai: CIC/SG/ A/2012/000794/18743 dated 4th May 2012.]

levitra

shailesh.kwebmaker

PART D: RTI & SUCESSS STORY

RTI success story of Vinita Deshmukh, Pune:

The controversial Dow Project in Pune — at Shinde- Vasuli village in Chakan came to a grinding halt in 2010. In fact, unable to sustain vociferous local protest against the establishment of its chemical plant in the heart of the village, Dow voluntarily walked out of Pune district. I couldn’t believe what I heard . . . .

Since then, the site wears a deserted look. Much of the construction material too has been lifted by the Dow people, say villagers. cement bags lie torn, construction pillars with jutting out iron rods wait hopelessly and most of the makeshift offices too have been flattened. Two security guards stroll around and dare not defy clicking photographs. The land still belongs to Dow confirms the MIDC official in Pune and MPCB Pune says no directive has been given by it to the shift base. According to news reports, Dow has voluntarily decided to move out, stung by the hostility of the local residents. Well, but there are no sympathies for this turn of events.

Like they say, as you sow, so shall you reap.

When I called up the then District Collector Chandrakant Dalvi, he confirmed that “Dow is now out of Pune district.’’ It is the intense campaign by villagers taken forward by the Warkari community of entire Maharashtra that eliminated Dow from Pune. I, in the capacity of the editor of ‘Intelligent Pune’, a weekly tabloid, played a pivotal role in accessing crucial information under RTI. Inspection of files u/s.4 of the RTI Act at the Maharashtra Pollution Control Board (MPCB), Maharashtra Industrial Development Corporation (MIDC) and Secretary, Environment office at the Mantralaya, Mumbai revealed shocking details.

When Dow was given a whopping 100 acres of land, it began construction sometime late 2007. Villagers were in the dark about it, they were not even told the name of the company. Former Sarpanch Panmant recollects that suddenly a 4,000 strong labour force was put to work day and night. When they tried getting information from the collector’s office, they were stonewalled. It was only in January 2008 that the company put up the board on site, namely, ‘Dow Chemicals International Ltd.’.

Sometime in January 2008 Justice (retd.) B. G. Kolshe Patil visited the village for a public programme. When he found the name ‘Dow Chemicals International Ltd.’ on the board, he asked the villagers whether they were aware of what was coming to their village. He enlightened them that it is the same company which was responsible for the Bhopal Gas Tragedy and that villagers should not allow this company to set up home here.

Thus, villagers began their agitation. They first stopped the water connection that they had willingly given to the company premises and then halted any company vehicle from entering their village. For this, they dug up superficial trenches. Newspapers reported about the warpath taken by the villagers.

I decided to find out more about permissions given to Dow. When I called up Member Secretary, MPCB, he answered that, “I have no documents. If you want, you can invoke the RTI Act.’’

I did so and literally opened up a Pandora’s Box. I broke the story in ‘Intelligent Pune’ in the 7th March cover story. It shocked Puneites and armed villagers of Shinde-Vasuli where the Dow Chemicals plant was coming up, with hardhitting ammunition in the form of the truth in black and white.

The Maharashtra Pollution Control Board (MPCB) is the prime body to give environmental clearance for such a project. The Maharashtra Industrial Development Corporation (MIDC) is the body which provides land. Both are required to scrutinise the proposal of this nature thoroughly since the outfit, even if it is an R&D centre, is of a chemical nature. I carried out inspection of files u/s.4 of the RTI Act at the MIDC, Pune office. I also invoked the RTI at the MPCB office to know what kind of consent DOW had applied for and what kind of consent had the MPCB given.

Though we procured crucial correspondence, which took off the lid of DOW’s claim that it was primar-ily a research and development centre and not a manufacturing unit, vital documents pertaining to NOCs from the Ministry of Environment & Forests (MOEF) and Industrial Entrepreneurs Memorandum (IEM) — both mandatory for establishment of a chemical plant were either missing or not submitted at all. “We do not have these documents in Pune — you may try in Mumbai’’ was the chorus of the regional officers of the MIDC and MPCB.

Inspection of files at MIDC, Pune on 28th February, 2008:

Information was gathered u/s.(4) of the RTI Act wherein this writer and RTI activist, Vijay Kumbhar, undertook inspection of the file containing correspondence between MIDC and DOW. Some of the file notings reveal the hurry in which the proposal was given a green signal. The correspondence also reveals that what DOW was setting up was not primarily a research and development centre. Many files were inspected. Hereunder are the observations:

19th October, 2007: In his letter dated 19th October, 2007, Sanjay Khandare, member secretary of the MPCB has granted Dow Chemicals International Pvt. Ltd. (plot no A-1, MIDC Chakan, Phase II, Taluka Khed, District. Pune) the consent for the manufacture of the following chemical products: Polymers — 2,000 kgs per month; Catalyst organic/inorganic — 1,000 kgs per month; Surfactants — 200 kgs per month; Aliphatic organic compounds — 500 kgs per month; Aromatic organic compounds — 500 kgs per month; Inorganic salts — 500 kgs per month.

In case of accidents, the MPCB expects DOW to do a clerical post-accident action — “Whenever due to any accident or any other unforeseen act or even, such emissions occur or apprehended to occur in excess of standards laid down, such information shall be forthwith reported to Board, concerned police station, officer of director of health services, Department of Explosives, Inspectorates of factory and local body. In case of failure of pollution control equipments, the production process connected to shall be stopped.’’

Maj. Gen. SCN Jatar (retd.), a petrochemical expert and RTI activist stated that, “The authorities should not have given final approval until the environmental impact assessment (EIA) report is made. The report should be made by a well-known agency and local representatives of the citizens should be associated with its preparation.”

Pollution control board experts who scrutinised the consent by the MPCB, commented:

“The list of chemicals given which are likely to be used at the Chakan plant includes hazardous and dangerous gases as well as chemicals such as (1) gases — SO2, Acetylene, HCL. (2) Solvents — Acetone, ether, nitrite compounds, halogenetic solvents, and inorganic acids. Thus the safety-related issues arising out of handling, accidents and incidents involving above chemicals require proper storage, handling and emergency procedures. For this an environmental management plan should have been asked by the Board of Government of India’s MSIHC (manufacturing, storage, import and handling of hazardous chemicals rules 1989) as notified in the EPA Act same does not seem to have been adhered to. There does not seem to be adherence of the Chemical Accidents & Emergency Preparedness (Rules 2000) for which the company needs to submit onsite and off site disaster management plan and that includes education to the neighbourhood residents. It is the fundamental right to know what is happening in the neighbourhood.”

As a precautionary principle, environmental impact analysis should have been done by the company on its own when they claim they are a responsible corporate. Neither the board has asked for it.

I informed the villagers regarding the kind of chemical manufacturing plant and that it was not just a research centre which was coming in their neighbourhood. Bandya Tatya Kharadkar, the Warkari leader successfully led a state-wide agitation as the Indrayani river is close to the heart of this community. What makes me feel overwhelmed is the fact that it was RTI that could move a colossal multinational company which flexes its muscles in countries like India based on money power. RTI can even drive away such a powerful business enterprise!

shailesh.kwebmaker

PART A : Decision of the CIC

Public Authority u/s.2(h) of the RTI Act: Public-Private Partnership

A very important order is made by CIC, Shailesh Gandhi on above subject i.e. bodies under publicprivate partnership (PPP).

The applicant had sought information from the Public Health Foundation of India, New Delhi (PHFI). While PHFI provided all the information sought, it stated that it is not a ‘public authority’ as defined under the RTI Act and it is a completely autonomous institution.

The applicant wanted the Commission to rule on this point, i.e., whether PHFI, (a PPP body) is covered under the RTI Act or not.

The Commission noted as under: “From a plain reading of the section 2(h), it appears that PHFI is not covered under clauses (a), (b), (c) & (d)(ii) of section 2(h) of the RTI Act. Therefore, the issue which remains to be determined is whether PHFI gets covered under clause (d)(i) of section 2(h) or not. The said clause reads: body owned, controlled or substantially financed directly or indirectly by funds provided by the appropriate Government.”

It appears that PHFI is not ‘owned’ by the appropriate Government. As regards being ‘controlled’ by the appropriate Government, the said term has not been defined under the RTI Act. There are various forms in which the Government exercises control over an entity, which is relevant in determining whether the latter is a public authority. On perusal of the information about PHFI’s governing board, the Commission noted that amongst its 30 Board members are:

1. Dr. Montek Singh Ahluwalia, Deputy Chairman, Planning Commission, Government of India;

2. P. K. Pradhan, Secretary, Ministry of Health and Family Welfare, Government of India;

3. Vishwa Mohan Katoch, Secretary, Department of Health Research, Ministry of Health and Family Welfare and Director General, Indian Council of Medical Research;

4. T. K. A. Nair, Principal Secretary to the Prime Minister of India; and

5. Dr. R. K. Srivastava, Director General Health Services, Ministry of Health and Family Welfare, Government of India.

Thus, at least one-sixth of the members of the governing board of PHFI consist of senior public servants. At the hearing held on 24-1-2012, the respondent claimed that most of the Government officials on the board of PHFI were occupying such positions in ‘private capacity’.

This Bench is of the view that such a claim is untenable. It is difficult to assume that senior public servants can be on the board of an organisation like PHFI — which has numerous interactions with the Government, in private capacity. In fact, this would necessarily imply a conflict of interest. The Commission can only assume that such public servants must necessarily be acting on behalf of the Government — when they are required to take executive decisions as members of the board in a public-private partnership (PPP) such as PHFI. Any other conclusion would be an improper slur on their integrity. It is not possible that India’s leading public servants could be acting in any manner, but as representatives of the Government when they are on the board of PHFI. It is also true that significant funding is provided by the Government to PHFI. Hence, it is presumed that the five officials on the board of PHFI are discharging their duties as public servants.

The RTI Act does not specify ‘complete control’ in section 2(h). As per P. Ramanatha Aiyar’s, ‘The Law Lexicon’ (2nd Ed., Reprint 2007 at p. 410), the term ‘control’ means — ‘power to check or restrain; superintendence; management . . . . . . .”. It appears that the presence of senior Government servants on the board may check or ensure that decisions taken in PHFI are in consonance with the Government’s avowed objectives. Therefore, the presence of a fair degree of Government control on the decisions of PHFI cannot be ruled out. It follows that PHFI is ‘controlled’ by the appropriate Government. This may not be complete control, but five top public servants would exercise some degree of control, which would be significant.

The respondent had doing the hearing also admitted receiving Rs.65 crore from the Government. In this regard, reliance may also be placed on the complainant’s contention that in the 20th Report of the Department-Related Parliamentary Standing Committee on Health and Family Welfare submitted to the Rajya Sabha (2007), it was noted that “The Government of India is contributing Rs.65 crore, approximately one-third of the initial seed capital required for kickstarting the PHFI and for establishment of two Schools of Public Health. The remaining amount (approximately Rs.135 crore) is being raised from outside the Government, namely, Melinda & Bill Gates Foundation (Rs.65 crore) and from high net-worth individuals. PHFI is managed by an independent governing board that includes 3 members from the Ministry of Health and Family Welfare viz. Secretary (H&FW); DG ICMR and DGHS. T. K. A. Nair, Principal Secretary to Prime Minister, Dr. M. S. Ahluwalia, Vice-Chairman, Planning Commission; Sujata Rao, AS&PD, NACO, Ministry of Health; Dr. Mashelkar, DG CSIR are also members of the governing board. The presence of the officials from Government would ensure that the decisions taken in PHFI are in consonance with the objectives for which PHFI has been supported by Government of India. It is expected that all members of the Governing Board would ensure the functioning of the Foundation as a professional organisation and with complete transparency.” (emphasis added). Thus, the Parliamentary Standing Committee also assumed that the Vice- Chairman of the Planning Commission, Principal Secretary to the Prime Minister and other public servants were ensuring that decisions of PHFI were in consonance with the Government’s objectives and complete transparency. PHFI’s refusal to accept it is coverage by the RTI Act seems at variance with this.

Further, though the term ‘financed’ is qualified by ‘substantial’, section 2(h) of the RTI Act does not lay down what actually constitutes ‘substantial financing’. It is akin to ‘material’ or ‘important’ or ‘of considerable value’ and would depend on the facts and circumstances of the case. The funding sources of PHFI are foundations, private donors and the Ministry of Health and Family Welfare, Government of India (MH&FW). At the hearing held on 24-1-2012, the respondent stated that PHFI was set up in 2006 with an initial fund corpus of Rs.200 crore (at present Rs.219 crore), out of which Rs.65 crore were provided as grant by MH&FW. It follows that Government funding in PHFI is to the tune of 30%, which cannot be considered as insubstantial. Moreover, even if taken on absolute terms, a grant of Rs.65 crore given by the Government from its corpus of public funds cannot be considered as insignificant and would render PHFI as being ‘substantially financed’ by funds from the Government.

Citizens have a right to know about the manner, extent and purpose for which public funds are being deployed by the Government. Having said so, not every financing of an entity in the form of a grant by the Government would qualify as ‘substantial — but certainly a grant of over Rs.1 crore would constitute ‘substantial financing’ rendering such entity a public authority under the RTI Act.

Furthermore, the respondent also stated that PHFI is a public-private partnership. It is relevant to mention that PPPs are in the nature of legally enforceable contractual agreements between public authorities and private organisations with clearly laid out terms and conditions, and rights and obligations. PPPs, by their very nature, stipulate certain contributions by the Government such as giving land at a concessional rate, grants, mo-nopoly rights, etc. In cases such as grants, direct funding by the Government can be easily calculated. In cases such as giving monopoly rights or land at a concessional rate, etc., value(s) must be attached and the same would tantamount to indirect financing by the Government. In other words, PPPs envisage a partnership with public funds — directly or indirectly — and therefore citizens have a right to know about the same.

As a consequence of being a public-private partnership, PHFI has received a substantial grant of Rs.65 crore from the Government initially. Further, as per the complainant’s contention — PHFI has been receiving free land and handsome financial grants from state governments for setting up ‘Indian Institutes of Public Health’ (IIPHs) as part of the public-private partnership. For instance, the Andhra Pradesh Government provided PHFI with 43 acres of land in Rajendra Nagar area of Hyderabad free of cost and Rs.30 crore in financial grant for setting up IIPH. The Gujarat Government provided 50 acres in Gandhinagar and Rs.25 crore as grant. The Orissa Government provided 40 acres near Bhubaneswar and the Delhi Government spent Rs.13.82 crore on acquiring 51.19 acres of Gram Sabha land in Kanjhawala village for PHFI to set up IIPH. Hence, there appears to be substantial financing both directly and indirectly by the Government. It follows from the above that PHFI is controlled and substantially financed by the Government.

Therefore, this Commission rules that PHFI is a public authority u/s.2(h) of the RTI Act.

I may note that PHFI subsequent to the hearing, itself agreed to submit itself to the jurisdiction of the RTI Act and the Commission further noted as under:

“It may not be out of place to mention that in recent years, there has been an emergence of multitude of public-private partnerships in different sectors. As described above, PPPs envisage an arrangement between the Government and private entities with clearly laid down rights and obligations. By their very nature, PPPs stipulate certain contributions from the Government, which may be monetary as well as non-monetary — to which values can be attributed. Moreover, PPPs envisage a certain degree of Government control in their functioning so that the decisions taken are in accordance with the objectives for which the partnership was set up. Given the above, PPPs would come within the ambit of ‘public authorities’ as defined in the RTI Act, thereby enabling citizens to know/obtain information about them. At present, most PPPs do not even accept the applicability of the RTI Act to them and wait for the issue to be adjudicated upon at the Commission’s level. For this some citizen has to pursue this matter. Such practices are required to be brought to a minimum and PPPs must comply with the provisions of the
RTI Act.”

In this instance the Commission notes with some dismay that the highest levels of public servants in India did not accept the citizen’s enforceable Right to Information in PHFI, despite the Government substantially funding it and exercising some control.

This strengthens the plea by the Commission that all public-private partnership agreements must have a clause that they are substantially funded by the appropriate Government and hence accept that they are public authorities as defined in the RTI Act. Without this, even an Institution like PHFI which has a distinguished board tries to refuse the Indian citizen his enforceable fundamental right. Finally, the Commission ruled:

“PHFI is public authority u/s.2(h) of the RTI Act and directed the chairman of PHFI to appoint a Public Information Officer and a First Appellate Authority — as mandated under the RTI Act before 15 March 2012 and also ensure compliance with section 4 of the RTI Act.”

[Kishan Lal v. Director (Development & Strategy) Public Health Foundation of India, New Delhi, decision No. CIC/SG/C/2011001273/17356 complaint No. CIC/SG/C/2011/001273, decided on 14-2-2012]

shailesh.kwebmaker

PART C: Information on Around

Nexus between officers of BMC and professional complainants:

The alleged “criminal conduit” between executive engineer Ajit Karnik and local RTI activist Mukesh Kanakia was exposed by Municipal Commissioner, R.A. Rajeev after Ajit Karnik reportedly asked a Naupada-based doctor to pay Rs. 2.75 lakh to Kanakia to get him to withdraw his complaint about a nursing home being set up in a residential flat.

“It is a case of collusion. As an executive engineer, Karnik is tasked with the key role of scrutinising building plans, verifying legal papers and recommending sanctions for construction projects. He chose to act as a go-between for Kanakia and the doctor for which he would get his share of money,” Rajeev said.

The episode, however, has opened a Pandora’s Box of the goings-on in the town planning department which has been accused of being the hotbed of corruption in the Thane corporation. Mr. Rajeev suspended Mr. Karnik.

Information: Now More Powerful Than Money?

The Right To Information can help people get an answer from an unresponsive bureaucracy, but what if it could do more than that? Could it clean up the system? A study by two Yale political scientists show that this might just be true.

Leonid V. Peisakhin and Paul Pinto, two PhD candidates at Yale University’s department of political science, conducted a field experiment in a Delhi slum among residents who were trying to apply for a ration card. Peisakhin and Pinto found that putting in an application for ration card and then filing an RTI request checking on its status, was almost as effective as paying a bribe. Most significantly, when poor people filed an RTI request, it erased the class disadvantage they otherwise faced, and their applications were cleared as fast as those of middle class.

Gift to Foreign Guests:

The Government has spent Rs. 43.31 lakh on the Myanmar delegation that traveled to Delhi, Gurgaon and Mumbai.

The Speaker of the lower house of the Myanmar Parliament, Thura Shwe, was gifted a wooden elephant and all others with him took back dancing peacock statuettes worth Rs. 7,550; the total spend on the gifts to them was Rs. 1.11 lakh.

Similarly, Rs. 36.36 Lakh was spent during a goodwill visit of a German Delegation that journeyed to Delhi, Amritsar, Jodhpur and Mumbai. When a delegation from Cuba visited Delhi and Agra, the government spent Rs. 4.61 lakh on hosting them. “These were the years when the government had declared its austerity drive. But the RTI response reveals that millions of rupees were spent on putting up foreign dignitaries. All of them were flown to various parts of India and put up in five-star hotels,” said Agrawal. “One fails to understand why those who accompaning dignitaries cannot be put up in government guesthouses.”

Foreign trip of Sonia Gandhi:

The government spent Rs. 15.5 lakh on UPA chairperson Sonia Gandhi’s visit abroad between 2006 and 2011, according to data accessed through RTI.

In addition, Rs. 64.76 lakh was spent by Indian missions across the world on the SPG which travelled with Sonia.

Sonia is Z-plus security protectee with a high level of threat perception.

According to replies given by Indian mission to Hisar based RTI applicant Ramesh Verma, Sonia travelled to South Africa, China, Germany and Belgium, expenses for which were paid for by the government.

levitra

shailesh.kwebmaker

PART D: Read , understand & take some action please

Corruption is worse than prostitution

We have to sham this attitude of ‘Sab Chalta Hai’ and the attitude that nothing can move without Corruption.

— Kanwaljeet Arora, CBI judge

We need to keep up the fight against corruption which stifles innovation and is one of the biggest barriers to job creation and economic growth around the world.

— US President, Barack Obama

Please respond and let us do something to contain cancerous corruption which prevents happiness to be reality for large number of citizens.

RTI Clinic in August 2012: 2nd, 3rd and 4th Saturdays, i.e., 11th, 18th, and 25th, 11.00 a.m. to 13.00 p.m. at BCAS premises.

levitra

shailesh.kwebmaker

PART A: High Court Decision

The petitioner, President’s Secretariat, had preferred writ petition under Article 226 of the Constitution of India to assail the order dated 4th May, 2012 passed by the Central Information Commission, New Delhi, whereby the appeal preferred before it by the respondent had been allowed, and directions were issued to the petitioner, to provide information under the RTI Act sought by the respondent in relation to the donations made by the President from time to time. A direction was also issued to the petitioner to take steps to publish the details regarding the donations made i.e. the names of the recipients of the donations, their addresses and the amount of donation in each case, on the website of the President’s Secretariat at the earliest.

Information in relation to the donations made by the President from time to time was not disclosed by the President’s Secretariat by invoking section 8(1)(j) of the Act i.e. by treating the information as personal information, the disclosure of which was stated to be not in the public interest. CIC rejected the said defence of the petitioner and directed the disclosure of the information.

The submission of learned ASG Sh. A. S. Chandhiok firstly, was that the CIC has equated donations made by the President with subsidy, which is not the case. It was also submitted that the learned CIC has not dealt with the petitioner’s submissions founded upon section 8(1)(j) of the Act. It was also argued that the right to privacy of third parties would be breached, in case such disclosure is made. In any event, the right of third parties/recipients of the donation, to oppose disclosure by resorting to section 11 has not been dealt with. It was argued that the matter requires reconsideration, and the petition should be admitted for further hearing by the court.

A perusal of the impugned order, showed that the donations made by the President are out of public funds. Public funds are those funds which are collected by the State from the citizens by imposition of taxes, duties, cess, services charges, etc. These funds are held by the State in trust, for being utilised for the benefit of the general public.

The reliance was placed by the petitioner on the earlier decision of the CIC dated 18-12-2009, pertaining to the disclosure of information under the Act in relation to the Prime Minister’s Relief Fund. Commission had held that it has no relevance to the facts of the present case, assuming for the sake of argument that the said decision of the CIC takes the correct view. The Delhi High Court noted that it was concerned with the disclosure vis-à-vis the Prime Minister’s Relief Fund, and hence the said issue was not dealt in the present writ petition. The Court further noted: “In any event, unlike in the case of the Prime Minister’s Relief Fund, in the present case, the donations have been made by the Hon’ble President of India from the tax payers’ money. Every citizen is entitled to know how the money, which is collected by the State from him by exaction has been utilised. Merely because the person making the donations happens to be the President of India, is no ground to withhold the said information. The Hon’ble President of India is not immune from the application of the Act. What is important is, that it is a public fund which is being donated by the President, and not his/her private fund placed at his/her disposal for being distributed/donated amongst the needy and deserving persons.”

The learned ASG had submitted that the disclosure of information with regard to the donations made by the President would impinge on the privacy of the persons receiving the donations, as their financial distress, other circumstances, and need would become public. The Court responded:

“I do not find any merit in the aforesaid submission of the learned ASG. Firstly, I may note that the learned CIC has directed disclosure of some basic information, such as the names of the recipients of the donations, their addresses and the amount of donation made in each case. Further details i.e. the facts of each case, and justification for making donation, have not been directed to be provided. Even if further details are sought by a querist in relation to any specific instance of donation made by the President, the same would have to be dealt with in terms of the Act. There could be instances where the entire details may not be disclosed by resorting to section 8, 10 and 11 of the Act. However, it cannot be said that mere disclosure of the names, addresses and the amounts disbursed to each of the donees would infringe the protection provided to them u/s. 8(1)(j) of the Act.”

“The donations made by the President of India cannot be said to relate to personal information of the President. It cannot be said that the disclosure of the information would cause unwarranted invasion of privacy of, either the President of India, or the recipient of the donation. A person who approaches the President, seeking a donation, can have no qualms in the disclosure of his/her name, and address, the amount received by him/her as donation or even the circumstance which compelled him or her to approach the First Citizen of the country to seek a donation. Such acts of generosity and magnanimity done by the President should be placed in the public domain as they would enhance the stature of the office of the President of India. In that sense, the disclosure of the information would be in the public interest as well.”

“The submission of Mr. Chandhiok that the learned CIC has confused donations with subsidy is not correct. The CIC has consciously noted that donations are being made by the President from the public fund. It is this feature which has led the learned CIC to observe that donations from out of public fund cannot be treated differently from subsidy given by the Government to the citizens under various welfare schemes. It cannot be said that the CIC has misunderstood donations as subsidies.”

“For all the aforesaid reasons, I find no merit in this petition and dismiss the same. The interim order stands vacated.”

[President’s Secretariat vs. Nitish Kumar Tripathi W.P. (C ) 3382/2012 dated 14-06-2012. Citation- RTIR IV (2012) 92 (Delhi) delivered by Vipin Sanghi. J]

levitra

shailesh.kwebmaker

PART A : DECISIONS OF THE COURTS

Section 5(3), (4) to (5) of the RTI Act

A very interesting and unusual matter came before the High Court of Delhi. The same is summarised as under:

“The petitioner challenged the order dated 16th January, 2009 of the Central Information Commission (CIC) imposing penalty u/s.20 of the Right to Information Act, 2005 on the petitioner of Rs. 12,500 deductible in two instalments of Rs.6,250 each from the salary of the petitioner, starting from 3rd March 2009. The petition came up before the Court first on 2nd March, 2009, but no stay was granted. The petitioner on 14th December, 2009 informed that the penalty amount had been paid to the CIC and further submitted that the fault leading to the imposition of penalty was not in his functioning as the Public Information Officer (PIO) of the DDA, but of Shri S. C. Gupta, the then Dy. Director (Housing) of the DDA. It may be noticed that the CIC has vide the impugned order, while levying penalty of Rs.12,500 on the petitioner, levied penalty of Rs.12,500 on the said S. C. Gupta also, deductible from his salary. On the said contention of the petitioner, the said Shri S. C. Gupta was impleaded as respondent No. 4 to the petition and in fact he alone has been served with the notice of petition.”

“It is the case of the petitioner that he, as PIO of DDA had acted with promptitude and has on the very next day of receiving the RTI application, sought information from the respondent No. 4 and the delay in providing information was of the respondent No. 4. It is further the case of petitioner that in pursuance to the directions of the First Appellate Authority to provide further information also, the delay in providing the same was of the said Shri S. C. Gupta.”

The CIC however has in the order dated 16th January, 2009 impugned in this petition held that it had in the earlier order dated 26th September, 2008 (which is not before the Court) held that it is the not the delay in response for which the petitioner had been held liable, but the petitioner had failed to provide the information sought and had simply forwarded a report to the information seeker without caring to examine whether the report even addressed the information sought. It was thus held that the petitioner had abdicated his responsibility as PIO. It was further held that the petitioner as the PIO of the DDA was responsible for providing the information and what was being passed on. The said conduct of the petitioner was held to be amounting to deemed refusal of information.

The Court stated:

“It is not in dispute that the petitioner was the designated PIO u/s.5 of the Act of the DDA. U/s.5(3) of the Act it was for the petitioner to deal with the request and render reasonable assistance to the information seeker. The PIO u/s.5(4) is authorised to seek the assistance of any other officer as may be considered necessary for the purpose of providing information and section 5(5) mandates such officers to render all assistance to the PIO. Section 5(5) also deems such officers from whom information is sought, as the PIO for the purpose of any contravention of the provisions of the Act.”

“The contention of the petitioner appears to be that he as PIO was merely required to forward the application for information to the officer concerned and/or in possession of the said information and upon receipt of such information from the concerned officer furnish the same to the information seeker. He would thus contend that as long as he as PIO has acted with promptitude and forwarded the application to the officer in possession of the information and furnished the same to the information seeker immediately on receipt of such information, he cannot be faulted with and liability for penalty if any has to be of such other officer from whom he had sought the information and cannot be his.” “The argument aforesaid reduces the office of the PIO to that of a Post Office, to receive the RTI query, forward the same to the other officers in the department/administrative unit in possession of the information, and upon receipt thereof furnish the same to the information seeker. It has to be thus seen from a perusal of the Act, whether the Act envisages the role of a PIO to be that of a mere Post Office.”

The Court then provided definition of ‘dealt with’. In Karen Lambert v. London Borough of Southwark, (2003) EWHC 2121 (Admin) it was held to include everything right from receipt of the application till the issue of decision thereon. U/s. 6(1) and 7(1) of the RTI Act, it is the PIO to whom the application is submitted and it is he who is responsible for ensuring that the information as sought is provided to the applicant within the statutory requirements of the Act. Section 5(4) is simply to strengthen the authority of the PIO within the department; if the PIO finds a default by those from whom he has sought information, the PIO is expected to recommend a remedial action to be taken. The RTI Act makes the PIO the pivot for enforcing the implementation of the Act.

The Court further noted

“This Court in Mujibur Rehman v. Central Information Commission held that information seekers are to be furnished what they ask for and are not to be driven away through filibustering tactics and it is to ensure a culture of information disclosure that penalty provisions have been provided in the RTI Act. The Act has conferred the duty to ensure compliance on the PIO. He cannot escape his obligations and duties by stating that persons appointed under him had failed to collect documents and information; that the Act as framed casts obligation upon the PIO to ensure that the provisions of the Act are fully complied. Even otherwise, the settled position in law is that an officer entrusted with the duty is not to act mechanically. The Supreme Court as far back as 1995 in Secretary, Haila Kandi Bar Association v. State of Assam, [1995 supp. (3) SCC 736] reminded the high-ranking officers generally, not to mechanically forward the information collected through subordinates. The RTI Act has placed confidence in the objectivity of a person appointed as the PIO and when the PIO mechanically forwards the report of his subordinates, he betrays a casual approach shaking the confidence placed in him and duties the probative values of his position and the report.”

The Court finally held

“Thus no fault can be found with order of the CIC apportioning the penalty of Rs.25,000 equally between the petitioner and the respondent no. 4. There is thus no merit in the petition; the same is dismissed.”

[J. P. Agrawal v. Union of India and Ors., W.P. (C) 7232/2009, decided on 4-8-2011. Reported in Right to Information Reporter — RTI RI (2012) 353 (Delhi)]

Section 8(1)(d)&(a) of the RTI Act

Two writ petitions were heard together, since common arguments were canvassed and common questions are involved, they were disposed of by this judgment.

The petitioner functions as service provider to the Government of Maharashtra. It provides the facility of Smart Card-based Registration Certificate. It is stated that considering the need for computerisation, the Government switched over to the latest technology in its various departments. In the transport sector, the Government aimed at modernising the Regional Transport Offices which was aimed at streamlining the entire process undertaken at these offices and obviously to make functions of these Regional Transport Offices efficient, prompt and easy. In this backdrop, the Central Government took a policy decision to introduce ‘Smart Card’ with micro processor chip and it was decided to permit the use of Smart Cards for issuing registration certificates in electronic form. It is stated that this micro processor chip-based Smart Card obviously has various advantages over the regular paper-based registration books. A reference is made to the Central Government’s guidelines issued on 17-10-2001. The implementation of this policy required amendments to the Motor Vehicles Act and Rules and therefore, the amendments were made on 31-5-2002 and Rule 2(s) was added to define the term ‘Smart Card’. It is stated that the registration certificate is now issued to the motor vehicle owners in the form of Smart Cards and thereafter, several provisions of the Motor Vehicles Act have been referred to. It was submitted that the Government of Maharashtra floated a PAN India tender for appointing a service provider to comply with requirement of issuance of ‘Smart Cards’. The petitioner participated in the tender process and was declared successful. A contract dated 30-11-2002 came to be executed. It is stated it is not an ordinary contract, but it is an outcome of exhaustive statutory project. The project which the petitioner is implementing must be seen in the backdrop of the policy decision of the Government to provide a more standardised and tamper-proof registration of the vehicles. The policy of the Government is to adopt a technology which will prevent tampering of registration books by the anti-social elements. It is stated that this contract is confidential in nature. The project has been undertaken by the petitioner, but attempts are made to exploit the petitioner for personal gains by various unscrupulous elements. The RTI Act, according to the petitioner, does not give an absolute right to a person to obtain any informa-tion and it is therefore, contended that Shri Sanjay Bhole, the respondent No. 4’s attempt to obtain the information must be seen in this light.

SCIC in its order had directed the Transport Commission to furnish the information requested for. The same is challenged in this writ petition. While the Court agreed that clause (a) of section 8(1) is in no way applicable. However, as to clause (d), order notes:

“Clause (d) provides that the information can be disclosed if the competent authority is satisfied that larger public interest warrants such disclosure. Therefore, that clause as admitted by (Advocate of the appellant) Mr. Manohar is not absolute. It does not say that information including commercial confidence, trade secrets or intel-lectual property, the disclosure of which, would harm the competitive position of a third party; cannot be demanded or if demanded, cannot be disclosed even if larger public interest warrants the same. The State Information Commissioner has held that the disclosure of both agreements would not result in disclosure of trade secret or intellectual property. His conclusion is that the tenders were for an important work which affects large number of vehicle owners and drivers of vehicles. The agreements have to be entered into for providing a service in the form of making of Smart Cards for registration of motor vehicles and driving licences at enhanced fees. Further, the conclusion is that the disclosure of information would enable public scrutiny of the process and contracts and therefore, it is desirable in larger public interest that the information is provided.”

Final Order

“In the light of this conclusion, both writ petitions fail. Rule is discharged, but without any order as to costs. At this stage, it is prayed that the ad interim orders passed by this Court be continued so as to enable the petitioners to challenge this judgment in higher court. This request is opposed by the respondent No. 4. In such circumstances, the request made to continue the ad interim orders is rejected and particularly, when the information as directed to be given under the impugned orders is as early as on 23-3-2011.”

[Writ petitions No. 2912 & 3137 of 2011, Shonkh Technology Ltd. & United Telecom Ltd. v. Shri Sanjay Bhole & State IC, Joint Transport Commissioner & PIO decided on 1-7-2011: (‘Information Decisions’ 2012 (1) ID 268) Bombay High Court]

shailesh.kwebmaker

PART A : Decision of CIC & Supreme Court

Personal Information, section 8(1)(j) of the RTI Act, 2005

CPIO vide letter dated 21.12.2010 stated that information relating to PAN and other information relating to PAN such as address, documents submitted as proof of identity and address is personal information of the PAN holder and subject to confidentiality u/s. 138 of IT Act. Moreover, the information submitted by applicant along with PAN application form is held by the department in a fiduciary capacity and is of a personal nature, hence exempt from disclosure u/s. 8(1)(e) and 8(1)(j) unless the competent authority is satisfied that larger public interest warrants disclosure of such information. The CPIO also quoted several CIC orders including the case of Ms. Anumeha dated 29.04.2008.

Decision:
The information sought is of a personal nature. CPIO had issued a notice u/s. 11(1) and the Globe Transport Corporation had urged the CPIO not to share any personal information with the appellant. The Commission agrees with the stand taken by the CPIO/AA that the information sought is exempt from disclosure u/s. 8(1)(j) of the RTI Act.

[H K Sharma vs Income Tax Department, New Delhi: CIC/DS/A/2011/001229/RM: Decision dated 08-06-2012]

Facts:

Vide RTI application dated 14-10-2010, the appellant had sought certified copies of IT returns and supporting documents filed by Hrishikesh Gaderia during the last 20 years.

CPIO vide his letter dated 11-11-2010 informed the appellant that a notice u/s. 11(1) had been served on Shri Gaderia, who had opposed sharing of any information pertaining to his IT returns etc. Shri Gaderia had submitted that “the applicant has no right to demand any personal information or any information relating to his business. The information in respect of his business, insurance paid and information in respect of taxes paid is confidential and personal in nature and hence may not be supplied to the applicant, as there will be heavy financial and business loss, if this information is supplied to the applicant or to any third person”. The CPIO held that information furnished to the IT department is strictly in trust, being in fiduciary capacity and no public interest is involved. In view of the above, the CPIO denied information u/s. 8(1)(d), 8(1)(e) and 8(1)(j).

Decision:
In the case of Milap Choraria dated 15-06.2009, a Full Bench of the CIC had upheld the decision of the CPIO and AA in holding that the Income Tax Returns are ‘personal information’ exempted from disclosure u/s. 8(1)(j) of the RTI Act. In the instant case, the AA has correctly applied exemption u/s. 8(1)(j) of the RTI Act from disclosure of information. The decision of the AA is therefore upheld.

[Farid Shaikh vs Income Tax Department, Thane: CIC /DS/A/2011/001338/RM: Decision dated 21.06.2012]

Facts:
Applicant submitted RTI application dated 31st May 2011 before the CPIO, United India Insurance Co. Ltd., Aliganj, Lucknow to obtain information broadly through five points pertaining to time gap between date of issue of policy bond and date of transfer of the policy bond to the TPA along with copy of the agreement between Company and the TPA.

Decision
After hearing both parties and on perusal of the facts on record the Commission directed as follows:

Point 1: With reference to the information sought under this point by the appellant, we find that it is necessary to strike a fine balance between disclosure of information in larger public interest and simultaneously ensure that the privacy of the policy holder is protected as per the provisions of section 8(1)(j). Therefore, Commission directs the CPIO to provide the appellant with the total number of Mediclaim policies which were dispatched to the TPA after one week of the date of issue.

Point 2: Respondent to provide the appellant with a copy of the agreement between United India Insurance Co. and E-Meditak (TPA) Services Ltd., Gurgaon.

Point 3: Appellant insists on having specific information and is not satisfied with the term “immediately”. Accordingly, respondent is directed to provide the appellant with copy of the Company’s rule governing this issue.

Information as above to be provided within one week of the order.

Commission is satisfied that the subject matter of this RTI application pertains to an issue of larger public interest in that, it touches upon that moment in the life of the insured when he is suffering from ill health and requires urgent support from the umbrella provided to him through the Mediclaim policy taken by him. Therefore, under the provisions of section 4, section 8(2) and section 25(5) of the RTI Act, Commission recommends to CMD, Head Office, United India Insurance Co. Ltd., Chennai to give directions to all Branch Managers to put up on the Company’s website the following information:

i) Number of the Mediclaim policies (no names are required to be given).

ii) Date of issue of Mediclaim Policy Bond.

iii) Date of transfer of the said policy bond to the TPA.

CPIO, Head Office is directed to follow up on this matter. Compliance be done by 16th August 2012. Such disclosure will undoubtedly strengthen the safety net to the insured and also cement the relationship of trust between the Insurance Company and insured, thereby strengthening the foundation of the Insurance Industry. Since this is a matter of larger public interest, using this as test case, Commission will review compliance of this order on 28.8.2012 at 3.00 PM at NIC Video conferencing, Room No. 110, 1st Floor, Yojana Bhavan, No 9, Sarojini Naidu Marg, Lucknow-22 6001 (UP), Contact Officer Mr Diwan Singh, Scientist-D and Contact Nos: 0522-2238059/2298822/2298823 on which date respondent CPIO is directed to appear before the Commission via video conferencing.

[Dr Anshu Agrawal vs United India Insurance Co Ltd: CIC/DS/A/2011/003245: Decision dated 28.06.2012]

Facts:

The Petitioner had submitted an application on 27.8.2008 before the Regional Provident Fund Commissioner (Ministry of Labour, Government of India) calling for various details relating to third respondent, (i.e. Mr. Lute) who was employed as an Enforcement Officer in Sub-Regional Office, Akola, now working in the State of Madhya Pradesh. As many as 15 queries were made to which the Regional Provident Fund Commissioner, Nagpur gave the following reply on 15.9.2008:

“As to Point No.1: Copy of appointment order of Shri A.B. Lute, is in three pages. You have sought the details of salary in respect of Shri A.B. Lute, which relates to personal information, the disclosures of which has no relationship to any public activity or interest, it would cause unwarranted invasion of the privacy of individual, hence denied as per the RTI provision u/s. 8(1) (j) of the Act.

As to Point 2: Copy of order of granting Enforcement Officer Promoting to Shri A. B. Lute, is in 3 Number. Details of salary to the post along with statutory and other deductions of Mr Lute is denied to provide, as per RTI provisions u/s. 8(1)(j) for the reason’s mentioned above

As to Point No. 3: All the transfer orders of Shri A. B. Lute, are in 13 Number. Salary details is rejected.

As to Point No. 4: The copies of memo, show cause notice, censure issued to Mr Lute, are not being provided on the ground that it would cause unwarranted invasion of the privacy of the individual and has no relationship to any public activity or interest.

As Point No. 5: Copy of EPF (Staff & Conditions) Rules 1962 is in 60 pages.

As Point No. 6: Copy of return of assets and liabilities in respect of Mr. Lute cannot be provided.

As to Point No. 7: Details of investment and other related details are rejected.

As to Point No. 8: Copy of report of item wise and value wise details of gifts accepted by Mr. Lute is rejected.

As to Point No. 9: Copy of details of movable, immovable properties of Mr Lute, the request to provide the same is rejected.

As Point No. 10, 11& 12 are not relevant, are not covered here.

As to Point No. 13: Certified True copy of complete enquiry proceeding initiated against Mr. Lute – It would cause unwarranted invasion of privacy of individuals and has no relationship to any public activity or interest.

As to Point No. 14: It would cause unwarranted invasion of privacy of individuals and has no relationship to any public activity or interest.

As to Point 15: Certified true copy of second show cause notice – would cause unwarranted invasion of privacy of individuals and has no relationship to any public activity or interest.

Aggrieved by the said order, the petitioner approached the CIC. The CIC passed the order on 18.6.2009, the operative portion of the order reads as under:

“The question for consideration is whether the aforesaid information sought by the Appellant can be treated as ‘personal information’ as defined in clause (j) of section 8(1) of the RTI Act. It may be pertinent to mention that this issue came up before the Full Bench of the Commission in Appeal No.CIC/ AT/A/2008/000628 (Milap Choraria v. Central Board of Direct Taxes) and the Commission vide its decision dated 15.6.2009 held that “the Income Tax return have been rightly held to be personal information exempted from disclosure under clause (j) of section 8(1) of the RTI Act by the CPIO and the Appellate Authority, and the appellant herein has not been able to establish that a larger public interest would be served by disclosure of this information. This logic would hold good as far as the ITRs of Shri Lute is concerned. I would like to further observe that the information which has been denied to the appellant essentially falls in two parts – (i) relating to the personal matters pertaining to his services career; and (ii) Shri Lute’s assets & liabilities, movable and immovable properties and other financial aspects. I have no hesitation in holding that this information also qualifies to be the ‘personal information’ as defined in clause (j) of section 8(1) of the RTI Act and the appellant has not been able to convince the Commission that disclosure thereof is in larger public interest.”

The CIC, after holding so, directed the second respondent to disclose the information at paragraphs 1, 2, 3 (only posting details), 5, 10, 11, 12, 13 (only copies of the posting orders) to the appellant within a period of four weeks from the date of the order. Further, it was held that the information sought for with regard to the other queries did not qualify for disclosure.

Aggrieved by the CIC’s said order, the petitioner filed a writ petition No.4221 of 2009, which came up for hearing before a learned Single Judge and the court dismissed the same vide order dated 16.2.2010. The matter was taken up by way of Letters Patent Appeal No.358 of 2011 before the Division Bench and the same was dismissed vide order dated 21.12. 2011. Against the said order, this special leave peti-tion has been filed. Supreme Court passed the following order:

“We are, in this case, primarily concerned with the scope and interpretation to clauses (e), (g) and (j) of section 8(1) of the RTI Act.

We are in agreement with the CIC and the Courts below that the details called for by the petitioner i.e. copies of all memos issued to the third respondent, show cause notices and orders of censure/punishment etc. are qualified to be personal information as defined in clause (j) of section 8(1) of the RTI Act. The performance of an employee/ officer in an organisation is primarily a matter between the employee 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 would cause unwar-ranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed, but the petitioner cannot claim those details as a matter of right”.

“The details disclosed by a person in his income tax returns are “personal information” which stand exempted from disclosure under clause (j) of section 8(1) of the RTI Act, unless it involves a larger public interest and the Central Public Information Officer or the State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information”.

“The petitioner in the instant case has not made a bona fide public interest in seeking information, the disclosure of such information would cause unwarranted invasion of privacy of the individual u/s. 8(1)(j) of the RTI Act”.

“We are, therefore, of the view that the petitioner has not succeeded in establishing that the information sought for is for the larger public interest. That being the fact, we are not inclined to entertain this special leave petition. Hence, the same is dismissed”.

[Girish Deshpande vs CIC and others: Special Leave Petition (Civil) No 27734 of 2012: Order dated 03.10.2012]

shailesh.kwebmaker

PART A : Orders of CIC

Information: Section 2(f) of the RTI Act

Information is defined u/s 2(f) as under:

“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.

Four orders on various points connected with “Information” are briefly reproduced hereunder:

The applicant in most of his queries, wanted to know about the reasons why the Central Vigilance Officers (CVOs) of a number of Public Sector Undertakings (PSUs) are not working/ functioning – he has assumed that the CVOs of PSUs are not functioning properly and wants the CPIO of the CVC to provide the reasons – the Commission held that the right to information cannot be used to seek either confirmation or rebuttal of one’s personal assumption, as in this case. Information has been defined in section 2(f) to mean any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars etc. Wherever a citizen seeks any information, it must be contained in some records or file or documents in the possession of the public authority concerned. Therefore, the response of the CPIO of the CVC and other CPIOs, as well as that of the Appellate Authority appears to be absolutely in order.

[Omprakash Kashiram vs CPIO, Central Vigilance Commission – Order dated 12.03.2012 Citation: RTI III (2012) 140 (CIC)] l

Appellant submitted RTI application dated 14th August 2010 before the CPIO, Prime Minister’s Office, New Delhi, seeking the details of functioning of Punjab and Sindh Bank through 44 points.

Decision Notice
The Commission notices that the Appellant has not asked for any specific information in his RTI Application and/or second appeal to the Commission, to be given by the Respondent Public Authority.

The Appellant was given an opportunity to explain the precise information sought, but has chosen not to attend the hearing. Also, the Appellant has not provided a copy of the Second appeal to the Respondents as per the RTI Act.

Thus, based on the submissions of the Respondents, the Commission is satisfied that information as held by the Respondents has been provided to the Appellant.

The Commission through this Order would also like to highlight the abuse of Transparency Act by the Appellant in asking voluminous questions under the Act (44 questions in this case) from the Public Authority and thereby dissipating the scarce resources of the Public Authority without meeting any larger public interest objective.

The Supreme Court in the case Central Board of Secondary Education & Anr v Aditya Bandopadhyay & Ors/ CIVIL APPEAL NO. 6454 OF 2011 [RTIR II (2011) 242 (SC)], has stated:

“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 collection 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”.

The Commission, in the light of the above observation made by the Hon’ble Supreme Court, would like to inform the Appellant to ask a specific and limited question under the RTI Act, 2005 in the future and to use his cherished right given under the Transparency Act with greater responsibility.

[Kundan Kumar Sinha vs Department of Financial Services, New Delhi – Order dated 26.04.2012: Citation: RTIR II (2012) 185 (CIC)]

Briefly, the fact that emerged during the hearing is that the appellant was in the post of Sr. Assistant in the pay-scale of Rs. 6,300/-. The post of Jr. Engineer was advertised in the scale of Rs. 8,000/-. The appellant was selected for the post of Sr. Assistant. Before he joined, the post was down-graded to the scale of Rs. 6,300/-. The appellant after having joined the new post, has certain issues regarding promotion in that cadre.

Having heard the submissions of the parties, the Commission observes that the appellant has grievances regarding the pay scale. The RTI is not the forum for redressal of grievances. The appellant, in case he so desires, may file his grievance petition before the competent authority. As far as providing information under the RTI Act is concerned, requisite information as per record and permissible under the RTI Act has been provided to the appellant by the respondent.

[Vipin Prakash vs Airports Authority of India – Order dated 23.03.2012: Citation: RTIR II (2012) 150(CIC)]

Background
The Applicant filed his RTI application on 24.12.2010 with the PIO Railway Board stating that his pay fixation has been done incorrectly and requesting the PIO to rectify the same. He also sought a copy of the pay fixation chart of his Junior, one Mr Ram, who is drawing a higher salary than him. The PIO provided some information, dissatisfied with which the Applicant filed his first appeal seeking the rule based on which his salary was fixed. The Appellate Authority disposed off the appeal on 6.09.2011 holding that information provided is complete and as available in the records. The Applicant thereafter filed his second appeal stating that he is not satisfied with the information.

Decision
The Appellant requested the Commission during the hearing to direct the public Authorities to fix his pay correctly. The Commission, however, holds that the Appellant is not seeking any information as available in the records and therefore the relief being sought by him cannot be granted. It is however, recommended that the PIO clarify to the Appellant about how his pay has been fixed based on the 6th Pay Commission recommendations and also to provide him with a copy of his pay fixation chart preferably by 15th May 2012.

The appeal is disposed of with the above recommendation and the case is closed.

[Rajendra Singh vs Bhavan, New Delhi-Order dated 11.04.2012:Citation: RTIR II (2012) 177 (CIC)]

levitra

shailesh.kwebmaker

PART A : JUDGMENT OF THE SUPREME COURT

RTI operation being annihilated: On 13th September, 2012, the Supreme Court of India (SC) delivered a judgment which, though a landmark on the subject of RTI, has nearly stopped the operation of RTI at various Commissions. It is a judgment running into 107 para. First, nearly 50 pages analyse the RTI Act. Some of the paragraphs/ sentences therein are:

The value of any freedom is determined by the extent to which the citizens are able to enjoy such freedom. Ours is a constitutional democracy and it is axiomatic that citizens have the right to know about the affairs of the Government which, having been elected by them, seeks to formulate some policies of governance aimed at their welfare. However, like any other freedom, this freedom also has limitations. It is a settled proposition that the Right to Freedom of Speech and Expression enshrined under Article 19(1)(a) of the Constitution of India (for short ‘the Constitution’) encompasses the right to impart and receive information. The Right to Information has been stated to be one of the important facets of proper governance. With the passage of time, this concept has not only developed in the field of law, but also has attained new dimensions in its application. The legal principle of ‘A man’s house is his castle. The midnight knock by the police bully breaking into the peace of citizen’s home is outrageous in law’, stated by Edward Coke has been explained by Justice Douglas as follows: “The free State offers what a police state denies- the privacy of the home, the dignity and peace of mind of the individual. That precious right to be left alone is violated once the police enter our conversations.”

The foundation of the power of judicial review, as explained by a nine-judge’s Bench in the case of Supreme Court Advocates on Record Association & Ors vs Union of India [(1993) 4 SCC 441], is the theory that the Constitution which is the fundamental law of the land, is the ‘will’ of the ‘people’, while a statute is only the creation of the elected representatives of the people; when, therefore, the ‘will’ of the legislature as declared in the statute, stands in opposition to that of the people as declared in the Constitution – the ‘will’ of the people must prevail. It is the Constitution which is Supreme in India and not the Parliament.

Certain principles have often been reiterated by this Court, while dealing with the constitutionality of a provision or a statute. Even in the case of Atam Prakash v. State of Haryana & Ors. [(1986) 2 SCC 249] the Court stated that whether it is the Constitution that is expounded or the constitutional validity of the constitution as a statute that is considered, a cardinal rule is to look to the preamble of the guiding light and to the Directive Principles of State Policy as the Book of Interpretation. The Constitution being sui generis, these are the factors of distant vision that help in the determination of the constitutional issues.

The freedom of speech is the lifeblood of democracy. It is a safely valve. ? Justice V R Krishna Iyer in his book “Freedom of Information” expressed the view: “The right to information is a right incidental to the constitutionally guaranteed right to freedom of speech and expression. The international movement to include it in the legal system gained prominence in 1946 with General Assembly of the United Nations declaring freedom of information to be a fundamental human right and a touchstone for all other liberties. Article 19 of the Universal Declaration of Human Rights says:

“Everyone has the right to freedom of information and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” It may be a coincidence that Article 19 of the Indian Constitution also provides every citizen the right to freedom of speech and expression. However, the word ‘information’ is conspicuously absent. But, as the highest Court has explicated, the right of information is integral to freedom of expression. The Court then dealt with scheme of the Act of 2005 (comparative Analysis of Act of 2002 and Act of 2005) To restrict the length of the Article, though very interesting, the same is not being reported here.

The Court then dealt with the writ matter of validity of the provisions under the RTI Act pertaining to appointment of the Central Information Commissioners (section 12) and of the State Information Commissioners (section 15).

“In order to examine the constitutionality of these provisions, let us state the parameters which would finally help the Court in determining such questions”.

The Court stated:

“The Courts would preferably put into service the principle of ‘reading down’ or ensure the attainment of the object of the Act. These are the principles which clearly emerge from the consistent view taken by this Court in its various pronouncements.”

Four issues framed by the supreme court in para 44 were as under:

To examine the constitutionality of sections 12 and 15 of the RTI Act, the Supreme Court framed the following issues, viz.,

a. Whether the law under challenge lacks legislative competence?

b. Whether it violates any Article of Part III of the Constitution, particularly Article 14?

c. Whether the prescribed criteria and classification resulting therefrom is discriminatory, arbitrary and has no nexus to the object of the Act? and

d. Whether a legislative exercise of power which is not in consonance with the constitutional guarantees and does not provide adequate guidance makes the law just, fair and reasonable?

The Supreme Court then dwelt upon determination of the nature of Tribunals, Commissions and their functions in India and referred to the scenario prevalent in some other jurisdictions of the world.

The Supreme Court after analysing the scheme of the RTI Act discussed at length, the kind of duties and responsibilities that the Central Information Commissioner and the State Information Commissioners and other Information Commissioners are expected to perform, and the multifarious functions that the Information Commission is expected to discharge in its functioning, and observed as under:-

“Besides separation of powers, the independence of judiciary is of fundamental constitutional value in the structure of our Constitution. Impartiality, independence, fairness and reasonableness in judicial decision making are the hallmarks of the Judiciary. If ‘Impartiality’ is the soul of Judiciary, `Independence’ is the life blood of Judiciary. Without independence, impartiality cannot thrive, as this Court stated in the case of Union of India v. R. Gandhi, President, Madras Bar Association {(2010) 11 SCC 17}”

“The above detailed analysis leads to an ad libitum conclusion that under the provisions and scheme of the Act of 2005, the persons eligible for appointment should be of public eminence, with knowledge and experience in the specified fields and should preferably have a judicial background. They should possess judicial acumen and experience to fairly and effectively deal with the intricate questions of law that would come up for determination before the Commission, in its day-to-day working. The Commission satisfies abecedarians of a judicial tribunal which has the trappings of a court. It will serve the ends of justice better, if the Information Commission was manned by persons of legal expertise and with adequate experience in the field of adjudication. We may further clarify that such judicial members could work individually or in Benches of two, one being a judicial member while the other being a qualified person from the specified fields to be called an expert member. Thus, in order to satisfy the test of constitutionality, we will have to read into section 12(5) of the Act that the expression ‘knowledge and experience’ includes basic degree in that field and experience gained thereafter and secondly that legally qualified, trained and experienced persons would better administer justice to the people, particularly when they are expected to undertake an adjudicatory process which involves critical legal questions and niceties of law. Such appreciation and application of legal principles is a sine qua non to the determinative functioning of the Commission as it can tilt the balance of justice either way. Malcolm Gladwell said, “the key to good decision making is not knowledge. It is understanding. We are swimming in the former. We are lacking in the latter”. The requirement of a judicial mind for manning the judicial tribunal is a well accepted discipline in all the major international jurisdictions with hardly any exceptions. Even if the intention is to not only appoint people with judicial background and expertise, then the most suitable and practical resolution would be that a ‘judicial member’ and an ‘expert member’ from other specified fields should constitute a Bench and perform the functions in accordance with the provisions of the Act of 2005. Such an approach would further the mandate of the statute by resolving the legal issues as well as other serious issues like an inbuilt conflict between the Right to Privacy and Right to Information while applying the balancing principle and other incidental controversies. We would clarify that participation by qualified persons from other specified fields would be a positive contribution in attainment of the proper administration of justice as well as the object of the Act of 2005. Such an approach would help to withstand the challenge to the constitutionality of section 12(5)”

“As a natural sequel to the above, the question that comes up for consideration is as to what procedure should be adopted to make appointments to this august body. Section 12(3) states about the High-powered Committee, which has to recommend the names for appointment to the post of Chief Information Commissioner and Information Commissioners to the President. However, this section, and any other provision for that matter, is entirely silent as to what procedure for appointment should be followed by this High Powered Committee. Once we have held that it is a judicial tribunal having the essential trappings of a court, then it must, as an irresistible corollary, follow that the appointments to this august body are made in consultation with the judiciary. In the event, the Government is of the opinion and desires to appoint not only judicial members but also experts from other fields to the Commission in terms of section 12(5) of the Act of 2005, then it may do so, however, subject to the riders stated in this judgment. To ensure judicial independence, effective adjudicatory process and public confidence in the administration of justice by the Commission, it would be necessary that the Commission is required to work in Benches. The Bench should consist of one judicial member and the other member from the specified fields in terms of section 12(5) of the Act of 2005. It will be incumbent and in conformity with the scheme of the Act that the appointments to the post of judicial member are made ‘in consultation’ with the Chief Justice of India in case of Chief Information Commissioner and members of the Central Information Commission and the Chief Justices of the High Courts of the respective States, in case of the State Chief Information Commissioner and State Information Commissioners of that State Commission. In the case of appointment of members to the respective Commissions from other specified fields, the DoPT in the Centre and the concerned Ministry in the States should prepare a panel, after due publicity, empanelling the names proposed at least three times the number of vacancies existing in the Commission. Such panel should be prepared on a rational basis, and should inevitably form part of the records. The names so empanelled, with the relevant record, should be placed before the said High Powered Committee. In furtherance to the recommendations of the High Powered Committee, appointments to the Central and State Information Commissions should be made by the competent authority. Empanelment by the DoPT and other competent authority has to be carried on the basis of a rational criteria, which should be duly reflected by recording of appropriate reasons. The advertisement issued by such agency should not be restricted to any particular class of persons stated u/s. 12(5), but must cover persons from all fields. Complete information, material and comparative data of the empanelled persons should be made available to the High Powered Committee. Needless to mention that the High Powered Committee itself has to adopt a fair and transparent process for consideration of the empanelled persons for its final recommendation.

This approach is in no way innovative but is merely derivative of the mandate and procedure stated by this Court in the case of L. Chandra Kumar (supra) wherein the Court dealt with similar issues with regard to constitution of the Central Administrative Tribunal. All concerned are expected to keep in mind that the Institution is more important than an individual. Thus, all must do what is expected to be done in the interest of the institution and enhancing the public confidence. A three Judge Bench of this Court in the case of Centre for PIL and Anr. v. Union of India & Anr. [(2011) 4 SCC 1] had also adopted a similar approach and with respect we reiterate the same.

Giving effect to the above scheme would not only further the cause of the Act but would attain greater efficiency, and accuracy in the decision-making process, which in turn would serve the larger public purpose. It shall also ensure greater and more effective access to information, which would result in making the invocation of right to information more objective and meaningful.

For the elaborate discussion and reasons afore-recorded, we pass the following order and directions:

1. The writ petition is partly allowed.

2. The provisions of sections 12(5) and 15(5) of the Act of 2005 are held to be constitutionally valid, but with the rider that, to give it a meaningful and purposive interpretation, it is necessary for the Court to ‘read into’ these provisions some aspects without which these provisions are bound to offend the doctrine of equality. Thus, we hold and declare that the expression ‘knowledge and experience’ appearing in these provisions would mean and include a basic degree in the respective field and the experience gained thereafter. Further, without any peradventure and veritably, we state that appointments of legally qualified, judicially trained and experienced persons would certainly manifest in more effective serving of the ends of justice as well as ensuring better administration of justice by the Commission. It would render the adjudicatory process which involves critical legal questions and nuances of law, more adherent to justice and shall enhance the public confidence in the working of the Commission. This is the obvious interpretation of the language of these provisions and, in fact, is the essence thereof.

3. As opposed to declaring the provisions of section 12(6) and 15(6) unconstitutional, we would prefer to read these provisions as having effect ‘post-appointment’. In other words, cessation/termination of holding of office of profit, pursuing any profession or carrying any business is a condition precedent to the appointment of a person as Chief Information Commissioner or Information Commissioner at the Centre or State levels.

4. There is an absolute necessity for the legislature to reword or amend the provisions of section 12(5), 12(6) and 15(5), 15(6) of the Act. We observe and hope that these provisions would be amended at the earliest by the legislature to avoid any ambiguity or impracticability and to make it in consonance with the constitutional mandates.

5. We also direct that the Central Government and/ or the competent authority shall frame all practice and procedure related rules to make working of the Information Commissions effective and in consonance with the basic rule of law. Such rules should be framed with particular reference to section 27 and 28 of the Act within a period of six months from today.

6. We are of the considered view that it is an unquestionable proposition of law that the Commission is a ‘judicial tribunal’ performing functions of ‘judicial’ as well as ‘quasijudicial’ nature and having the trappings of a Court. It is an important cog and is part of the court attached system of administration of justice, unlike a ministerial tribunal, which is more influenced and controlled and performs functions akin to the machinery of administration.

7. It will be just, fair and proper that the first appellate authority (i.e. the senior officers to be nominated in terms of section 5 of the Act of 2005) preferably should be the persons possessing a degree in law or having adequate knowledge and experience in the field of law.

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 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.

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.

10. The appointment of the Information Commissioners at both levels should be made from amongst the persons empanelled by the DoPT in the case of Centre and the concerned Ministry in the case of a State. The panel has to be prepared upon due advertisement and on a rational basis as afore-recorded.

11. The panel so prepared by the DoPT or the concerned Ministry ought to be placed before the High-powered Committee in terms of section 12(3), for final recommendation to the President of India. Needless to repeat that the High Powered Committee at the Centre and the State levels is expected to adopt a fair and transparent method of recommending the names for appointment to the competent authority.

12. The selection process should be commenced at least three months prior to the occurrence of vacancy.

13. This judgment shall have effect only prospectively.

14. Under the scheme of the Act of 2005, it is clear that the orders of the Commissions are subject to judicial review before the High Court and then before the Supreme Court of India. In terms of Article 141 of the Constitution, the judgments of the Supreme Court are law of the land and are binding on all courts and tribunals. Thus, it is abundantly clear that the Information Commission is bound by the law of precedence, i.e., judgments of the High Court and the Supreme Court of India. In order to maintain judicial discipline and consistency in the functioning of the Commission, we direct that the Commission shall give appropriate attention to the doctrine of precedence and shall not overlook the judgments of the courts dealing with the subject and principles applicable, in a given case. It is not only the higher court’s judgments that are binding precedents for the Information Commission, but even those of the larger Benches of the Commission should be given due acceptance and enforcement by the smaller Benches of the Commission. The rule of precedence is equally applicable to intra appeals or references in the hierarchy of the Commission.

The writ petition is partly allowed with the above directions, however, without any order as to costs. [writ & petition (CIVIL) No. 210 of 2012 in the matter of Namit Sharma vs Union of India decided on 13.09.2012. The judgment was dictated by Swatanter Kumar and the other judge was A. K. Patnaik.]

shailesh.kwebmaker

Decisions of CIC

Part A : Decisions of CIC

Personal information — Sections 8(1)(j)

Mr. Shailesh Gandhi, Information Commissioner in Central Information Commission has delivered a few very significant decisions covering some of the basic issues under the RTI Act. The said issues have been major areas of conflict in the operation of the RTI Act and which have resulted in denial of information from the public authorities to the citizens. One such issue is the interpretation of section 8(1)(j) dealing with exemption of ‘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 an individual.

In this case, the applicant had sought certain information from the PIO of Government of NCT of Delhi, Home (General) Department in connection with issue of armed licences from January 2000 to December 2007. In reply, he was informed that no such records are managed by that department. The Appellate Authority, along with certain other observations, ruled that the information is exempt u/s.8(1)(j).

Before the CIC, the PIO claimed that the information could not be given as it would intrude on the privacy of the applicants and the provisions of section 8(1)(j) exempt providing such information.

CIC’s decision :

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 Section 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” must be interpreted to mean the information must have some relationship to 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. Applying for an arms licence certainly falls in this category. As a matter of fact Section 4 (1) (b) (xiii) requires a suo moto publishing of ‘particulars of recipients of concessions, permits or authorisations granted by it.’

Commenting on the phrase which states that releasing the information would lead to an unwanted intrusion of privacy, the decision states :

“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 on 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 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 expression or right to life are universal and therefore would apply uniformly in all countries. However, the concept of ‘privacy’ is related to 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 information which is routinely collected by the public authority and routinely provided by individuals, would not be an invasion on the privacy of an individual and there will only be a few exceptions to this rule which might relate to information which is obtained by a Public Authority while using extraordinary powers such as in the case of a raid or phone-tapping. The applicant for a licence or permit or authorisation gives information of his own volition since he does not regard giving of this information as an intrusion on his privacy.”

Based on the above reasoning, the CIC ruled that providing names of persons who applied for arms licences cannot be construed as an invasion of privacy and directed that information sought be provided.

On reading the full decision of this case, I am wondering whether it should be possible to get information on the return of income of any third party under the RTI Act. In Mumbai, in one famous case reported in this column a few years before, the Department had rejected the application/appeal when one Mrs. Hoosenalli sought the information on the returns of income of Applause Bhansali Films Pvt. Ltd, the producer of the film : ‘BLACK’ (see BCAJ, July 2006 and earlier issues).

[Mr. Jagvesh Kumar Sharma vs. Joint Secretary, Home & PIO, Home (General) Department, Government of NCT of Delhi : Decision No.CIC/WB/A/2008/00993/SG/2219, dated 16.03.2009].

Second case on section 8(1) (j) – Personal Information

Mr. Mahesh Kumar Sharma (MKS) sought information to get certified copies of the documents under which NOC had been issued to Zile Singh for getting water connection.

MKS claimed to be the son of said Mr. Zile Singh. Water connection is for the building which at the time of application was owned by Ms. Archana Sharma (Ms. A.S.). She is the daughter of Mr. Zile Singh. The PIO treated it as a third-party information and u/s.11 asked Ms. A.S. whether she has any objection in providing the information sought by Mr. MKS. It was objected by Ms. A.S., besides contesting the claim of Mr. MKS that he is the son of the late Mr. Zile Singh.

Contentions of Ms. A.S. for objecting to the disclosure of the information to Mr. MKS are :

1. The information has been given in a fiduciary relationship [Section 8(1)(e)].

2. Disclosing it would be an intrusion on her privacy [section 8(1)(j)].

3. Third party has the right to refuse to divulge with information relating to him and unless a large public interest can be established, the information will not be disclosed.

She also sought to justify her claim for denial of information by taking support from the judgment of the High Court of Gujarat, in Reliance Industries Ltd. vs. Gujarat State Information Commission & Others (covered in this column in Nov. & Dec. 2007 and January 2008). The Commission dealt with the above 3 grounds of objection as under:

o The information has been given in a fiduciary relationship. The third party is invoking the protection of Section 8(1)(e) of the RTI Act:

A fiduciary relationship is one where the key element is that the relationship is principally characterised by trust and the information is given for use only for the benefit of the giver. Here the information has been given as per the rules to get an authorisation to get a water connection from a public authority. The traditional definition of a fiduciary is a person who occupies a position of trust in relation to someone else, therefore requiring him to act for the latter’s benefit within the scope of that relationship. In business or law, we generally mean someone who has specific duties, such as – those that attend a particular profession or role, e.g., financial analyst or trustee. In the instant case a key element of the relationship between the applicant for a water connection and the Delhi [al Board certainly cannot be said to be primarily of trust by the applicant in the public authority, nor can it be said that the information was given for the benefit of the giver. The information was provided to get an authorisation for a water connection. Accordingly, this submission has no merit.

Disclosing it would be an intrusion on her privacy:

The third party is invoking the protection of Section 8(1)(j) of the RTI Act. On this point, same paras are stated as in the Order in the case reported as above dated 16th March 2009. Accordingly, this submission also has no merit.

Third party has the right to refuse to divulge information relating to him, and unless a larger public interest can be established, the information will not be disclosed :

No legal provision has been cited.

We will now look at the main contentions relied upon by the third party from the judgement of the Hon’ble Gujarat High Court:

a) It is necessary that a larger public interest must be justified and the purpose of the applicant and his profile and credentials looked at.

b) The Public Information Officer is charged with the duty to ensure that the Right does not become a tool in the hands of a busy body.

Right to Information is a fundamental right of citizens. The Act has elegantly and crisply defined its objective in Section 3 where it states “Subject to the provisions of this Act, all citizens shall have the right to information.”

The test of public interest is to be applied to give information, only if any of the exemptions of Section 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 larger Public interest, unless an exemption is held to be valid. Insofar as looking at the credentials of the applicant is concerned, the lawmaker has categorically stated in Section 6(2), “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.” Thus, 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. Truth remains 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 to. Hence, we respectfully disagree with the contention of the Hon’ble Gujarat High Court.

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 the rule of law. The citizen needs to give no reasons nor are his credentials to be checked for giving the information. If the third party objects to giving the information, the Public Information Officer must take his objections and see if any of the exemption clauses of Section 8(1) apply. If any of the exemption clauses apply, the PIa is then obliged to see if there is a larger public interest in disclosure. If none of the exemption clauses apply, information has to be given.

The third party’s objections made before the Commission about the exemptions of Section 8(1)(e)& (j)are disallowed. Hence, the information would have to be given.

[Mr. Mahesh Kumar Sharma vs. PI~, Delhi Jal Board, Govt. of NeT of Delhi: Decision No CIC/ AT / A/ 2008/01262/SG/2109 of 27.02.2009].

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.

In previous three issues of BCAJ, 7 items have been reported:

Level of awareness
Use and misuse of the RTI Act
Reduction of 20-year period for keeping documents
Voluntary disclosures
Changes in Section 8
Penalties
Use of the RTI Act and refusal of information

Now three more items are being reported:

Grievance redressal

We believe that there is an urgent need to set up statutory public grievance commissions across the country, which have powers to redress grievances and to punish errant officials. A working model can be seen in Delhi, though it has limited powers. A draft legislation for such commissions has also been circulated by people’s movements to the Government.

Perhaps equally important, there is urgent need to take cognisance of the fact that RTI applicants, especially those belonging to the poorer and weaker segments of society, are being threatened, beaten and even killed for seeking information. RTI applicants and activists have been beaten up in many parts of the country, including Delhi. Efforts to dissuade people from exercising their fundamental right to information are a violation of both the spirit and the letter of the RTI Act. Therefore, Information Commissions should set up a system by which complaints of threats and violence related to the RTI are received and conveyed to the relevant authorities, and the action taken monitored and reported to the recommended RTI Council.

Application fee

We believe it is a good idea to have an application fee as it gives a greater sense of ownership to the applicant, and results in better recording of applications by public authorities, because of the necessity of issuing money receipts. However, we do not think that the amount should be raised above Rs. 10 for the moment. It would, along with penalties need to be subsequently revised upwards to reflect inflation.

Raising the fee would adversely affect the ability of the poor, many of whom do not have a BPL card even though they eminently deserve one to exercise their right to information. The belief that a higher fee might deter those who file a large number of applications is misconceived. Our study shows that most of these multiple applicants belong to urban areas and are relatively well off. It is, therefore, unlikely that even doubling or tripling the fee would discourage them, even if discouraging them were a desirable objective. However, raising the fee would certainly make it difficult for many of the poor to seek information.

Strengthening the RTI Act

At this point of the Act the most important step required from the Government is to ensure that there are extensive awareness campaigns and that all PIOs are trained and oriented to servicing the Act. Our study suggests that a large proportion of the PIOs are not trained in the RTI.Even those who have been trained need further training and need support materials like manuals and guides. Our study also revealed that over a third of the PIOsdid not even have a copy of the RTI Act.

There also needs to be regular monitoring of the functioning of the RTI Act. Towards this end, the Government needs to urgently set up a National Council for the Right to Information (along the lines of the NREGA Council). The minister in-charge of the nodal department in the Government of India could chair this council and members could include representatives of RTI movement, other prominent people from outside the Government, and secretaries of some of the critical departments.

The council could also have, as a permanent invitee, the Central Chief Information Commissioner, and as special invitees, other Chief Information Commissioners and Information Commissioners,on a rotation basis, from the Central and State Information Commissions.

This council should meet at least once in three months and review the functioning of the Act and of all its stakeholders. It should look into complaints and suggestions and advise the Government on corrective and additional measures required.

We also feel that little purpose is being served by insisting that a first appeal should be made in the department itself. Therefore, we suggest that the provision for a first appeal be deleted and applicants be allowed to directly appeal to the Information Commission.

The first appeal process should be replaced by a process where any refusal of information should be officially approved by a senior officer, and the senior officershould then also be liable for penalties if an offence is committed in refusing the information.

Also, we feel that nodal officers at various levels must be given the responsibility of monitoring the functioning of the RTI Act and take corrective action, where required. They must also report on the outcome of this monitoring to the Information Commission. Therefore, the Collector of each district and the secretary of each department should be given this role.

Part C : Other News

Padma Shri

If you know the right people, you could get Padma Shri as a gift, it seems.

Above point came out of RTI application filed by a professor of a college to the Ministry of Home Affairs.

It appears that Jaipal Reddy, Union Urban Development Minister had recommended the name Dr. Sankara Reddy, a retired principal of Delhi’s Sri Venkateshwara College, as the said Principal had hired the wife of the Minister’s private secretary as professor of history even though there were other more deserving candidates.

CMS Rawat, President of the Teachers’ Association, said the hiring of professor Namita was a gross violation of university guidelines. “She only had an rMA degree and no teaching experience. There were candidates who were PhDs, but Namita got the job because of her husband’s position. She was initially hired on an ad hoc basis for four months, but she has been here for more than a year now”.

It is also reported that during Sankara Reddy’s tenure, the college had been slapped with fines of over Rs.40 lakh for violating several building norms. Sankara had to oblige [aipal Reddy to get out of this mess. So he got the wife of Reddy’s private secretary a job with the college.

The college was also fined around Rs.27lakh by the ‘Electricity Department for misuse of power.

Health status of PM and the President

The Centre has refused to disclose information on PM’s and President’s health status, including details of medical expenses borne for the same, under the RTI Act, terming them as classified documents.

Refusing to divulge information on the health of all PMs to an RTI applicant, the Director, Emergency and Medical Relief said, “As the medical care scheme for the PM is a classified document, it is regretted that the information cannot be provided as per the exemption clause of the RTI Act.”

The President’s secretariat also rejected a similar RTI plea, asking for information on health status of the President.

Info on housing co-op. Societies

Vijay Chauhan had asked 14 questions pertaining to housing societies – such as the names of societies where administrators had been appointed, names of deputy registrars who appointed the administrators and the tenure of administrators.

In his order, SIC Ramanand Tiwari said the RTI Act had its limitations. “It guarantees furnishing of available information. But as the appellant has prescribed a 14 point format and wants information of the whole department, this does not seem feasible.”

Surprisingly, State Chief Information Commissioner Suresh Joshi on the same point in January, 09 had ordered that the same information should be provided;

Tiwari relied on Section 7(9) of the Act for denying the information.

Shailesh Gandhi, Central Information Commissioner, is of the view that Section 7(9) does not permit the rejection of the application and only specifies that if the information could not be given in the format sought by the applicant, the PIO can provide the information in another format or give options like inspection of files. Section 7(9) cannot be used for denying information.

In this context, it may be noted that Mr. Tiwari faced a volley of grievances from RTI activists who participated in the discussion on the role of the Act and better governance at a seminar organised by Janhit Manch on 28.3.2009. While some of the queries questioned his Orders, in which he was reportedly soft on the PIOs, others related to his inaction against officers who disregarded SIC orders. Tiwari brushed aside most of the queries, saying they were ‘personal in nature’. Further, he stated: “I know there have been complaints like me being too soft on PIOs, but my disposal rate has been good. For me, the priority lies in providing information, but since the issue has been raised, I will try to improve and impose more penalties in future”.

Interesting report on RTI in Maharashtra in The Times of India

The Right to Information Act (RTI) received a phenomenal response last year with 4.16 lakh queries being filed by citizens across the State.

The three -and-a-half-year-old Act has now become an effective weapon for lakhs of people who have been fighting to procure information. “Maharashtra has beaten all other States in the country and perhaps even the world, in the number of applications received” an exuberant State Chief Information Commissioner Suresh Joshi told TOL “There was a 33% increase in the number of RTI applications received by various Government organisations and public sector undertakings last year than that in 2007”.

The State Urban Development Department topped the list and received 1.04 lakh RTI queries. The queries usually relate to unauthorised construction permission for building proposals, assessments and establishment regulations. The Revenue Department, with 70,491applications came second on the list. People filed queries to procure details of land records from the Revenue Department as a lot of data still need to be updated and computerised.

The home department with 45,363 queries, came third. People began using the Act to find out the status of their FIRs and police investigations. In many instances, the police were forced to take action after the RTI query was filed.

The BMC received 46,967 applications filed by citizens on various local issues. The State Information Commission has penalised 256officers who had denied information and has levied a penalty of Rs.34.01 lakh over the past one year.

4 members of the last Parliament break norms

In a reply to an RTIquery, the Lok Sabha Secretariat clearly said MPs travelling on official assignments should not seek five-star hotel comforts. But that is precisely what MPs N. N. Krishnadas (CPM), Jaisingrao Gaikwad Patil (NCP), Lal Mani Prasad (BSP) and Bhupendrasinh Solanki (BJP) were enjoying on November 26, when terrorists struck the Taj Hotel. The law makers were in Mumbai as part of a IS-member Lok Sabha Committee on Subordinate Legislation to hold meetings with the top brass of HPCL and other PSUs.

MPs had the nightmarish experience of the terror attack and had ducked under tables to escape bullets. The cost of board, lodging and transport of the panel during the tour is borne by the LS Secretariat as per the guidelines and not by PSUs, the RTI reply said.

Prime Minister’s foreign travels

PM Manmohan Singh has run up a travel bill of Rs. 233.8crore for official foreign visits in the last five years, according to data released by the Government in response to an RTI query. His predecesor Atal Bihari Vajpayee spent Rs. 185.60 crore on foreign tours during 1999-2003, as per official data. The PM’s eight-day visit to Brazil and Cuba in Septemeber 2006 cost the exchequer Rs. 15.89crore and tops in foreign tour expenditure.

The seven-day visit to France, the US and Germany in September 2005 comes second with a travel expenditure of Rs. 13.4crore. The eight-day visit to the UK and the US came third with a travel bill of Rs. 11.9 crore.

A quick hop to neighbouring Dhaka for three days in November 2005 for a summit meeting of Saarc nations cost the taxpayers Rs. 3.70crore. The bill for his three-day tour of China last January was Rs. 6.80 crore.

And to think that such extravagant spending takes place in a country which ranks 94th in the Global Hunger Index of 119 countries as per the recent report brought out by the United Nations World Food Programme.

Nirav Shah

Decision of the Court

Right to Information

Disclosure of assets of the judges of the Supreme Court

The full bench of the Delhi High Court, in the judgment
pronounced on 12.01.2010 upholding the single bench’s order, has held that the
Chief Justice of India comes within the purview of the Right to Information Act,
and that details of judges’ assets must be disclosed under the RTI Act. It has
gone to the extent of stating that even income-tax returns and medical records
of judges needed to be disclosed, if they serve public interest.

Two clauses of section 8(1) which are dealt with in this
order are: Clause (e) – whether information is held by the Chief Justice of
India in his fiduciary capacity and Clause (j) – whether the information is
personal to be exempt.

The Court held:

The CJI cannot be a fiduciary vis-à-vis the judges of the
Supreme Court. The judges of the Supreme Court hold independent office, and
there is no hierarchy in their judicial functions which places them on a
different plane than the CJI. The declarations are not furnished to the CJI in a
private relationship or as a trust, but in discharge of the constitutional
obligation to maintain higher standards and probity of judicial life, and are in
the larger public interest. In these circumstances, it cannot be held that the
assets information shared with the CJI by the judges of the Supreme Court, is
held by him in a fiduciary capacity, which if directed to be revealed, would
result in breach of such duty.

Accordingly, the court has held that section 8(1)(e) does not
cover asset declarations made by judges of the Supreme Court and held by the CJI.
The CJI does not hold such declarations in a fiduciary capacity or relationship.

In the present case, the particulars sought by the respondent
do not justify or warrant protection under section 8(1)(j), inasmuch as the only
information the applicant sought was whether the1997 Resolution was complied
with. That kind of innocuous

information does not warrant the protection granted by section 8(1)(j). The full
bench 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 under section 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 under section 8(1)(j) that such disclosure is warranted in “larger
public interest”.

Some interesting excerpts from the judgement:

‘The subject matter in
hand involves questions of great importance concerning balance of rights of
individuals and equities against the backdrop of paradigm changes brought
about by the legislature through the Act ushering in an era of transparency,
probity and accountability as also the increasing expectation of the civil
society that the judicial organ, like all other public institutions, will also
offer itself for public scrutiny.

‘Information is the
currency that every citizen requires to participate in life and the governance
of society. In any democratic polity, greater the access, greater will be the
responsiveness, and greater the restrictions, greater the feeling of
powerlessness and alienation. Information is a basis for knowledge, which
provokes thought, and without thinking process, there is no expression.
“Knowledge” said James Madison, “will forever govern ignorance and people who
mean to be their own governors must arm themselves with the power knowledge
gives. A popular government without popular information or the means of
obtaining it is but a prologue to farce or tragedy or perhaps both”. The
citizens’ right to know the facts, the true facts, about the administration of
the country is thus one of the pillars of a democratic State. And that is why
the demand for openness in the government is increasingly growing in different
parts of the world.

‘The source of right to
information does not emanate from the Right to Information Act. It is the
right that emerges from the constitutional guarantees under Article 19(1)(a)
as held by the Supreme Court in a catena of decisions. The Right to
Information Act is not repository of the right to information. Its repository
is the constitutional rights guaranteed under Article 19(1)(a). The Act is
merely an instrument that lays down statutory procedure in the exercise of
this right. Its overreaching purpose is to facilitate democracy by helping to
ensure that citizens have the information required to participate meaningfully
in the democratic process and to help the governors accountable to the
governed. In construing such a statute the Court ought to give it the widest
operation which its language will permit. The Court will also not readily read
words which are not there and the introduction of which will restrict the
rights of citizens for whose benefit the statute is intended.

‘Having posed the question
whether judicial ethics exist as such, Justice J.B Thomas had stated:
“We form a particular
group in the community. We comprise a select part of an honourable profession.
We are entrusted, day after day, with the exercise of considerable power. Its
exercise has dramatic effects upon the lives and fortunes of those who come
before us. Citizens cannot be sure that they or their fortunes will not some
day depend upon our judgment. They will not wish such power to be reposed in
anyone whose honesty, ability or personal standards are questionable. It is
necessary for the continuity of the system of law as we know it, that there be
standards of conduct, both in and out of court, which are designed to maintain
confidence in those expectations.” (Judicial Ethics in Australia, Sydney, Law
Book Company, 1988)

‘The right to information often collides with the right to privacy. The government stores a lot of information about individuals in its dossiers supplied by individuals in applications made for obtaining various licenses, permissions including passports, or through disclosures such as income tax returns or for census data. When an applicant seeks access to government records containing personal information concerning identifiable individuals, it is obvious that these two rights are capable of generating conflict. In some cases, this will involve disclosure of information pertaining to public officials. In others, it will involve disclosure of information concerning ordinary citizens. In each instance, the subject of the information can plausibly raise a privacy pro-tection concern. As one American writer said: one man’s freedom of information is another man’s invasion of privacy.
- ‘It was Edmund Burke who observed that “All persons possessing a portion of power ought to be strongly and awfully impressed with an idea that they act in trust and that they are to account for their conduct in that trust.” Accountability of the Judiciary cannot be seen in isolation. It must be viewed in the context of a general trend to render governors answerable to the people in ways that are transparent, accessible and effective. Behind this notion is a concept that the wielders of power – legislative, executive and judicial – are entrusted to perform their functions on condition that they account for their stewardship to the people who authorise them to exercise such power. Well defined and publicly known standards and procedures complement, rather than diminish, the notion of judicial independence. Democracy expects openness and openness is concomitant of free society. Sunlight is the best disinfectant.’
[Secretary General, Supreme Court of India vs Subhash Chandra Agarwal: LPA No 501/ 2009: judgment pro-nounced on 12.01 2010: Delhi High Court FB]

Part B: The RTI Act

   Public Cause Research Foundation (PCRF) Report:

PCRF (A Parivartan Initiative) is a public trust started by some RTI activists to encourage public information officers to think and act positively while dealing with RTI requests.

If the PIO denies information under the RTI Act because he has done something wrong and wants to hide something, it is understandable. However, a large number of officers are rejecting informa-tion, not because they have something to hide, but because they are culturally oriented to say “No”. Often, one comes across officers who would say, “Why should I give information to him? Why is he asking for information? What will he do with this information? Who is he to question me?” These questions are reflective of a mindset with which our bureaucracy has been working for decades. They are simply not used to being questioned by the public.

Likewise, RTI Awards seek to comparatively assess the performance of all information commissioners, so that the best practices could be highlighted. During 2009, PCRF studied 51,128 orders passed by various information commissions during the calendar year 2008 and received feedback from 8,400 appellants. The performance of each com-missioner was studied in great detail in term of disposals and pendencies, pro-disclosure attitude, compliance to his orders, deterrence impact and satisfaction ratio.

The awards have been instituted in three categories: Information Commissioner (to felicitate an information commissioner who has enabled access to correct and complete information to maximum appellants and strictly enforced the RTI Act); Public Information Officer (to felicitate information officers who have provided complete and correct information with maximum number of RTI applications within the prescribed time limit); and citizens (to felicitate those citizens who created maximum public impact by using the RTI Act).

The following is the executive summary of this awards exercise:

The Right to Information (RTI) Awards was instituted in the year 2009. One of its objectives was to comparatively assess the performance of all information commissioners. For this purpose, the performance of each commissioner was studied in great detail. The study revealed a highly uneven implementation of the RTI Act across the country. It also highlighted the best practices which some commissioners may like to emulate.

   1. Methodology: For the purpose of this study, orders passed in 51,128 cases during 2008, by 72 Information Commissioners and 14 combined benches from 25 Information Commissions (barring Uttar Pradesh, Tamil Nadu and Sik-kim), were analyzed. We found that in 35,930 cases (i.e., 68% cases), orders were passed in favour of disclosure. We wrote letters to these 35,930 appellants. We also interviewed many of them on phone. We asked all of them one question: Did they finally get information after approaching the Information Commission? Finally, we received feedback from 8,400 appellants who shared with us their experiences with the Commission.

   2. Orders in Favour of Disclosures: Nationally, for every 100 appeals and complaints filed in Information Commissions, orders in favour of disclosure were passed in 68 cases. Information was denied in 22% of the cases and 10% of the cases were remanded back. Mr. Anil Joshi of Chhattisgarh, Mrs. Gangotri Kujur of Jharkhand, and the combined benches of Chhattisgarh passed 100% of the orders in favour of disclosures. A total of 34 commissioners passed more than 90% of the orders in favour of disclosures. Among the states, Assam, Chhattisgarh, Arunachal Pradesh, Punjab and Karnataka passed more than 90% of the orders in favour of disclosure. However, 10 commissioners and four states passed less than 50% of the orders in favour of disclosures, Mr. Naveen Kumar from Maharashtra and Mr. C D Arha from Andhra Pradesh were at the bottom of the list, with less than 20% of the orders in favour of disclosures.

   3. Compliance of Orders: However, a favourable order from the Information Commissioner does not translate into information. Nationally, just 38% of the pro-disclosure orders could actually be implemented. In the balance 62% cases, the people did not get information despite a favourable order. Arunachal Pradesh has done quite well on this score. They could get more than 90% of their orders implemented. In addition to Arunachal Pradesh, Mr. A Venkatratnam of Goa, Mrs. Gangotri Kujur of Jharkhand and the combined benches of Assam and Nagaland could get more than 70% of their orders implemented. However, on the lower side, 44 commissioners could get less than 40% of their orders implemented. Mr. R Dileep Reddy and Mr. C D Arha of Andhra Pradesh, Mr. M R Ranga of Haryana and Mr. M M Ansari, Mr. M L Sharma and Mr. S N Mishra of CIC could get less than 20% of their pro-disclosure orders complied with.

   4. Non-compliance: Many commissioners close a case after passing orders in favour of disclo-sure— without ensuring compliance thereof. The appellant has to struggle with the concerned public authority for a few months to get the order implemented. After writing several letters and making several visits to the public authority, when the order is still not complied with, he makes a complaint to the commission. Many appellants get tired and do not file complaints again. Even when a complaint is filed, the same comes up for hearing in its due course after a few months, because most of the commissions have huge pendencies, thus causing hardships to appellants. Mostly, the complaint is disposed of without a hearing and with a letter to the public authority to comply with the Commission’s earlier order. The public authority still does not obey the order. Even if a hearing takes place in the Commission, the case is again closed with directions to the officer to provide information rather than taking any penal action. Mostly, the order is again not complied with.

   5. Continuing Mandamus: Some states follow the practice of “continuing mandamus”. They do not close a case after passing orders, but post hearings subsequently for compliance thereof. The case is not closed till the appellant reports satisfaction. These are Punjab, Uttarakhand, Bihar, Orissa, Karnataka, Arunachal Pradesh, Gujarat and some commissioners like Mrs. Gangotri Kujur of Jharkhand, etc. Their compliance rates are better than other Commissioners and Commissions. However, the problem with most of them is that barring a few, they have been quite soft with officers. Repeated non-compliance is ignored. As a result, in some cases, several hearings take place spanning over several months which leads to attrition and tires out the appellants. When the appel-lant stops coming, the cases are closed with the assumption that the appellant might have received all information. Therefore, continuing mandamus needs to be coupled with strict enforcement.

   6. Arrest Warrants: Arunachal Pradesh is the first and the only Information Commission in the country to have issued bailable arrest warrants under section 18(3) of the RTI Act for non-compliance of the Commission’s orders. Non-compliance of their orders is treated as a complaint under section 18 of the RTI Act. Section 18(3) of the RTI Act empowers the Commission to issue bailable arrest warrants and seek production of documents. Arunachal Pradesh has used this section quite effectively to get its orders implemented. Other commissions across the country may also like to invoke their powers under this section to improve compliance.

   7. Disposals: Mr. Vijay Baburao Borge and Mr. Naveen Kumar have disposed the maximum number of cases: 383 and 333 respectively, per month. However, they achieved this disposal by rejecting or remanding back almost 80% of their cases without hearings. Mr. Shailesh Gandhi stood out by disposing 270 cases per month, in the first few months, and more than 400 cases per month later. He could bring down his pendency from 12 months to less than 2 months. At the lower end are the north-eastern states, who disposed very few cases, because they get few appeals. However, there are some commissioners who disposed very few cases despite huge pendencies. Commissioners who disposed less than 10 cases per month, despite huge pendencies, are Mr. Dileep Reddy of Andhra Pradesh, Mr. Arun Kumar Bhattacharya of West Bengal, late Shri G G Kambli of Goa and Mr. R K Angousana Singh of Manipur.

   8. Imposition of Penalties: The RTI Act mandates that every violation of the Act “shall” be penalised unless there was a reasonable cause on the part of the PIO. The penalty amount has to be deducted from the PIO’s salary. However, just 2.4% of the recorded violations across the country were penalised. In 74% cases of recorded vio-lations, the Hon’ble Information Commissioners did not even question the PIO as to whether there was a “reasonable cause” or not. The PIOs were questioned in just 26% cases through show cause notices. However, as many as 65% of these show cause notices remained pending at the end of the year. Some 23% notices were dropped because the Commissioners found the explanations and excuses presented by PIOs in these cases as “reasonable”. The combined benches of Orissa imposed penalties in almost 30% of pro-disclosure cases. As an individual Commissioner, Mr. D N Padhi of Orissa was at the top, even though he imposed penalties on less than 11% of pro-disclosure cases. There are six Commissioners who imposed penalties in more than 10% of pro-disclosure cases. Nearly 50 Commissioners and 11 Commissions, including the CIC, imposed penalties in less than 2% pro-disclosure cases. What was alarming was the fact that there were 29 Commissioners and three Commissions who did not impose even a single penalty despite thousands of recorded violations.

   9. Pendencies: Huge pendencies have become such a severe problem in some states that it takes more than a year for a case to come up for hearing if it were filed today. Some urgent steps need to be taken to address mounting pendencies. States with more than a year’s pendency are Orissa, Madhya Pradesh, Maharashtra, UP and some of the Commissioners at CIC. Strict imposition of penalties will have a direct bearing on the number of appeals re-ceived at the Commission. When the RTI Act came into effect, officers were scared of violating it because of its strong penal provisions. But when they saw that the penal provisions were not being strictly enforced, they started taking RTI lightly. If PIOs do not take RTI Act seriously, the number of appeals at Commissions will increase exponentially. Therefore, the inflow of cases to the Commission can be reduced with strict enforcement of penal provisions.

   10. State of Records: In many Commissions, the state of records is not very healthy. Many Commissions do not even know for sure how many cases they disposed. At different times, they gave us different figures of disposals. Many Commissions do not have copies of all orders. Uttar Pradesh claimed to have passed 22,658 orders during 2008. However, they said that they do not maintain copies of all orders. Tamil Nadu said they had passed more than 40,000 orders but provided us with only 900 orders.

   11. Missing Records: The trend of PIOs reporting records to be missing or lost seems to be on the rise. In many cases, this is treated as a legitimate excuse for denial of information. However, in some parts of the country, when the Commissioners threatened police action, suddenly these ‘missing’ records came out, which means that “missing records” was merely an excuse given by the PIOs to deny information. Mr. Vijay Kuvalekar of Maharashtra has been very successful in forcing PIOs to trace out records in many cases when he threatened police action.

   12. Arbitrary Commissioner Strength: Commissioners seem to be appointed by state governments without reference to the pendency of that Commission. On one hand, we came across states like Arunachal Pradesh that has five Commissioners for 43 appeals, and on the other hand, we have Gujarat that has one Commissioner for a pendency of almost 5,000 cases. It is important to formulate some guidelines that state how much pendency a Commissioner should be appointed.

Part C: Others News

Important Pronouncement by the Commission:

(Continuing from January 2010)

When Shailesh Gandhi, CIC, was in the BCAS office addressing RTI activists and journalists, he distributed a compilation of eight important and profound pronouncements by the Central Information Commission.

3. Reasons For Claiming Exemptions

Since Right to Information is a fundamental right of citizens, denial has to be only on the basis of the exemptions under section 8(1); and it is necessary to carefully explain the reasons of how any of the exemptions apply, when a PIO wishes to deny information on the basis of the exemptions. Merely quoting the subsection of section 8 is not adequate. Giving information is the rule and denial is an exception.

In the absence of any reasoning, the exemption under any clause of section 8(1) is held to have been applied without any basis.

4. Fiduciary

The traditional definition of ‘fiduciary’ implies that a person occupies a position of trust in relation to someone else, therefore, requiring him to act for the latter’s benefit within the scope of that relationship. In business or law, we generally mean someone who has specific duties, such as those that attend a particular profession or role, e.g., a financial analyst or trustee. The information must be given by the holder of information when there is a choice – as when a litigant goes to a particular lawyer, or a patient goes to particular doctor. It is also necessary that the principal character of the relationship is the trust placed by the provider of information in the person to whom the information is given. An equally important characteristic for the relation-ship to qualify as a fiduciary relationship is that the provider of information gives the information for using it for his benefit. When a committee is formed to give a report, the information provided by it in the report cannot be said to be given in a fiduciary relationship. All relationships usually have an element of trust, but all of them cannot be classified as fiduciary.

University Grant Commissioner to be penalised!

In a wake of the deemed university controversy, the Central Information Commission has slammed the University Grants Commission (UGC) for lack of transparency in information on deemed universities.

Ruling that the UGC appeared to act as if the RTI Act did not apply to it, the information watchdog has awarded a compensation of Rs. 2,000 to an applicant and issued a show cause notice to the UGC for not responding within the stipulated 30-day period.

The Commission noted: “It is a very sad state of affairs that the UGC appears to be operating with-out any understanding of what is happening. The Commission has earlier also directed the UGC to put up various information under its section 4 obligations. The UGC has failed to comply with it.”

President’s Foreign Tours

President Pratibha Patil managed to pull-off quite an austerity drive! She managed state visits to eight countries on a ridiculous expenditure of just Rs. 1.95 lakh. In response to the RTI application, the reply reveals that on state visits to Brazil-Mexico-Chile, Bhutan, Vietnam-Indonesia and Spain-Poland, Patil spent Rs. 12,878, Rs. 32,670, Rs. 66,364 and Rs. 83,339 respectively. This comes to a total of Rs. 1,95,251. The document said the expenses were incurred under the budget head “tour expenses”.

Chetan Kothari, the applicant, believes that the infor-mation provided is incomplete, false and malafide, and he has lodged a complaint with CIC against the PIO of Rashtrapati Bhavan.

Padma Bhushan Award Challenged

Media persons Pritish Nandy and Vir Sanghvi have filed a RTI application with regard to the inclusion of Sant Singh Chatwal’s name for the Padma Bhushan award.

Freedom of Information (FOI) Act, USA

ABC News filed a FOI application with the National Institute of Standards and Technology (NIST), USA which had investigated the collapse of the World Trade Centre Towers on 9/11, to get aerial photos of the dramatic collapse. The images were taken from a police helicopter — the only photographers allowed in the space near the towers on September 11, 2001. ABC said the NIST gave 2779 pictures on nine CDs. The photos are the core to understanding the visual phenomena of what was happening. ABC Network has posted 12 photos on its website.

Advertisements by DAVP

The Directorate of Visual Publicity (DAVP) has issued 1,231 advertisements over January 1, 2008 to September 28, 2009, costing over Rs. 217 crores on behalf of ministries and government departments.

In a move that could further expose misuse of public funds by politicians for personal publicity, the Central Information Commission (CIC) has allowed disclosure of advertisements issued by the government over one year. The panel has allowed disclosure of details related to the number and cost of advertisements and those that have photographs of politicians.

Nirav Shah

ORDERS OF THE COURT & CIC

Right to information

Part A : ORDERS OF THE COURT & CIC

S. 20 and S. 29 of the RTI Act :

A writ petition was filed before the Orissa High Court by the
PIO on whom the Orissa State Information Commissioner (SIC) had imposed penalty
of Rs.19250.

Under the RTI application, certain information applied for
was not furnished within 30 days. The applicant registered a complaint against
the PIO for this default with SIC. The PIO intimated that “since the information
regarding the rate of VAT on different commodities in Oriya version was not
available in the department, the information could not be supplied being not
available”. However, he admitted that since such information had not been
prepared and not available, it was his duty to at least intimate the applicant
about the fact of non-availability of the information sought for by him within
the stipulated time.

When the matter was taken up for hearing at SIC, the
complainant did not appear, but sent a letter to the State Commissioner to
permit him to withdraw the complaint. Even then, without permitting withdrawal
of the complaint, the Commission came to hold that the petitioner who was the
dealing assistant and one Trilochan Pradhan who was the section officer were
prima facie responsible for the delay. So holding, the Commission directed
issuance of notice only to the petitioner to show cause as to why penalty as per
provisions of S. 20(1) of the Right to Information Act, 2005 should not be
attracted. Pursuant to the notice dated 12-3-2007 issued to the petitioner, she
showed cause stating that though the letter was available to her on 22-5-2006,
the single file in which such applications were dealt with was made available to
her on 17-7-2006. Hence, there was delay. However, SIC imposed the penalty due
to the alleged reason that the petitioner had retained the file from 22-5-2006
to 26-8-2006 and was found responsible for delay of 77 days. The complainant had
sought for the Oriya version of the rate of VAT on different commodities
prevailing in Orissa and if Oriya version of the VAT rate chart was not in
existence with the public authority, a simple reply within the time line would
have sufficed. But in the instant case, a negative answer was given by the
referred PIO after a delay of 77 days, which cannot be lost sight of or
condoned.

Decision of the Court :

S. 20(1) of the Right to Information Act provides that where
the Information Commissioner at the time of deciding any complaint or appeal is
of the opinion that the PIO has, without any reasonable cause,

(1) refused to receive an application for information, or

(2) has not furnished information within the time specified
under Ss.(1) of S. 7, or

(3) malafidely denied the request for information, or

(4) knowingly given incorrect, incomplete or misleading
information, or

(5) destroyed information which was the subject of the
request, or

(6) obstructed in any manner in furnishing the information,

it shall impose a penalty of two hundred and fifty rupees
each day till the application is received or information is furnished, so
however, the total amount of such penalty shall not exceed rupees twenty-five
thousand.

Therefore, this power is to be exercised only at the time of
deciding any complaint or appeal. But in this case since the complainant did not
choose to appear and sought for withdrawal of the complaint, the complaint could
not have been proceeded with. In view of the above, proceeding with the
complaint in the absence of the complainant when he is not interested to proceed
with the same is not warranted under the law and, therefore, the Information
Commission has committed manifest error of law in proceeding with the complaint
after condoning the absence when he had already sought for withdrawal.

(Author’s Note : Readers may consider whether the above is the
correct decision)

[PIO v. Orissa Information Commission, WP(C) No. 1874 of
2008, decided on 22-7-2009]

S. 8(1)(g), (h) and (j) :

Shri N. K. Bhasin made an RTI application to ICAI in respect
of the detailed verbatim proceedings of the Council of ICAI in the matter of
complaint by DGM, Bank of India [Reference No. 25-CA(88)/2002]. The CPIO
provided a reply on 17-9-2007, in which the final decision of the Council was
communicated to the appellant, but not the verbatim proceedings. The Appellate
Authority, in its order dated 12-11-2007, upheld the CPIO’s decision. Initially,
when this matter was heard by the Commission on 16-7-2008, a direction was
issued to the respondents to file their written submissions as well as the
appellant to file the counter, if any, for the Commission to process this matter
further. Accordingly, the CPIO filed his comments on 14-8-2008 and the appellant
his counter on 29-8-2008.

As the Order of the CIC is of interest to the members of our
profession, I reproduce verbatim 7 paras of the Order (as I had done in the
issue of April 2010) :

The main point brought out by the respondents is that ICAI
functions under an Act of the Parliament and the regulations framed under the
said Act specially mention the steps to be followed at every stage as well as
the information to be communicated to the parties concerned to any complaint
which the ICAI Council may be dealing with. These regulations require the
Council to specify/intimate only the prima facie opinion to the parties and not
the grounds on which such opinion is formed. No hearing is provided to the
parties at the time of forming of the prima facie opinion by the Council. The
findings of the Council are also communicated to the parties. It is, therefore,
the submission of the respondents that their statute itself makes a difference
between the prima facie opinion stage and the final stage and has provided for
the appropriate information to be given to the parties at their respective
stages. The application of the present applicant was dealt with under those
provisions.

It is the appellant’s submission that the information he has
sought was in a case which has already concluded and been closed. It is his case
that the information requested by him should be disclosed to him “blocking out
such portions of the document as would attract exemption u/s. 8(1)(g) and
u/s.8(1)(j) of the RTI Act, 2005 . . .” and the requested information could not
impede any process of investigation since no process is currently on.

The respondents were specifically asked to state as to what objection they could have to disclosure of the requested information to the appellant, especially when the matter is acknowledgedly a closed one and no investigation or enquiry is pending. They made reference to the ICAI Act and the regulations and stated that they were disinclined to provide to the appellant any documentation other than what the ICAI Act and the regulations entitled him to.

On consideration of both the submissions, it is my view that the respondents had not been able to specifically state as to how the requested information could be barred from disclosure, especially as no investigation to which it might relate is current. That excludes the purview of exemption — S. 8(1)(h) of the RTI Act. I do not see how S. 8(1)(g) or S. 8(1)(j) of the RTI Act would be applicable in the present case. The appellant has himself suggested that should the respondents consider parts of the disclosed information sensitive in terms of S. 8(1) of the RTI Act, they should be willing to block it out/sever it by invoking the provisions of S. 10(1) of the RTI Act and disclose the balance information to the appellant.

I find myself in agreement with the submission of the appellant. I do not see how any of the exemption Sections of the RTI Act would apply to the present information as requested by the appellant especially because this information pertains to an enquiry/ investigation which is already over and the matter stands closed. There is merit also in the appellant’s submission that the respondents should sever u/s.10(1) such portions of the information, which they might consider sensitive in terms of S. 8(1) of the RTI Act.

The respondents’ pleading that their disclosure of information was conditioned only by the provisions of the ICAI Act and the regulations and could not be decided under the RTI Act, cannot be accepted in view of S. 22 of the RTI Act (override Section).

In view of the above, it is directed that the requested information shall be disclosed to the appellant by the respondents/CPIO within two weeks of the receipt of this order. The respondents/CPIO may sever from the disclosed information such portions, which according to them, was sensitive and was likely to attract any of the provisions of the exemptions under the S. 8(1) of the RTI Act.

[Appellant : Shri N. K. Bhasin — Respondents : The Institute of Chartered Accountants of India, F.No. CIC/ AT/A/2008/00265 of 19-1-2010]

Part B: The RTI Act

On 31-3-2010, Govt. of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training (DoPT) had a brainstorming with Civil Society Organisations (CSO). 22 NGOs from all over India were invited. 25 individuals participated : 3 from DoPT, 2 from CIC’s office and 20 representatives of CSOs (including author of this article).

The brainstorming/consultation was to seek inputs from representatives of Civil Society — especially those who had long-standing experience in promoting RTI so that the department could bring about the intended effective improvements in its functioning as well as that of the RTI regime.

As per the presentation of the Secretary of CIC, three basic issues are considered as critical to the successful implementation of the RTI Act and which need to be set right :

Implementation of relevant provisions of S. 4 more seriously, innovatively and efficiently. He referred to a recent report of the Director General of National Archives, from which it can be made out that less than 10% of the public sector entities bothered to even report their compliance with the ‘Public Records Act, 1993’. Having a clear road map for streamlining the implementation of the Public Records Act and its operationalisation is crucial. (Note: Part B of r2i of May 2010 covers this subject).

Meticulous study of the questions/information requests that are usually received by a PA and making all such information available suo motu go a long way in lessening the burden on citizens for getting the information they seek.

Dissemination i.e., the manner in which infor-mation is made available proactively is crucial. Disclosure of information on websites is of limited or no value for the 90% populace which has no access to the Internet. Some out-of-the-box thinking for designing apt formats to address this issue is also called for.

Five members of CSOs (including Narayan Varma) were contacted in advance by the Deputy Secretary, RTI Division, DoPT and were requested to make the presentation of their views. They did so.

Dr. Vijay Kumar (National Law School of India University, Bangalore) presented his views from an academic perspective. One of his suggestions was to set up the Ombudsman in the Information Commission for continuously seeking inputs and studying good practices as also for addressing the problems that Public Authorities may face in implementing the RTI Act, 2005.

Nikhil Dey (MKSS) flagged the issue why the Information Commissions need to be ap-proached on such a large scale. Departments need to look inward to address the issue and overhaul the way they deal with proac-tive disclosure, processing of applications and disposing of first appeals. This would perhaps address the issue of so many of the Government’s own employees filing RTI applications. It will also bring about certain other much-needed reforms in the manner in which governments function.

On the whole, he felt, there was much to celebrate the RTI regime. Its success so far is a good reason to believe that there is no need for amending the Act. It is so important that representatives of the Government and of the CSOs shelve the adversarial positions that they tend to take in this regard and work hand-in-hand. It would be of great mutual help for them to meet more often — on a larger scale — and keep talking to each other.

Dr. Shekhar Singh (NCPRI) stressed the need to spread RTI awareness in rural areas and to use multi-media approaches for the same. DoPT’s funding therefore needs to be streamlined accordingly. Each Public Authority should be asked by DoPT to have a PIO specifically designated to look after the updation of the Public Authority’s pro-active disclosure. Outsourcing the work of streamlining records management needs to be considered.

Arvind Kejriwal (Parivartan) made a strong pitch for the National RTI Council. He also favoured involvement of a wider number of stakeholders and hence he proposed that the said National Council would discuss all problems related to RTI implementation and should be headed by the Minister and have 70% representation from CSOs and 15% each from Governments and Information Commissions.

Narayan Varma (PCGT) urged that DoPT be-come more proactive in its functioning and strengthen the RTI regime. He questioned as to why FAQs from DoPT’s website remains deleted even after the friction on ‘file not-ings’ between DoPT and CIC is resolved. He said that DoPT’s Annual Report should clearly mention its work on RTI in a given year. He suggested that a ‘band of 200 RTI activists’ be constituted under the aegis of the earlier-proposed National Council or otherwise to propagate RTI all over India. There is a need to have very good trainers who can train others — Train the Trainers programme. He concluded saying that there has been good progress in RTI implementation, but what remains to be done is much more.

The vision and mission of the Department of Personnel and Training was placed before the participants. The outline of the workshop was also explained. The participants then split into 4 random groups. Group I and III discussed the vision of the RTI regime and how to achieve that vision. For Group II and IV discussion was on the stakeholders and Governments as facilitators of the RTI regime.

Some of the points made out in the 4 groups were :

Create simple formats for disclosing information both proactively and reactively

Appoint a ‘dedicated PIO’, who can also be the Public Records Officer, as listed in the Public Records Act, 1993, combining the designation of PIO and Record Officer

National RTI Council be formed

‘Transparency Day’ once a month for multi-stakeholder dialogue

Joint campaigns and open houses facilitated by CSOs

Social media campaigns — street plays, songs, etc. highlighting RTI Act’s benefits be organised

Document best practices for dissemination

Reliance on Article 256 of the Constitution (whereby the Central Government can give appropriate directions to the State Governments — including those directions for better implementation of Central Law).

The Joint Secretary, DoPT wrapped up the proceedings summarising the presentations/ discussions in the previous sessions and pointed out that there was much agreement on the key issues faced by the RTI implementation regime even though there were variations in the solutions that were suggested. He also emphasised that the Government and the RTI activists were essentially working towards the same goal. He stated that the Government is fully commit-ted to the success of the RTI regime and that it would not do anything that would in any way dilute or weaken the RTI regime. He mentioned that this was a beginning of process of consultation.

PART c : OTHER NEWS

BPL individuals misusing benefit provided to them in the RTI Act :

Proviso to S. 7(5) of the RTI Act states that fee prescribed u/s.(1) of S. 6 and u/s.(1) and (5) of S. 7 shall not be charged from the persons who are of below poverty line as may be determined by the appropriate Government.

In a bid to curb the misuse of free information under the RTI Act, the Maharashtra State Information Commissioner has recommended that not more than 100 page-photocopies should be given free of cost to those below the poverty line.

Chief Information Commissioner Suresh Joshi said the clause under which information is given free of cost to below poverty line persons, was being misused. He cited a case where a person below the poverty line sought information on the Krishna Valley Development Corporation right from its inception. The information ran into five lakh pages.

“We charge Rs.2 per page. In this case, the fee would amount to Rs.10 lakh. I believe that those below the poverty line would not be interested in this kind of information. Someone was using the person to obtain information free of cost.” said Joshi.

He has recommended to the CM that if the information runs into several pages, the applicant be asked to inspect the documents and then ask for pages he wants photocopies of.

UK opens Government data to public :

Britain’s Prime Minister David Cameron has thrown open Government data to the public as part of a radical plan to usher in more transparency in public affairs.

In a letter sent to all government departments, Mr. Cameron set out ambitious plans to open up data and set challenging deadliness to public bodies for publication of information on topics including crime, hospital infection and government spending.

He states : “Greater transparency is at the heart of our shared commitment to enable the public to hold politicians and public bodies to account; to reduce the deficit and deliver better value for money in public spending; and to realise significant economic benefits by enabling businesses and non-profit organisations to build innovative applications and websites using public data.”

Housing for poor !

Aam admi always loses out to corrupt politicians. It is so sad. A whopping 85% of the flats meant for those from the economically weaker section have been usurped by our politicians. TOI has procured data through RTI application from the Urban Development Department that exposes the rampant misuse of the Chief Minister’s 5% discretionary housing quota scheme.

In 1976, the State Government initiated a housing scheme under the Chief Minister’s 5% discretionary quota which allowed citizens from the economically weaker section to apply for flats surrendered by developers in lieu of residential complexes constructed on Government land. According to the rules, each application must be thoroughly vetted by the State Urban Development Department before being approved by the Chief Minister.

Data accessed from the Urban Development Department shows that over the last 16 years, nearly 85% of the apartments have been given to Ministers, MLAs, MPs, their relatives and friends. TOI has in its possession a copy of the list of people who have been allotted flats under the Chief Minister’s discretionary housing quota scheme. Of the total 3,993 recipients, three-fourth (nearly 2,994) are from the Congress, the Shiv Sena, the BJP and the MNS.

Some of the political recipients have taken the flats in the names of their wives and children. Many sold off their apartments even before the completion of the mandatory five-year lock-in period, making a killing on the sale. A total of 142 flats were sold before the end of the lock-in period, in violation of rules framed by the Urban Development Department. Data shows that 1,008 flats have been resold with the allottees pocketing decent profits.

IS THERE NO ONE TO QUESTION SUCH ACTS ?

Gay Professor :

In Indian Institute of Technology (Hyderabad), management sacked gay rights activist and faculty member Ashley Tellis, apparently uncomfortable with his sexual orientation. The academic, with around 20 years of experience, was shown the door recently, less than a year of joining IIT-H.

Tellis has filed a right to information application, seeking the reasons behind his sacking.

Illegal garden in Navi Mumbai :

Civic activist Sandeep Thakur used the RTI Act to get facts from Navi Mumbai Municipal Corporations (NMMC). Facts are that CIDCO which built Navi Mumbai has spent Rs.12 crores to create a holding pond in Sector 10-A. It was because of this pond, Navi Mumbai escaped flooding when large parts of Mumbai went under water on July 26, 2005.

In 2008, NMMC filled up one-fifth of the pond to create a garden. This, despite the fact that there are two large public gardens just across the road.

In reply to the RTI application, the Chief Engineer of NMMC admitted that the garden was illegal. He promised last year that the pond would be restored to its original size in April that year. However, no action was taken. Things started moving only when Thakur filed a PIL in April this year asking the Court to direct the civic chief to restore the holding pond to its original capacity before monsoon.

On May 7, the High Court said it would like to know “who took the decision to develop the garden inside the holding pond” and directed the Commissioner to recover the money spent from that person. The Bench said the Commissioner would be held responsible in the matter. Commissioner Nahata has been ordered to file an affidavit before the hearing on July 20.

Mumbai Mayor’s Fund :

Nobody knew that such a fund existed (Gerson da Cunha, founder of AGNI commented : I have never heard of it. This is one of BMC’s best-kept secret). Existence of such a fund got revealed when an RTI application was made to find out details about it. The Mayor’s fund, as per the RTI records, got a shot in the arm when Mayor R. T. Kadam (1995-1996) organised a programme for fund-raising which resulted in funds of over Rs.1.26 crore. Of this, a crore was kept in fixed deposit and the interest received was used to meet medical aid for the needy. However, the irony is that Mayors who succeeded Kadam only spent the money from the kitty towards medical aid, but did nothing to increase it. When Datta Dalvi, Mayor (2005-’07) exited office, the fund had a balance of over 50.80 lakh, other than the fixed deposit.

Surprisingly, though Dr. Shubha Raul, Mayor, (2007-’09), sanctioned the maximum medical aid of over Rs.50 lakh during her tenure, her contribution to the kitty was zero. At the end of her tenure, the balance corpus was just a paltry sum of over Rs.4 lakh.

The Mayor provides financial assistance to underprivileged patients suffering specifically from heart ailments, dialysis, brain tumor, tuberculosis and kidney ailments.

Shraddha Jadhav, the present Mayor informs that she has over Rs.1 crore in deposit and is utilising the interest received from it to meet public needs. On an average, Ms. Jadhav receives (daily) five to six applications for financial help and has a balance of over Rs.4 lakh in hand. Ms. Jadhav says that she plans to organise a few fund-raising events soon.

Expenditure on newspapers by the Ministers :

An RTI inquiry reveals that the Maharashtra State Government spent over Rs.7.5 lakh from January 2009 to February 2010 on newspapers and magazines provided to the CM and Deputy CM besides various publicity departments of Mantralaya.

As per the information received in RTI reply, the CM’s office receives three copies of 24 newspapers daily including English and vernacular publications, while the Deputy CM’s office gets 19 newspapers in Marathi, Hindi and English. Interestingly, the office of the Director (Publicity) receives 33 sets of newspapers and magazines including Femina, Society and Stardust. Over 44 different newspapers and magazines are distributed in the news sections, making it highest subscriber amongst 16 departments in Mantralaya, followed by 40 publications that are received by Mantralaya library.

Shailesh Gandhi goes digital :

Mr. Gandhi selected by the Central Government as a Central Information Commissioner in September 2008 has gone digital. His communication to me and others is very interesting. He states that digital record-keeping is definitely the way forward in any office — government or otherwise. It would promote transparency and accountability in the office and reduce corruption. Full communication is posted on www.bcasonline.org and www.pcgt.org.

Nirav Shah

ORDERS OF CIC/SICs

r2i

Part A : ORDERS OF CIC/SICs

S. 2(h) of the RTI Act — Public Authority :

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

l
Decision of the High Court of Karnataka :

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

l Single
Bench decision of Bombay High Court :

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

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

l
Division Bench decision of Punjab & Haryana High Court :

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

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

l
Single Bench decision of High Court of Allahabad :

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

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

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

l
The High Court of Orissa :

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

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

S. 2(f) — ‘Information’ :

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

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

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

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

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

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

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

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

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

PART B : THE RTI ACT 2005

5th CIC Annual Convention, 2010:

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

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

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

RTI Act ab jan chukaa hai. Aaj uskii pehchaan hai, shaharon mein hi nahiin, chhote nagaron aur dehaat mein bhii. Haalaanki kuchh pradeshon mein vah mazbuti se aage barha hai aur kuchh aur pradeshon mein ab bhi ladkhadaate hue chaltaa hai.

Qaanuun-hukumat-awaam kaa is tarah ek honaa bahut achhi baat hai, which has to be admired. Lekin duusraa reaction jo hai, apprehension vaalaa, vah intahaa ghalat aur buraa hai. The Right to Information must never be allowed to degenerate into the Right to Bully, or into a form of vigilantism. Kyunki vah qanuun jo darr paidaa kartaa hai, vah iktarfaa hotaa hai, vah vishvaas, bharosaa, aitbaar nahiin barhaataa hai. Aur aaj humko vishvaas, aitbaar ki sakht zururat hai.

AAj RTI ko aaye paanch saal ho gaye hain. Humko aaj uske prabhaav oar, uske asar par, ghaur karnaa chaahiye. Kyaa hai uskaa asar ? RTI mein ek bare aandolan ki fateh hui hai. Aur uskaa shreyas sabse pahle jaataa hai Aruna Roy ko, jinhone Rajasthan mein RTI ki zaruurat mahsuus kari aur phir uske liye aandolan shuru kiyaa, aur uske liye logon kaa samarthan praapt kiyaa.

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

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

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

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

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

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

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

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

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

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

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

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

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

PART C: Informatton on & Around

SIC’s validity under cloud:

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

SRA biggest job attraction:

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

SIC’s orders being challenged by the Government:

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

Mhada’s duties:

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

`26 lakh vanished:

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

`45 crore vanished:

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

Private schools now fall within RTI Act ambit:

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

File notings being shielded:

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

Nirav Shah

Securities Laws : A Tale of Two Amendments — Recent controversial amendments by SEBI

r2i

Part A : CIC’s decisions

Very interesting and significant issue before CIC :

The applicant, Shri Arun Agrawal, has sought following
information from CPIO, Ministry of Law and Justice :

“Entire file containing papers along with notings, etc.
relating to the appointment and scope of the brief of special envoy Shri
Virendra Dayal to obtain papers relating to Volcker Report and his report to
the Ministry after meeting the UN officials.”

The application was transferred to the Ministry of External
Affairs and then to the Prime Minister’s Office and then to the Ministry of
Finance, Department of Revenue. Everybody denied having such a file in their
office.

The appellant’s prayer before CIC are :

“It appears reasonable to conclude that the Special Envoy
and the Enforcement Directorate deliberately did not collect the documents for
contract M/09/35, M/10/17 and M/11/25 by which allotments were made to
Reliance Petroleum on payment of illegal surcharge.

It is for this reason that the documents are sought and it
is for this reason that the Government has invoked the provisions of Clause
8(1)(a) of the RTI Act 2005.”

On account of the Volcker Report, Shri Natwar Singh had to
resign as the Foreign Minister. Allegation of Shri Arun Agrawal is as follows :

“Documents from the Volcker report establish that Reliance
was a non-contractual beneficiary for lifting five times more oil than shown
to have been lifted by Congress and Natwar Singh combined. It figures in every
table of the oil for food programme report of the U.N., in which the names of
the Congress and Natwar figure (Annexure A — the five tables in which Indian
entity figures). The contract nos. for Reliance Petroleum in which it figured
as non-contractual beneficiary and paid illegal surcharge were M/09/35,
M/10/17 and M/11/25.

The Government deliberately did not refer the said
contracts in which Reliance Petroleum was the non-contractual beneficiary
(according to the Volcker Report) while referring the non-contractual
beneficiary contract No. M/10/57 of Congress Party and contract No. M/09/54 of
Natwar Singh, to the Pathak Inquiry Authority for reasons well known.”

To determine this issue, CIC decided to examine the Virendra
Dayal Report and find out who holds this report. All the three parties have
denied having such report in their records. It was then gathered that probably
the Directorate of Enforcement (DoE) holds this report. The said DoE informed
that they fall under the 2nd schedule of the RTI Act and hence exempt to
disclose information. DoE further volunteered to say that the matter is under
investigation and therefore exempt u/s.8(1)(h) of the RTI Act.

The question that is now to be determined by CIC is as to
whether an exemption claimed u/s.24(1) in this manner can be acceptable by a
quasi-judicial authority acting under a Statute (i.e., CIC).

Under the circumstances, the Commission decided to call for a
report from the Directorate of Enforcement which has to be submitted within 7
days from the date of receipt of the Order affirming :

(i) whether the information asked for by the applicant,
i.e., entire file containing papers along with notings, etc. relating to
the appointment, scope of brief of special envoy, Shri Virendra Dayal, to
obtain papers relating to Volcker Report and his report to the Ministry after
meeting the UN officials is held by them or not ?

(ii) to file their written submissions as to why this
Commission should not order its disclosure under the First Proviso to S. 24(1)
of the Act ?

In (ii) above, if the plea is taken that the information
cannot be disclosed u/s.8(1)(h), the Directorate will submit reasons for the
same as required by the Delhi High Court in cases of this nature in W.P.(C) No.
3114/2007 — Shri Bhagat Singh v. Chief Information Commissioner and Ors.

This decision is made on 15-9-2008. We wait anxiously to find
out what is finally determined in this case — both as to corruption charge on
Reliance Petroleum and the powers of CIC v. the Protection u/s.24(1) of the
RTI Act.

[Shri Arun Agrawal v. PMO, No. 2nd Adjunct to Appeal
No. CIC/WB/A/2007/00417, dated 15-9-2008]

Multiple RTI applications :

The appellant, Shri Ajay Sharma asked for huge information to
Hindustan Petroleum Corporation Limited through different RTI applications
related to sanctioned strength of employees at different levels and the details
of functioning of canteen.

The information asked for has been denied stating that it is
not in public interest.

Decision :

On perusal of the documents submitted by the parties, it is noted that both the parties have erred. The appellant has unnecessarily submitted multiple applications for seeking information relating to canteen and staffing pattern, which are not confidential. The appellant should have asked for the information through a single application and also submitted only one appeal before the Commission against the decision of the respondent, which could have economised the resources in seeking and providing the information. Likewise, the CPIO could have given a comprehensive response in respect of all the appeals, rather then giving an identical reply in all the cases.

In view of the foregoing, the appellant is advised to prepare a comprehensive list of required information and resubmit to the CPIO, who should provide a pointwise response and thus furnish the information on the basis of available records within 15 working days from the date of receipt of fresh application. If any information is to be denied, the reasons for doing so should clearly be indicated for review, if necessary, by the Commission. The applicant should be free to seek inspection of relevant records and files so as to clearly specify the required information.

CIC also made a remark that a large amount of information asked for should be put in public domain in compliance of with S. 4(1) of the RTI Act.

[Shri Ajay Sharma v. HPCL, decision No. 3199/ IC(A)/2008, dated 1-9-2008]

Part B : The RTI Act

Attempt is being made that in this part besides reporting on the development and discussions on RTI Act at various forums, some Courts’ decisions be reported. Herewith that beginning:

S. 8(1)(j) :

Issue:

Whether information disclosing the names of the persons including address and amount, who have received more than Rs.1 lac from the Chief Minister Discretionary Fund can be given to the information seeker or it is an information, which stands exempted u/s.8(1)G) of the Act.

Held:

That the information asked for is not an information which is covered u/s.8(1)(j), nor does it stand exempted otherwise.

S.11:

Issue:

When beneficiary of the grant from Chief Minister’s Discretionary Fund is under an obligation to use the money so paid for the very same purpose, for which it has been paid – with the obligation upon the beneficiary to return the unused money in one go, and that too within the prescribed period, for which utilisation certificate has to be furnished by the District Magistrate after necessary verification – can it be said that it is an information which can seek confidentiality within meaning of S. 11 of the Act or can be treated as confidential by the beneficiary, treating it to be a third-party information.

Held: No

[PlO, Chief Minister Office v. SIC, UP and Others, decided on 1-7-2008 by the High Court of Allahabad]

Part C : Other News

• Seam in PM’s and CM’s special relief packages:

RTI application has revealed that a six-time former MP and relatives of a sitting MLA besides several former MLAs are among the well-off people who have helped themselves to the relief measures meant for poor, bereaved families in Yavatmal district, the epicenter of the farmers’ suicides.

The revelations point to large-scale corruption and irregularities in the implementation of the schemes. The schemes were meant to help the near and dear ones of those indebted farmers who were the sole breadwinners of their families and who had ended their lives, or other BPL families living along the State dairy’s milk procurement route. Its purpose was to enable the distressed families to supplement their income as farming had become uneconomical in this mainly unirrigated cotton-growing region.

• Dwindling number of tigers in Maharashtra’s forests:

The Times of India invoked the Right to Information Act to find out how much time the field directors spent on the field and found out that, on an average, they spent just 50 days a year inside forests. This has had a disastrous effect on wildlife management, say former forest officials and environmentalists, and may be one of the reasons that have led to the dwindling number of tigers in Maharashtra’s forests.

• Medical Insurance card:

Allwyn Ribeiro was most irked when he was turned away for the nth time by the Government Hospital at Byculla, Mumbai. The 43-year-old office superintendent for Central Railways had made three earlier trips to the hospital to collect his medical insurance card.

Frustrated, on the advice of an RTI activist, Ribeiro filed RTI application and asked the Public Information Officer of the Byculla hospital about: (a) the progress of his file, and (b) how many such applications they had processed in the last six months. He hardly expected his application to prompt such efficacy. “The very next day I received a call from the hospital to say ‘Come, pick up your card’,” says Ribeiro, who now swears by the effectiveness of the RTI Act.

• Four new Central Information Commissioners (CIC) :

Present CIC has five Commissioners including the Chief CIC. In this month (September) 4 more CICs are appointed:

Most interesting and unexpected, is the appointment of Shailesh Gandhi. He can be ranked as one of the most senior and effective RTI activists in the country. Entire RTI-activists’ community is looking forward to great performance by him, especially, in reduction of pendency of appeals in CIC office.

• UTI under RTI ?
The Bombay High Court has stayed the Central Information Commission (CIC)’s Order on the applicability of the Right to Information Act, 2005 on UTI Asset Management Company. UTI Mutual Fund and UTI Trustee Company have filed a writ petition challenging the CIC’s Order.

CIC had ruled that “Even though there is no specific provision in the RTI Act that a body owned, controlled or substantially funded by another public authority is also a public authority, yet from the purpose and object of the RTI Act, it is crystal clear that there should be transparency in the functioning of any institution, in which public money is deployed. The four sponsors are public authorities and when they, in turn, own another entity, such an entity has to be treated as a public authority.

Economic Times reports on RTI :

A very well-written article appeared in The Economic Times on 19-9-2008 written by two journalists. Extract from it :

What could a labourer running from pillar to post for his ration card, a student waiting eagerly for his passport, a housewife struggling without water supply or a senior citizen suffering due to pollution caused by an unauthorised factory near his residence have in common? The Right to Information (RTI) Act – the salvation for these diverse problems.

A notable achievement of the UPA Government along with the Rural Employment Guarantee Scheme, this key to information has empowered the aam aadmi to fight the formidable fortress of secrecy that enabled unscrupulous babus to shirk work and breed corruption. RTI is no magic that can make corruption vanish in a jiffy, but it has put the fear of scrutiny firmly in the minds of Government employees. Gone is the air of confidence that enabled the corrupt in the Government to demand ‘speed money’ openly without any apprehension of being caught. The experience till now suggests that most Government departments attempt to clear pending work when they are questioned and responsibility is fixed.

Nirav Shah

Part A : CIC’s decisions, Part B : The RTI Act, Part C : Other News

r2i

Delay in reply by PIO
and change of stand, etc. :

Three interesting points are decided in CIC’s decision dated
30-4-2008 in the matter of Shri Deepak H. Chhabria of Mumbai v. Ministry of
Overseas Indian Affairs.

In Shri Chhabria’s RTI application, he wanted to know whether
a demand draft of Rs.25,000 sent by the Employment Promotion Council of Indian
Personnel, Mumbai, was encashed by the Ministry for renewal of RC for 25 years,
etc.

1.1 RTI application filed on 8 March, 2007 was first replied
by the PIO on 21 June, 2007, i.e., a delay of more than two months,
beyond the period (one month) stipulated for reply in the RTI Act.

1.2 The Commission, therefore, decided to issue a show-cause
notice as to why penalty should not be levied for this delay under Section 20(1)
of the Act.

2.1 In the first reply given, the respondents informed the
appellant that they were collecting the information which would be supplied to
him. However, later through a letter of 14 August 2007, they informed the
appellant that they regarded the information asked for as third-party
information.

2.2 The Commission was sorry to see this change of stand of
the respondents. The Commission examined the issue and came to the conclusion
that even though the information asked is about others than the appellant who
filed the application, in view of the public interest involved in the case, this
cannot be regarded as third-party information. The matter, obviously, involves
and affects a lot of persons. It, therefore, directed the respondents to
disclose all the documents/files on the subject to the appellant by 21 May 2008.

3.1 The Commission also noticed that the replies received by
the appellant from the respondents were signed neither by the PIO, nor by the
Appellate Authority but other officials in the Department.

3.2 The Commission warned the respondents to henceforth
ensure that provisions of the Act are adhered to in letter and spirit and that
response to the RTI applications and appeals are signed by the PIO and the
Appellate Authority, respectively. They were also directed to mention the name
of the Appellate Authority while making the first response to the RTI
application.

(No. CIC/OK/A/2007/01297 decided on 30-4- 2008)

Inspection of files
where investigation is in process :

This is the case of one Shri Dhirendra Krishna. In this case
the decision was given on 29-2-2008. In the said decision, while quoting from
the judgment of the Delhi High Court in Shri Bhagat Singh v. Chief
Information Commissioner & Ors., (Refer BCAJ, May 08) the Commission had
concluded as follows :

“To enable us, therefore, to examine as to the manner in
which inspection of the concerned file will impede the process of prosecution
in this case, if at all, particularly since this process has been pending for
so long, the concerned file will be submitted to us for our inspection on
2-5-2008 at 4.00 p.m. in the office premises of the CBI.”

The inspection was shifted to the CIC’s office. In the
submissions, CBI’s representative submitted a statement of details of Court
hearings. The same were from 27-1-2000 to 26-3-2008, next hearing fixed on
2-9-2008. As many as 17 hearings had taken place along with number of
adjournments from time to time.

The CBI representative submitted that the failure to frame
charges was not a result of any resistance on the part of the prosecution, he
submitted that in this case the appellant together with other co-accused in the
same case have sought discharge first in the Trial Court and then from the High
Court, but their discharge applications have been dismissed. He further
submitted that whereas they have brought all the relevant records for the
inspection, they have no difficulty in allowing inspection of any record held by
them in relation to the case of appellant Shri Dhirendra Krishna, whether relied
upon and therefore filed before the Trial Court or indeed records that have not
been filed and have not been relied upon, which appellant Shri Dhirendra Krishna
has in his appeal before us and subsequent representations repeatedly claimed to
exist by pleading that such records will assist him in contesting the case.
These are open for inspection by appellant Shri Dhirendra Krishna. With this
therefore, respondents have in fact, withdrawn the exemption from disclosure
sought u/s.8(1)(h), agreeing to inspection which will include any record of
which a list was handed over to the appellant Shri Dhirendra Krishna with a copy
retained on the CIC’s record in the hearing on 22-2-2008.

It is difficult to imagine why the CBI changed its stand, may
be after coming to know of the contents of the judgment of the High Court of
Delhi as reported in May 2008 issue of BCAJ.

Part B : The RTI Act

Part II of Chapter 5 of the Annual Report 2005-06 as
published by the Central Information Commission deals with suggestions for
reforms.

Clause (g) of S. 25(3) mandates that each such report shall
state :

(g) recommendations for reform, including recommendations
in respect of the particular public authorities for the development,
improvement, modernisation, reform or amendment to this Act or other
legislation or common law or any other matter relevant for operating the right
to access information.

In this part, the Commission has listed suggestions received
from different public authorities for reforming the Act to ensure better
implementation. Some of such reforms suggested are :

Public Information Officers should be provided with supporting staff and other infrastructure such as computer, printer, space for staff, etc.

Time limit for destroying old files be re-evaluated and re-fixed and that clarifications should be issued regarding entitlement of the questioner to very old records, which will not help the public.

A specific amendment may be made in the RTI Act with reference to the period up to which in-formation can be requested/furnished.

The fee be increased for detailed information covering large periods of time, which is sought in a format in which the information is generally not maintained by Ministries/Departments.

This suggestion is given by several public authorities as they feel that this is a lacuna, which needs to be taken care of to discourage frivolous and superfluous requests under the Act.

Several public authorities want some sort of exemption from the purview of the Act. For example, while the Union Public Services Commission (UPSC, Ministry of Personnel, Public Grievances & Pensions) requested exemption from disclosure of information relating to examination and recruitment/ appointment cases, the DMRC requested __ general exemption as it is undertaking a time-bound exercise of completing the Delhi Metro.

The Supreme Court of India (Ministry of Law , Justice) has sought exemption from the Act for any information, which, in the opinion of the Chief Justice of India or his nominee, may adversely affect or interfere or tend to interfere with the independence of the judiciary or administration of justice.

“‘.. The Supreme Court of India has suggested that a decision by the Chief Justice of India under the Act should not be subjected to further appeal. It has suggested adding the following proviso to S. 19(3) :

“Provided further that the second appeal arising out of the Order passed by an officer of the Supreme Court of India inferior in rank to Registrar General of the Supreme Court of India shall lie before the Registrar General of the Supreme Court of India”.

Some public authorities have suggested that provisions of the RTI Act be extended to cover private sector as well or exemption be considered for public sector undertakings in the same field, like banks, insurance companies, Sail v. Tata Steel, RIL v. ONGe, etc.

Canara Bank (Ministry of Finance) has suggested making the application fee mandatory for appeals as well.

The CBI has observed that if the immediate Appellate Authority has also rejected a request for information, it is not fair to penalise the Central Public Information Officer alone for not providing the information.

Many suggestions have been received for safe-guards to be built into the Act, such as :

Safeguards to discourage those who request personal information,

Safeguards to ensure that the Act does not become a tool in the hands of delinquent employees to serve their own interests,

Requested the inclusion of provisions to check the bona fide of the requester and to refuse information to those who are not directly concerned with it or might use it for promoting their own business interests or may misuse it.

The time frame of one month for replying to queries may be increased, the number of questions in a single representation may be restricted to only one; suitable amendment may be made in the Act, so as to specify / curtail the number of applications an applicant can make on the same issue.

In conclusion, the report states that the stocktaking of the implementation of the Act reveals that more still needs to be done.

These include:

Proper indexing and computerisation of records for regular and consistent publishing on the website of the public authority, so that members of the public do not need to personally file an application or VISitthe official to seek information.

Public authorities must also begin to use open access software such as Wiki or Plone to upload information that they have disclosed to citizens under RTI on their website. They could initially upload only the information which is most requested by citizens, and steadily, say, within the next 12 months, move towards a system where all information that is requested is automatically made public, unless it falls under the exempted category.

Finally, an attitudinal change is needed among public officials who still believe that they have a monopoly over records and resent the public’s demand for ‘too much’ information for ‘too less’ a fee.

Public authorities must attempt to make the Act as citizen-friendly as possible rather than pitch for exemption from its purview. Initiatives such as the ones listed above would be more in line with the letter and intent of the Act, which has placed on public authorities the onus of its effective implementation.

Part C : Other News

Government’s apathy for RTI Act:

‘Mint’ under the feature ‘Our View’ has made very revealing remarks on the Government’s apathy to ‘f’ spread awareness of the RTI Act, even though the Act mandates it to do it. ‘Mint’ writes:

“The contrast is a stark one. While cricket fans are endlessly reminded through TV spots about the Governments’ flagship Bharat Nirman programme, there is no attempt to publicise the provisions of the landmark Right to Information Act, 2005. Why? Because the former is a potential vote winner, while the latter is politically useless and a bureaucratic nightmare.”

• Judiciary under RTI Act:

After the speaker of Loksabha (reported in BCAJ May issue) now, the former Chief Justice of India, J. S. Verma has commented on the issue of the coverage of the Courts under the RTI Act.

In reply to the question: How do you view CJI K. G. Balakrishnan’s controversial statement that being a constitutional office holder he was not answerable under RTI ?

He replies: In a democracy, no one is unaccountable. The mode of enforcement of accountability may, can and should vary according to the nature and position of the public functionary. The CJI is no exception to this rule. The Constitution provides for his removal, which is the ultimate form of accountability. He is accountable even for his judicial functioning. He has to hear cases in open Court and give reasoned decisions which are subject to public scrutiny. So, where is the scope to suggest that he can’t be accountable for his administrative functioning?

Further, in reply to the question: Doesn’t the judiciary’s hostility to RTI make a mockery of the three resolutions of judicial accountability passed by the SC Judges under your leadership?

His reply is : When those three resolutions were unanimously adopted on May 7, 1997, I did hope that they would be institutionalised in due course. Much as I admire the SC ruling that every political candidate should disclose his antecedents, I cannot imagine how a judge can hold others to a standard he does not apply to himself.

It appears that CJI, Mr. Balakrishnan, still maintains that CJI is not ‘a public authority’ within the meaning of the RTI Act.

It is now learnt that undeterred by the Chief Justice of India’s assertion that he does not come under the Right to Information (RTI) Act, the Central Information Commission (CIC) has decided to take up the issue in a Full-Bench hearing soon.

The issue is likely to come up before the Supreme Court breaks for recess. The issue comes at a time when the CJI has mellowed down from his earlier stance and said that his office is that of a public servant. “The CJI is a constitutional authority. RTI does not cover constitutional authorities”, the CJI had recently remarked. In a statement later, he clarified that he was a public servant and the issue of being governed under the Act was debatable.

• Interesting incident in SIC’s office:

Hussain, an Indian Forest Service officer of the 1980 batch, was appointed Secretary to the Maharashtra Information Commission a year ago. On one day in May, when Hussain reached the office, he was told that he had already been relieved and that he should get in touch with his parent (forest) department for his new assignment. According to reports, Buldhana collector Vasant Poreddiwar has taken over as the new Secretary of the Commission.

Hussain had been busy organising a one-day meeting of Chief Information Commissioners at Pune. After the meeting, when he reached his office in the New Administrative Building across Mantralaya, he saw Poreddiwar already occupying his office. He was then informed that he had been repatriated to his parent (forest) department. It was a mockery of the Right to Information Act. The CIC, which decides on applications under the RTI, failed to inform Hussain that he had been transferred.

• Does R in RTI mean ‘RedressaI’?:

One RTI activist writes: The Right to Information Act, in its second year, can well be christened the Redressal through Information Act. For, in an un-recorded trend, the 2005 law, meant to empower citizens with details of Government decisions, is now being increasingly used as a means of redressal of grievances.

Chief Information Commissioner Wajahat Habibullah says that the use of RTI as a grievance-redressal mechanism was not totally unexpected, at least by activist groups. It is noticed that RTI now is being largely used for getting details of delayed. passports, ration cards, denial of pensions and son. While the CIC is clear on the purpose of RTI, in such cases where there is a violation of rules or law, citizens certainly can be helped. The pattern of redressal grievances is picking up in the country. Some of the instances are :

A resident of Jhansi got details of what he al-leged was the forged DNA fingerprinting report of his 5-year old son, which his wife had got done.

An appellant got details of the computation of his pensionary benefits denied to him for the last 10 years.

The North-Eastern Railways was asked to furnish all information to an applicant relating to” recruitment and promotion of engineers, since . he had alleged malpractices in promotion of staff .

The Municipal Corporation of Delhi was asked to respond in 10 days to an applicant who had for long been seeking information regarding permissible limits for construction on a plot.

A group of appellants from Varanasi filed a complaint against the Ministry of Textiles, since they were aggrieved with non-implementation of; health-insurance scheme for weavers. The Ministry was asked to settle the grievances within a month.

The CIC made a “strong recommendation” to the Delhi Development Authority (DDA) to allot a plot under the Janata category in Rohini, since the applicant’s allotment number was wrongly quoted by the bank and the allotment cancelled. “This amounts to denial of the right of a member of the public and also denial of natural justice,” the CIC order noted.

The Employees Provident Fund Organisation was ordered to return Rs.625 deducted from an applicant’s subsistence allowance to be paid to -: the Prime Minister’s Relief Fund, since it was done without taking his consent.

RTI exposes nepotism in Kerala Government:

RTI query has put Kerala’s left Government in a spot, inviting charges of promoting nepotism and also raising questions about the CPM’s stand on ethics in public life.

At the centre of the storm is Kerala Health Minister P. K. Sreemathi, who has inducted her daughter-in-law Dhanya M. Nair into her personal staff. This was revealed by the General ;.,Administration Department in response to RTI query seeking details of Sreemathi’s personal staff. The request was filed by AIADMK State Secretary Sreenivasan Venugopal.

In reply, Venugopal got a list of 22 names including Dhanya, who is married to Sreemathi’s son. She had joined the staff as a clerk and was only recently promoted to the post of additional personal assistant. Her salary works out to around Rs. 17,000 p.m. Dhanya will also be eligible for pension once she completes 2 years in her post.

Delays in appeals before Central Information Commission and the State Information Commissions:

Almost everywhere it has been a sorry state of affairs. Recently, it has come to the public notice that in UP, more than half of over 9000 appeals and complaints made are pending. Out of 9946 appeals and complaints received in UP SIC’S office during 2006-07, as at the end of March 2008, 4088 appeals and complaints have remained pending .

CIC’s Press Release:

To foster the spirit of ‘share & care’ amongst the stakeholders, the Central Information Commission has provided a platform on its website

where the public authorities/Central Government Ministries/Departments can post what they consider a ‘Best Practice’ with regard to implementation of the RTI in their set-up. The enlight- I ened citizens among us who want to publicly acknowledge and recognise the ‘heroes’ amongst the public authorities who they consider to have innovated a procedure in their organisations or improved on the existing ones, so as to make the accessibility of information hassle-free to the larger masses may also share their experience and what they liked about the practice in the public authority, so that it could be replicated and/ or further improved.

Nirav Shah

Part D : Good Governance

Jean Dreze & Amartya Sen in their book “An Uncertain Glory – India and Its Contradictions” write: The issue of accountability relates closely to that of corruption, which has received a great deal of attention recently in Indian political debates. In the absence of good systems of accountability, there may not only be serious neglects of duties, but much temptation for officials to deliver at high ‘prices’ what they are actually supposed to deliver freely, as part of their job. This ‘reward’, aside from being an example of corruption based on official privilege, can also deflect a facility from those for whom it was meant to others who have means and willingness to buy favours. Corruption has become such an endemic feature of Indian administration and commercial life that in some part of the country nothing moves in the intended direction unless the palm of the deliverer is greased.

levitra

Nirav Shah

PART B: RTI Act, 2005 – The Use of Right to Information Laws in India:

A Rapid Study based on the Annual Reports of Information Commissions (2011-12) has been made by Commonwealth Human Rights Initiative (CHRI), New Delhi. Research and Report compiled by Venkatesh Nayak, Amrita Paul & Seema Chaudhary, General Editor is Maja Daruwala.

It is released in October’ 2013. Executive Summary thereof is being produced in parts in this and further next few issues:

I. Availability of the Annual Reports of Information Commissions on Websites Main findings of the study:
• Although in our previous study we had found the Mizoram State Information Commission defaulting over public disclosure of its Annual Reports, it has now uploaded all Annual Reports up to the year 2011-12. Seven State Information Commissions identified in our study last year, namely, those in Gujarat, Madhya Pradesh, Manipur, Sikkim, Tamil Nadu, Tripura and Uttar Pradesh continue to be defaulters in terms of displaying their Annual Reports on their websites. These websites do not contain even a link for ‘Annual Reports’.

• Only Maharashtra State Information Commission has uploaded on its website, its latest Annual Report due, for the calendar year 2012. No other Information Commission has uploaded its latest Annual Report due, for either the calendar year (January – December 2012) or the financial year (April 2012 – March 2013).

• The Central Information Commission and 9 Information Commissions in the States of Andhra Pradesh, Bihar, Chhattisgarh, Jammu and Kashmir (J&K), Karnataka, Meghalaya, Mizoram, Nagaland and Rajasthan have uploaded their Annual Reports for all the years up to 2011-12. Others have displayed Annual Reports for one year or more but not for the period 2011-13.

• With the exception of the Central Information Commission and the State Information Commissions of Bihar, Chhattisgarh, Maharashtra and Rajasthan, all other Information Commissions have published their Annual Reports in English only. Recommendations:

• Publishing Annual Reports in a timely manner at least within six months of the ending of the reporting year must become a priority with all Information Commissions.

• Information Commissions will be able to compile their Annual Reports in a timely manner only if they receive statistical data from all public authorities under their jurisdiction. According to Section 25 (2) of the Central RTI Act and Section 22(2) of the J&K RTI Act, the duty of ensuring reporting of RTI returns from all public authorities lies squarely on the concerned Ministries. Unless they apply pressure on public authorities under their jurisdiction they will not fall in line to submit RTI returns in a timely manner. They must insist filing of RTI returns at least every quarter. The nodal department charged with ensuring the implementation of the RTI law under each appropriate Government, must send frequent reminders to the other Ministries and Department to do their mandated job.

• Even if the RTI returns are not forthcoming from the ministries/departments, Information Commissions have the statutory duty to publish a report of their own activities at least and submit it to the respective Legislatures in order to account for spending the taxpayers’ money. This would provide them the opportunity to publicly name and shame the defaulting public authorities and compel compliance with the reporting requirement under the respective RTI laws.

• At the very minimum, all Annual Reports must be drafted in the official languages used by the appropriate Governments.

levitra

Nirav Shah

PART A: Judgment of H.C. of Bombay

Section 2(h): Public Authority:

When some citizens sought certain information from Shikshan Prasarak Mandali Trust (SPM), it responded by taking the stand that SPM is not falling within the definition of Public Authority. The contention of SPM was:

“The argument is that the Trust is not a public authority within the meaning of Section 2(h) of the RTI Act. An Educational Institution, managed and administered by the Trust receives the grants and assistance from the Government. It is at best that Institution which can be said to falling within the definition of the term ‘public authority’ but certainly this will not take within its import or fold the public charitable trust which merely manages and administers the Educational Institution. A public charitable trust pure simple cannot be said to be a public authority under the RTI Act. It cannot be said to be an Authority or body owned or controlled by the State Government.”

The Contention of Maharashtra Information Commission was:

“The term “public authority” as defined in the RTI Act, would make it clear that first part of it clarifies that all statutory bodies and authorities would be covered and the latter part of it includes bodies owned, controlled or substantially financed by the government. Now, when non-Governmental organisations, substantially financed directly or indirectly by funds provided by the appropriate government are brought within the ambit and purview of the RTI Act, then, all the more a conclusion is inescapable that the petitioner trust’s plea could not have been entertained. It is reading the Act as if it applies to an activity or function of a public trust but it will not apply to that public trust even if that activity or function is being performed under its auspices or control. If every single Educational Institution is established, managed, administered and controlled by the public trust or societies or bodies of the present nature, then, a defence will always be raised to resist the application of the Act by urging that the Act will apply to its activity or function and not to it. This will defeat and frustrate the Act. It would run counter to the Legislative intent in making all such bodies, organisations, including non-Governmental ones, accountable and answerable to the public. For all these reasons, it was submitted that the petition be dismissed.

Public authorities should realise that in an era of transparency, previous practices of unwarranted secrecy have no longer a place. Accountability and prevention of corruption is possible only through transparency. Attaining transparency no doubt would involve additional work with reference to maintaining records and furnishing information. Parliament has enacted the RTI Act providing access to information, after great debate and deliberations by the Civil Society and the Parliament. In its wisdom, the Parliament has chosen to exempt only certain categories of information from disclosure and certain organisations from the applicability of the Act.”

The HC quoted some paras from the judgment of the Supreme Court in case of Institute of Chartered Accountants vs. Shaunak H. Satya reported in A.I.R. 2011 S.C. 3336, [ RTIR IV (2011) 82 (SC)] In that context and dealing with some of the provisions of the Act, it was held as under:

“The information to which RTI Act applies falls into two categories, namely

(i) information which promotes transparency and accountability in the working of every public authority, disclosure of which helps in containing or discouraging corruption. Enumerated in clauses (b) and (c) of Section 4(1) of RTI Act. and

(ii) other information held by public authorities not falling u/s. 4(1)(b) and (c) of then RTI Act. In regard to information falling under the first category, the public authorities owe a duty to disseminate the information wide suo motu to the public so as to make it easily accessible to the public. In regard to information enumerated or required to be enumerated u/s. 4(1)(b) and (c) of RTI Act, necessarily and naturally, the competent authorities under the RTI Act, will have to act in a proactive manner so as to ensure accountability and ensure that the fight against corruption goes on relentlessly. But with regard to other information which does not fall u/s. 4(1)(b) and (c) of the Act, there is a need to proceed with circumspection as it is necessary to find out whether they are exempted from disclosure.

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. The object of RTI act is to harmonise the conflicting public interest, that is, ensuring transparency to bring in accountability and containing corruption on the one hand, and at the same time ensure that the revelation of information, in actual practice, does not harm or adversely affect other public interests which includes efficient functioning of the Governments, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information, on the other hand. While Sections 3 and 4 seek to achieve the first objective, Sections 8, 9 10 and 11 seek to 0achieve the second objective. Therefore, when Section 8 exempts certain information from being disclosed, it should not be considered to be a fetter on the right to information, but as an equally important provision protecting other public interests essential for the fulfillment and preservation of democratic ideals. Therefore, in dealing with information not falling u/s. 4(1)(b) and (c), the competent authorities under the RTI Act will not read the exemptions in Section 8 in a restrictive manner but in a practical manner, so that the other public interests are preserved and the RTI Act attains a fine balance between its goal of attaining transparency of information and safeguarding the other public interests.” “Among the ten categories of information which are exempted from disclosure u/s. 8 of the RTI Act, six categories which are described in clauses (a), (b), (c), (f), ( g) and (h) carry absolute exemption. Information enumerated in clauses (d), (e) and (j) on the other hand get only conditional exemption for a specific period, with an obligation to make the said information public after such period. The information referred to in clause (i) relates to an exemption for a specific period, with an obligation to make the said information public after such period. The information relating to intellectual property and the information available to persons in their fiduciary relationship referred to in clauses (d) and (e) of Section 8(1) do not enjoy absolute exemption. Though exempted, if the competent authority under the Act is satisfied that larger public interest warrants disclosure of such information, such information will have to be disclosed. It is needless to say that the competent authority will have to record reasons for holding that exempted information should be disclosed in larger public interest.”

H.C. then gave meaning to certain words/ terms covered in Section 2(h), e.g. ‘established’, ‘constituted’, ‘owned’, ‘controlled’ or ‘substantially financed by funds provided directly or indirectly.’

The word “established” means “to bring into existence” whereas the word “constituted” does not necessarily mean “created” or “set up” though it may mean that also. The word is used in a wider significance and would include both the idea of creating or establishing and giving a legal form to the body (see A.I.R. 1959 S.C. 868 M/s. R.C. Mitter and Sons vs. Commissioner of Income Tax, West Bengal). It includes in the later part “any body owned, controlled or substantially financed” and equally a non-Governmental organisation, sub-stantially financed directly or indirectly by funds provided by appropriate government. Thus, any body owned, controlled or substantially financed is being brought within the net and purview of the definition so as to clearly set out its duty and obligation to provide information and thereafter, make it possible for the citizens to enforce it. It is very clear that the Legislature did not exhaust itself but included bodies owned, controlled or sub-stantially financed, directly or indirectly by funds provided by appropriate Government. Therefore, to urge that there is no control over the public charitable trust by the appropriate government or if at all there is any control or the element of public dealings come in, that is only in relation to Educational Institutions which are run, administered and managed by the Trust is nothing but an attempt to escape from being covered by the Act and complying with its mandate. A definition as inserted and worded in Section 2(h) of the RTI Act can safely be termed as partly exhaustive and partly inclusive. The choice of words as noted above would mean enlarging the meaning of the words or phrases occurring in the statute.

HC further noted:

“A citizen is not expected to indulge in futile litigation and endless chase in overcoming technical hurdles and obstacles for seeking information. Public authorities are not obliging him by giving him information because the rule of the day is transparency, accountability in public dealing and public affairs and in relation to public funds. In cases of present nature, the information can be sought by approaching both the educational institutions and the parent entity controlling them or either. However, the duty and obligation to provide information as long as the right to seek it is enforceable by the RTI Act must be discharged by the Public Authority. In this case, it is the petitioner Trust.”

For the reasons aforestated, this petition fails, Rule is discharged without any costs. The finding and conclusion that the RTI Act is applicable to the petitioners and they are obliged to provide information in relation to its educational institutions is confirmed.

[Shikshan Prasarak Mandali vs. Maharashtra SIC & ors. Writ petition decided on 18.10.2012] [Citation: RTIR I (2013) 234 (Bombay)]

Nirav Shah

PART A: Decisions of CIC

Section 7(1) of the RTI Act Vide RTI application dated 5-7-2011, the appellant sought information regarding illegal accounts of Indians in Liechtenstein, obtained from the German government and steps taken by the Government of India to deal with black money.

Not satisfied with the response of the PIO and FAA, before the Central Information Commission, the appellant in support of his argument referred to the Supreme Court decision dated 4-7-2011, in W/P (Civil) 176 of 2009, Ram Jethmalani vs. Union of India, and submitted that exemption u/s. 8(1)(a) and (f) as claimed by the CPIO was not tenable. He also made a reference to CIC decision (appeal OK/C/2008/00897 dated 15-7-2011) supporting his argument. The CPIO submitted that the government has filed a modification petition which is pending in the Supreme Court.

The public authority brought to the notice of the Commission a para of the judgement dt 4.7.2011 of Honourable Supreme Court in W.P (Civil) 176 of 2009, Ram Jethmalani & Ors vs. Union of India which reads as follows:

“That the special investigation, constituted pursuant to the orders of today by this court, shall take over the matter of investigation of the individuals whose names have been disclosed by Germany as having accounts in Banks in Liechtenstein and expeditiously conduct the same. The Special Investigation Team shall review the concluded matters also in this regard to assess whether investigations have been thoroughly and properly conducted or not, and on coming to the conclusion that there is a need for further investigation shall proceed further in the matter. After conclusion of such investigation by Special Investigation Team, the respondents may disclose the names with regard to whom show cause notices have been issued and proceedings initiated.”

The public authority has also submitted that the Union of India has moved application for seeking recall and/or modification of orders dated 4-7-2011.

The Commission decided that since the information sought by the appellant was sub-judice, the appeal be dismissed.

[Paras Nath Singh vs. CBDT, New Delhi: CIC/ DS/A/2011/003377 & 003607/RM: Decision dated 12-11-2012]

Section 8(1)(j) of the RTI Act

The appellant had sought certain information from the CPIO including names of assessees/cases in which scrutiny is complete. The CPIO held that Trusts/assessees are public authority and their activities are of public nature and hence information about them should be in the public domain. Accordingly, the number of cases in which scrutiny was completed, was provided. However, names of such assessees were withheld citing that no public interest will be served. The Commission held that disclosure of names of assesssees whose returns have been scrutinised, would constitute an unwarranted invasion of privacy of the assessee, if this information is placed in the public domain and hence it is exempted from disclosure u/s. 8(1)(j) of the RTI Act. [Rakesh Kumar Gupta vs. Asst. Director of IT (Exemptions), Trust Circle-II & Addl. Director of IT (Exemptions), Range-1, Delhi: CIC/DS/A/2011/ 003072/RM decided on 6-11-2012]

Section 6(1) of the RTI Act

The issue was whether the applicant can extend the scope of his RTI application at the Appellate stage.
Vide RTI application dated 6-9-2010, the appellant had sought comments of the public authority to a complaint which had been filed by him earlier on 11-5-2010 regarding alleged misuse of government vehicles by Smt. C. Chandrakanta, the then Joint Commissioner, Income Tax Range-IV, Jalandhar and other unlawful activities.

Before the CIC, the applicant submitted that he had sought to know whether any enquiry was conducted regarding leaving of the headquarters by Smt. C. Chandrakanta without prior permission from a competent authority. The CPIO had responded that no enquiry was conducted. The AA in his order stated that the appellant had not sought any reasons for not initiating any action in his RTI. As such the order of the CPIO was justified. The appellant insisted that the public authority should provide him the reasons. In support of his submission he quoted CIC order dated 11-9-2008 – Smt. Sarla Rastogi vs. ESIC.

In hearing before CIC, the appellant submitted that in response to his query as to whether any enquiry was conducted in regards to the leaving of headquarters by Smt. Chandrakanta, the CPIO responded that no enquiry was conducted. The appellant submitted that reasons for the same should be provided and referred to section 4(1)(d) of the RTI Act as also CIC decision in the case of Smt. Sarla Rastogi vs. ESIC (Appeal No. CIC/MA/A/2008/01106 dated 11-9-2008). The AA had upheld the decision of the CPIO on the grounds that in his RTI, the appellant has not sought reasons.

Decision:

The Commission observed that the CPIO had replied to the specific queries raised in the RTI by the appellant. With the said reply, the query of RTI application is satisfied. There is no provision to raise subsequent questions as an extension of the RTI query, as sought by the appellant in his first appeal. Hence, the Commission does not find any merit in the appeal. The case is disposed of. [R.K. Mahajan vs Income Tax Department, Jalandhar: CIC/DA/A/2011/0001476/RM: decision dated 7-6-2012]

RTI (Regulation of Fee and Cost) Rules, 2005

The Commission decided that it was in agreement with submissions of the appellant that the application fee sent by him in favour of Accounts Officer, DGIT, New Delhi, should not have been returned and the CPIO was not correct, in asking the appellant to redeposit the application fee in favour of ZAO, CBDT, New Delhi. Rule 3 of the Right to Information (Regulation of Fee and Cost) Rules, 2005 stipulates that the amount is payable to the Accounts Officer of the public authority.

Decision:

The Commission directs the public authority to ensure that in the future, the application fee sent in the name of Accounts Officer is not returned. DoPT orders issued on 5-12-2008 (OM No. F.10/9/2008-IR) shall be brought to the notice of all concerned officials handling RTI matters. Insofar as the RTI request is concerned, the Commission sees no reason to interfere with the order of the CPIO/AA.

[Nitesh Kumar Tripathi vs DGIT (Vigilance), New Delhi: CIC/DS/A/2011/002840/RM: decision dated 21-9-2012]

levitra

Nirav Shah

PART A : ORDERS of CIC & the Supreme Court

Section 8(1)(a) & (e) of RTI Act

CIC, Shailesh Gandhi has made an order of great interest.

The following information was sought: 1. Total amount of money deposited by Indian citizens in nationalised Indian banks during the period 2006 to 2010. Provide information for each year separately;

2. (a) Information till date regarding total amount of loan taken but not repaid by industrialists from Indian nationalised banks and total amount of interest accumulating on such unpaid loans; and

(b) Details of default in loans taken from public sector banks by industrialists. Out of the above list of defaulters, top 100 defaulters, name of the businessman, address, firm name, principal amount, interest amount, date of default and date of availing loan.

(c) Steps being taken for putting information sought in query 2(a) and list of defaulters on the website of the respondent — Public authority.

By letter dated 14-10-2010, the CPIO informed the appellant that query 1 was transferred to DEAP, queries 2(b) and (c) were transferred to DBOD/DBS.

By letter dated 22-10-2010, the CPIO denied information on query 2(b) on the basis that it was held in fiduciary capacity and was exempt from disclosure u/s.8(1)(a) and (e) of the RTI Act.

In the first appeal, the FAA stated inter alia that the CPIO, DEAP had provided certain information vide letter dated 12-10-2010. Further he stated: ‘As regards the contention of the appellant with respect to his query at point 2(b) (which relates to the default in loans taken by industrialists from public sector banks and matters associated with them), I find that the CPIO, DBS has specified that the information received from banks, in this regard is held by the Reserve Bank in fiduciary capacity and as such it cannot be disclosed in terms of clauses (a) and (e) of section 8(1) of the Act. There can be no doubt that the information on defaulters received from banks is held by the Reserve Bank in a fiduciary capacity and confidential in nature. Therefore, the exemption claimed u/s.8(1)(e) is, without doubt, proper in the eyes of law. Whether the exemption provided by clause (a) of section 8(1) would be attracted in given case would depend upon the factual position. In this matter, since section 8(1)(e) is clearly attracted, I do not propose to consider the other exemption which the CPIO, DBS has made use of for withholding the information.’

The order of CIC is very powerful and I consider it as gem, for information analysis of section 8. Hence, instead of my summarising it, I reproduce the Completer Decision announced on 15th November, 2011:

“Based on perusal of papers and submission of parties, it appears that no information has been provided in relation to query 2(c), despite the order of the FAA. As regards query 2(b), the respondent has contended that the information sought was exempt u/s.8(1)(a) & (e) of the RTI Act. The Commission will first consider the claim of exemption u/s.8(1)(a) of the RTI Act made by the PIO. The PIO has claimed exemption u/s.8(1)(a) but not explained how this would apply. The first Appellate Authority has not given any comment on this. No justification was offered at the time of hearing as well. Section 8(1)(a) exempts, ‘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;’. It appears that the PIO is claiming that the economic interests of the State would be prejudicially affected. It is impossible to imagine that any of the other interests mentioned in the provision could be affected. This Bench rejects the contention of the PIO that the economic interests of India would be affected by disclosing the names and details of defaulters from public sector banks. If it means that such borrowers would not bank with public sector banks for fear of exposure, it would in fact be in the economic interest of the nation. This Commission does not accept the claim of exemption u/s.8(1)(a) by the PIO. It is also unlikely that the economic well-being of the nation could get affected adversely by disclosing the names and details of defaulters. The Indian economy is dependent on far stronger footings.

The Commission will now examine the claim for exemption u/s.8(1)(e) of the RTI Act.

Section 8(1)(e) of the RTI Act exempts from disclosure “information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information”.

This Bench, in a number of decisions, has held that the traditional definition of a fiduciary is a person who occupies a position of trust in relation to someone else, therefore requiring him to act for the latter’s benefit within the scope of that relationship. In business or law, we generally mean someone who has specific duties, such as those that attend a particular profession or role, e.g., doctor, lawyer, financial analyst or trustee. Another important characteristic of such a relationship is that the information must be given by the holder of information who must have a choice — as when a litigant goes to a particular lawyer, a customer chooses a particular bank, or a patient goes to a particular doctor. An equally important characteristic for the relationship to qualify as a fiduciary relationship is that the provider of information gives the information for using it for the benefit of the one who is providing the information. All relationships usually have an element of trust, but all of them cannot be classified as fiduciary. Information provided in discharge of a statutory requirement, or to obtain a job, or to get a licence, cannot be considered to have been given in a fiduciary relationship.

Information provided by banks to RBI is done in furtherance of statutory compliances. In fact, where RBI requires certain information to be furnished to it by banks and such banks have no choice but to furnish this information, it would appear that such requirement of RBI is directory in nature. Moreover, no specific benefit appears to be flowing to the banks from RBI on disclosure of the information sought by the appellant. Consequently, no fiduciary relationship is created between RBI and the banks.

The respondent has also argued that information about customers is held by banks in a fiduciary capacity and hence disclosure of the same would violate the fiduciary — trust placed by borrowers of the banks. The Commission finds some merit in this argument. Information of customers is held by banks in a fiduciary capacity. If this information is disclosed to the RBI and subsequently furnished to the citizens under the RTI Act — it may violate the fiduciary relationship existing between the customers and the banks. Therefore, the information sought in query 2(b) is exempt from disclosure u/s.8(1)(e) of the RTI Act. However, if a customer defaults in repayment, should the information about the default also be considered as information held in a fiduciary capacity, is a moot question. The lender is likely to take all measures including filing suits to recover the money due, and these actions would mean publicly disclosing the default amounts. In such circumstances the bank would make these details public, and not feel fettered by the fiduciary nature of the relations.

However, I am not going into delving into this trend of thought and accept that the information about the default by a borrower may be considered to be information held by a bank in a fiduciary capacity. When the Commission comes to the conclusion that the exemptions of section 8(1) of the RTI Act apply, it needs to consider the provision of section 8(2) of the RTI Act which stipulates as follows

:
“Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with s.s (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.”

Section 8(2) of the RTI Act mandates that even where disclosure of information is protected by the exemptions u/s.8(1) of the RTI Act, if public interest in disclosure outweighs the harm to such protected interests, the information must be disclosed under the RTI Act. There is no requirement for the existence of any public interest to be established when seeking or giving informa-tion. However, if an exemption applies, then it must be considered whether the public interest in disclosure outweighs the harm to the protected interests.

According to P. Ramanatha Aiyar’s, The Law Lexicon (2nd edition; Reprint 2007) at page 1557, ‘public interest’ ‘means those interests which concern the public at large’. Banks and financial institutions in India heavily finance various industries on a routinely basis. However, it is a fact that large sums of such amounts are sometimes not recovered. In some cases, loans availed of are not repaid despite the fact that the industrialist(s) may actually be in a financial position to pay. Where financial assistance is given to industries by banks, in the absence of financial liquidity, it would result in a blockade of large funds creating circumstances that would retard socio-economic growth of the nation.

At this stage the Commission would like to quote Thomas J. of the High Court of New Zealand 1995, ‘The primary foundation for insisting upon open-ness in government rests upon the sovereignty of the people. Under a democracy, parliament is ‘supreme’, in the sense that term is used in the phrase ‘parliamentary supremacy’, but the people remain sovereign. They enjoy the ultimate power which their sovereignty confers. But the people cannot undertake the machinery of government. That task is delegated to their elected representatives……the government can be perceived as the agent or fiduciary of the people, performing the task and exercising the powers of government which have been devolved to it in trust for the people.

I wish the Government and its instrumentalities would remember that all information held by them is owned by citizens, who are sovereign. Further, it is often seen that banks and financial institutions continue to provide loans to industrialists despite their default in repayment of an earlier loan. The Supreme Court of India in U.P. Financial Corporation v. Gem Cap India Pvt. Ltd., AIR 1993 SC 1435 has noted that “Promoting industrialisation at the cost of public funds does not serve the public interest; it merely amounts to transferring public money to private account”. Such practices have led citizens to believe that defaulters can get away and play fraud on public funds. There is no doubt that information regarding top industrialists who have defaulted in repayment of loans must be brought to the citizens’ knowledge; there is certainly a larger public interest that would be served on disclosure of the same. In fact, information about industrialists who are loan defaulters of the country may put pressure on such persons to pay their dues. This would have the impact of alerting citizens about those who are defaulting in payments and could also have some impact in shaming them. RBI had by its Circular DBOD No. BC/CIS/47/20.16.002/94, dated 23rd April 1994 directed all banks to send a report on their defaulters, which it would share with all banks and financial institutions, with the following objectives:

1. To alert banks and financial institutions (FIs) and to put them on guard against borrowers who have defaulted in their dues to lending institutions.

2. To make public the names of the borrowers who have defaulted and against whom suits have been filed by banks/FIs.

Many Revenue Departments publish lists of de-faulters and All India Bank Employees Association has also published list of bank defaulters. It would be relevant to rely on the observations of the Supreme Court of India in its landmark decision in Mardia Chemicals Ltd. v. Union of India, (decided on 8-4-2004). The Supreme Court of India was considering the validity of the SARFAESI Act and recovery of ‘non-performing assets’ by banks and financial institutions in India. While discussing whether a private contract between the borrower and the financing institution/bank can be interfered with, the Court observed:

“…. it may be observed that though the transaction may have a character of a private contract yet the question of great importance behind such transactions as a whole having far-reaching effect on the economy of the country cannot be ignored, purely restricting it to individual transactions more particularly when financing is through banks and financial institutions utilising the money of the people in general, namely, the depositors in the banks and public money at the disposal of the financial institutions. Therefore, wherever public interest to such a large extent is involved and it may become necessary to achieve an object which serves the public purposes, individual rights may have to give way. Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact in the socio-economic drive of the country.” (Emphasis added)

There are times when experts make mistakes, other times when corruption influences decisions. It is dangerous to put complete faith in the judgment of a few wise people to alert everyone. Democracy requires reducing inequality of opportunity. Asymmetry of information deprives the citizens of an opportunity to take proper decisions. The Commission is aware that information on defaulters is being shared by Reserve Bank with an organisation called CIBIL. In such a situation, it is difficult to understand the reluctance to share this information with citizens using RTI. RBI’s Circular of 1994, — mentioned above, — infact appears to promise to share this information suo moto with the public.

In view of the arguments given above, the Commission is of the considered view that the details of defaulters of public sector banks should be revealed since it would be in larger public interest. Revealing these would serve the object of reining in such defaulters, warning citizens about those who they should stay away from in terms of investments and perhaps shaming such persons/entities. This could lead to safeguarding the economic and moral interests of the nation. The Commission is convinced that the benefits accruing to the economic and moral fibre of the country, far outweigh any damage to the fiduciary relationship of bankers and their customers if the details of the top defaulters are disclosed.

Hence, in view of section 8(2) of the RTI Act, the Commission rules that information on query 2(b) must be provided to the appellant, since there is a larger public interest in disclosure.

The appeal is allowed.
“The PIO shall provide the complete information as per records on queries 2(b) and 2(c) to the appellant before 10th December 2011.

The Commission also directs the Governor, RBI to display this information on its website, in fulfil-ment of its obligations u/s.4(1)(b)(xvii) of the RTI Act.

This direction is being given under the Commission’s powers u/s.19(8)(a)(iii). This should be done before 31st December, 2011 and updated each year”.

[Mr. P. P. Kapoor v. PIO & Chief General Manager, Reserve Bank of India, Mumbai, [Decision No. CIC/SM/A/2011/001376/SG/15684, Appeal No. CIC/ SM/A/2011/001376/SG]

[Note: Full decision is posted on website of BCAS & PCGT]

As reported in The Times of India on 10-12 -2011, this judgment has been stayed by the Delhi High Court.

The Delhi High Court on 9-12-2011 stayed the direction of the Central Information Commission (CIC) asking the Reserve Bank of India to provide details of industrialists who have defaulted in re-payment of loan taken from nationalised banks.

A Bench of Justice Vipin Sanghi, in its interim ex parte order, asked the information seeker to respond to petition filed by RBI challenging the CIC order.

The Court listed the next hearing on 27th February, 2012, on RBI’s petition which said the CIC’s directives were in violation of the Right to Information Act.

Counsel T. R. Andhiyaarjuna, appearing for the RBI, contended that the CIC’s order would have a far-reaching impact as this kind of information is confidential and the Information Commissioner has dealt with the matter in a wrong way, without considering all the relevant provisions under the RBI Act.

He also said the order of the CIC was beyond its jurisdiction under the transparency law, as RBI is exempted from providing such info u/s.8(1)(a).

Sections 18 and 19 of the RTI Act:

On 12th December, 2011, the Supreme Court of India has delivered judgment, very powerful and detailed, running into 30 pages dealing with the provisions of sections 18 and 19 of the RTI Act.

As decision reported is of many pages, the same is posted on BCAS and PCGT websites. Those interested may view it there. Only one para of it is reproduced hereunder:

“We are of the view that sections 18 and 19 of the Act serve two different purposes and lay down two different procedures and they provide two different remedies. One cannot be a substitute for the other.”

[Chief Information Comm. and Another v. State of Manipur and Another under civil Appeal Nos. 10787-10788 of 2011 (arising out of S.L.P. (c) Nos. 32768-32769/2010)]

Note: Please see part B for DNA’s report on above decision.

Nirav Shah

Journal

Brieficles

Resources

About

Reach Us