RTI / NV25

 

29.04.2010

 

Dear friends of RTI:

 

Greetings from BCAS Foundation.

 

·           Enclosed is Article for April 2010, 25th since I started in April 2008.

 

·           You may refer NV24 wherein I referred to the book I was writing and compiling. Same is published and released by Dr. Suresh Joshi on April 7, 2010. This is what Hindustan Times reported next day for that function under the heading: “Want to know more about RTI Act? Get a free copy”:

 

A new handbook will be available for citizens who wish to know the basics about the Right to Information (RTI) Act.On Wednesday, RTI activist Narayan Varma released the second edition of this book, Right to Information – A Route to Good Governance”, after receiving overwhelming demand for the first edition, which was published in 2007.

 The updated book, published jointly by the Bombay Chartered Accountants Society and the Public Concern for Governance Trust (PCGT), will be available free at the offices of these two groups.

“The right to information is not only a fundamental right, but also a duty for each citizen. This book contains the basics about RTI, summaries of various court judgments, information about commissioners, news reports and more,” said Varma, a PCGT trustee.

 

Compared to the older edition, this book answers more frequently-asked questions by the public, and contains an added chapter listing all the websites, helplines and clinics that provide information on the Act.

“In the four and a half years since it was passed, the RTI Act has received more public attention and acceptance than any other Act,” said Suresh Joshi, Maharashtra chief information commissioner, who formally released the book. “I believe it was this Act which prompted the government to pass the Right to Education Act.”

Joshi added that Maharashtra, which received 18 lakh applications till the end of 2009, has been the most active state in its RTI related work. Sixty percent of the applications come from urban areas, with Mumbai accounting for more than 57,000.

As noted in the last communication, if you desire to have this book, you may email to one of the three e-mail addresses given thereat.

 

With regards,

 

 

Narayan Varma

 

Encl: Article March, 2010

Nv/mn

 

 

 

The Right to Information

For BCAJ April, 2010

     Narayan Varma

 

Part A:

Order of the court

S. 8(1)(e) of the RTI Act :

8 writ petitions, including one — The Institute of Chartered Accountants of India v. CIC [writ petition (civil) No. 3607 of 2007], are decided by the High Court of Delhi on 30-11-2009.

As the judgment is of interest to members of our profession, from the order which runs into 48 pages, I reproduce verbatim the relevant four paras.

91. Respondent no. 2 herein — Mr. Y. N. Thakkar had made a complaint alleging professional misconduct against a member of the Institute of Chartered Accountants of India. The complaint was examined by the Central Council in

the 244th meeting held in July 2004 and was directed to be filed as the Council was prima facie of the opinion that the member concerned was not guilty of any professional or other misconduct. The Council did not inform or give

any reasons for reaching the prima facie conclusion. In fact it is stated in the writ petition filed by the Institute of Chartered Accountants of India that the Council was not required to pass a speaking order while forming a prima

facie opinion.

92. On 7th January, 2006 respondent no.2 filed an (RTI) application seeking details of reasons recorded by the Council while disposing of the complaint. The information was not furnished and was denied by the PIO and the first Appellate Authority on the ground that the opinion expressed by the members of the Council was confidential.

93. By the impugned order dated 31st January, 2007 the CIC has directed furnishing of information without disclosing the identity of the individual members.

94. In the writ petition filed, the Institute of Chartered Accountants of India has projected that respondent no. 2 wants, and as per the impugned order, the CIC has directed furnishing of deliberations and comments made by members of the Council while considering the complaint, reply and the rejoinder. Respondent no. 2 has not asked for copy of deliberation or the discussion and comments of the members of the Council. He has asked for reasons recorded by the Council while disposing of his complaint. During the course of discussion, members of the Council can express different views. Confidentiality has to be maintained in respect of these deliberations and furnishing of individual statements and comments may not be required in view of S. 8(1) (e) and (j) of the RTI Act. However, I need not decide this question in the present writ petition as the respondent no. 2 has not asked for copy of the deliberation and comments. His application is for furnishing of reasons recorded by the Council while disposing of the complaint. There is difference between the reasons recorded by the Council while disposing of the complaint, and comments and the deliberations made by individual members when the complaint was examined and considered. Reasons recorded for rejecting the complaint should be disclosed and there is no ground or justification given in the writ petition why the same should not be disclosed. In fact, as per the writ petition it is stated that the Council did not pass a speaking order rejecting the complaint and it is the stand of the petitioner that no speaking order is required to be passed while forming a prima facie opinion. It is open to the petitioner to inform respondent no. 2 that no specific reasons have been recorded by the Council. The consequence and effect of not recording of reasons is not subject matter of the present writ petition and is not required to be examined here. Writ petition is accordingly disposed of with the observations made above.

From the above, it will be observed that it is important to seek information fully and properly. If the applicant had asked for the comments and deliberations made at the Council meeting of ICAI, he would have got it, but he had asked only the reasons recorded by the Council. To make the reporting complete, I also reproduce the Commission’s decision dated 31-1-2007 as referred to in para 93 of the above order :

Commissions’ decision :

The CPIO has already furnished partial information. He has, however, withheld the deliberations of the Council on the ground that the opinion expressed by the Council members are confidential. In the spirit of the RTI Act, which aims at creating conditions for taking informed decisions, the views expressed by the public servants should be put in public domain to prompt transparency in the decision-making process. The CPIO is therefore directed to disclose the information sought, after due application of S. 10(1) of the Act, within 15 working days from the date of issue of this

decision. The identity of an individual member, who may have expressed his opinion on any issue of complaint should, however, be withheld, lest the disclosure of identity should endanger his life and liberty.

Part B:

The RTI Act

We have many RTI success stories happening at clinics operating at BCAS Foundation and other places. But, we never report them. However, when ‘The Miracle’ happened for Arvind Dalal, past President of BCAS and ICAI, I thought it would be worth reporting. Hence, I requested him to pen a few words and here they are :

The miracle that is RTI

by Arvind Dalal

I am induced to write this article on RTI of my personal experience prompted by Narayan Varma, so that it may inspire others to resort to the unfailing remedy of RTI.

I have a small cottage in Lonavala which I acquired in March 1993 and launched the document of sale deed for registration with the seller and the advocate of both parties. I was informed by the seller and the advocate that original sale deed duly registered with the Registrar at Pune will be returned to me after ‘reasonable time’ duly stamped on each page for registration.

Knowing as I do what is ‘reasonable time’ for income tax proceedings, I did not bother about the registration for ten years even though that is an unreasonable period for registration of a document. But I started pursuing the matter since 2003 and for about four years I was given a stone-walling reply from the Registrar’s Office that the document is not received after registration, but it will take some more time and I will receive the same as soon as reasonable period is over.

Finally in 2007 I was told after several visits to the Registrar’s Office in Lonavala, that the document was received but for want of space in Lonavala office, it is sent to the Registrar’s office at Vadgaon-Maval about 20 miles away from Lonavala. I visited Vadgaon from time to time with my wife and with the advocate. Every time we were informed that the document will have to be searched out from a heap of documents and I must wait till evening to give them enough time to look for the same. My advocate also inquired several times at Vadgaon, but every time the reply was

the same that it was not traceable.

I talked to Narayan Varma who suggested to make an application under the RTI Act and he helped me to prepare the application including questions therein regarding how many documents were lodged for Registration in 1993, which were still pending in 2010 and how many were registered and returned to the applicants, what was the limit prescribed under the Act and more specifically when will my document, lodged in March 1993, be registered.

Within 15 days, I received a reply at my Mumbai address that my documents will be sent to me in due course but in the meanwhile, I could take inspection at Vadgaon by paying the necessary charges. I replied, thanking them for their letter sent after 17 years (Lord Ramachandraji’s vanvas was over in 14 years) and asking them to send original sale deed at the earliest. Lo and behold ! Within ten days, I get the original document in 2010 registered in 1993 !

The moral of the fairy tale is that one must invoke one’s rights as a citizen more frequently under the RTI Act, particularly when activist like Shri Narayanbhai is out to help us and citizens must exercise their rights under statute given by the government by taking a little extra trouble !

Part C:

Other News

·         Significant pronouncements by the Commission :

Some time ago, when Shailesh Gandhi, CIC was in BCAS office – Mumbai, addressing RTI activists and journalists, he distributed compilation of 8 important profound pronouncements by the Central Information Commission. Herewith 5 & 6 thereof :

(Continued from January 2010)

5. Sub judice :

The Appellate Authority had claimed exemption u/s.8(1)(e), but the PIO has given no reason to justify how S. 8(1)(e) can apply.

The CIC decision cited by the respondent states ‘The matter is sub judice. The Appellate Authority has correctly

advised that information in question could be obtained through the Court which is examining the matter.’ No reasoning has been offered as to which exemption clause of the RTI Act applies. The only exemption of S. 8(1) which might remotely apply and under which information can be denied is S. 8(1)(b) states, ‘information which has been expressly forbidden to be published by any Court of law or Tribunal or the disclosure of which may constitute contempt of Court;’

This clause does not cover sub judice matters, and unless an exemption is specifically mentioned, information cannot be denied. Disclosing information on matters which are sub judice does not constitute contempt of Court, unless there is a specific order forbidding its disclosure. I respectfully have to disagree with the earlier decision cited by the appellant since it is per incuriam.

This Commission rules that a matter being sub judice cannot be used as a reason for denying information under the Right to Information Act.

6. Privacy :

U/s.8(1)(j) information which has been exempted is defined as : “information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or State Public Information Officer or the Appellate Authority, as the case may be, is satisfied that the larger interest justifies the disclosure of such information :” To qualify for this exemption the information must satisfy the following criteria :

It must be personal information. Words in a law should normally be given the meanings given in common language. In common language we would ascribe the adjective ‘personal’ to an attribute which applies to an individual and not to an institution or a corporate. From this it flows that ‘personal’ cannot be related to institutions, organisations or corporates. [Hence we could state that S. 8(1)(j) cannot be applied when the information concerns institutions, organisations or corporates.]

The phrase ‘disclosure of which has no relationship to any public activity or interest’ means that the information must have some relationship to public activity. Various public authorities in performing their functions routinely ask for ‘personal’ information from citizens, and this is clearly a public activity. When a person applies for a job, or gives information about himself to a public authority as an employee, or asks for permission, licence or authorisation, all

these are public activities.

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

Certain human rights such as liberty, freedom of expression and right to life are universal and therefore would apply in all countries uniformly. However, the concept of ‘privacy’ is related to the society and different societies would look at these differently. India has not codified this right so far, hence in balancing the right to information of citizens and the individual’s right to privacy, the citizen’s right to information would be given greater weightage.

Therefore we can accept that disclosure of information which is routinely collected by public authority and routinely provided by individuals, would not be an invasion on the privacy of individual and there will only be a few exceptions to this rule which might 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.

·         From the Budget speech of Pranab Mukherjee, Minister of Finance on February 26, 2010 :

Inclusive development :

72. For the UPA Government, inclusive development is an act of faith. In the last five years, our Government has created entitlements backed by legal guarantees for an individual’s right to information and her/his right to work. This has been followed-up with the enactment of the right to education in 2009-10. As the next step, we are now ready with the draft of Food Security Bill which will be placed in the public domain very soon.

·         RTI is the new tool in divorce mudslinging :

An interesting report in MIDDAY of 11-3-2010 :

Case 1 :

Ritika Sharma and her father claimed in the police complaint that they had provided Rs.30 lakh in dowry (in jewellery, cash and kind) to Ritika’s husband Mohan Sharma. Facing the prospect of imprisonment, Mohan Sharma filed an RTI application, seeking the income-tax details of his father-in-law.

It was revealed that Ritika’s father had only declared nominal income. It then became apparent that the claims made by the father-daughter duo about the dowry payment were false. The matter is sub judice. (Names changed)

Case 2 :

A month ago, Visakha Malhotra filed an RTI application seeking details of her ex-husband’s income after she was denied rightful maintenance following her divorce. Her husband had claimed that he was a businessman. “Her petition was based on her right to live with dignity,” said a senior I-T official, on condition of anonymity. (Name changed)

According to income-tax officials, the trend of seeking RTI for dowry and maintenance cases began after a Delhi High Court judgment. In a 2007 case, Bhagat Singh was denied information regarding the earnings of his wife (with whom he had a discord), by the Income-tax Department, on the ground that the matter was being investigated. Singh, who was accusedby his wife Saroj Nimal of accepting a dowry of Rs.10 lakh from her, filed a request with the Income-tax

Department for investigating into his wife’s sources of income in view of the fact that she was a primary school teacher. In a landmark judgment, the Court directed the Income-tax Department to provide the information sought by Bhagat Singh.

The trend seems to be really catching on now. “There are around 30 ranges in the National Capital Region and each of these ranges processes or receives around 3 to 4 RTI applications seeking Income-tax details and most of them are related to either dowry harassment or maintenance cases.”

·         Tax refunds :

At our RTI clinics, we assist many to make RTI application for the pending income-tax refunds. They invariably get the refund. The Times of India on March 15 reported on this subject and said : Life just got better for millions who have ran from pillar to post for years to secure their tax refunds from the Income-tax (I-T) Department. In the landmark ruling, the Central Information Commissioner has passed an order which says “information on refunds is covered under the Right to Information (RTI) Act.”

M. L. Sharma, the Central Information Commissioner, while passing the order, said :

“To deny the appellant information sought by him under clause (e) or clause (j) of S. 8(1) is nothing but misappreciation of law.”

“The information sought by the appellant is covered u/s.2(f) of the RTI Act and he has a right to seek information u/s.2(j) thereof. It is clarified that the appellant has not sought any information which the public authority is holding in fiduciary capacity.”

While directing the Income-tax Department to disclose information for the inordinate delay, he also ordered the issue of refunds within three months.

The CIC also rapped the Department for failing to appear in a hearing arranged by the Commission where the appellant was present.

·         Cabinet’s advice to the President of India :

Pushing the boundaries in its interpretation of the Right to Information Act (RTI), the Central Information Commission (CIC) said advice given by the Union Cabinet to the President is liable for disclosure under the information law.

Referring to SC ruling on Article 74(2) on the question of constitutional privilege, Chief Information Commissioner

Wajahat Habibullah ruled that though the Constitution said the Cabinet’s advice to the President could not be ‘inquired into’, it did not mean that such advice could not be ‘disclosed’. “It does not mean the nature of this advice can’t be disclosed,” he said while directing the President’s Secretariat to allow checking of files pertaining to communication between former President Shanker Dayal Sharma and ex-PM Narasimha Rao on the issue of extending SC status to Dalits who had converted to Christianity.

·         Monitoring Govt. projects through the use of RTI :

Although the State Chief Information Commissioner has asked alert citizens to monitor Government projects through the use of RTI, not many are satisfied with the way their efforts have found support.

The experience of Bhaskar Prabhu, an RTI activist and a member of Mahiti Adhikar Manch, an NGO that monitors Government spending, has not been good enough. Prabhu filed an application to monitor the money spent on grass beds at tree bases on Dr. Ambedkar Road in F/South ward, Mumbai. He also sought information on the expenses on iron guards around the trees. The details sought were for work orders worth Rs.7.26 lakhs that were passed in October

2008 and January 2009. The work was to be completed by March 2009.

But the Public Information Officer (PIO) did not respond to his April 2009 application in time. After the hearing at

the First Appellate Authority (FAA) in May 2009, the application got misleading and incomplete information.

“They did give information of grass beds, but not the locations of the work. It was impossible to see if the work was completed,” said Prabhu.

There was no information of the 164 iron grill tree guards for which money was already paid. The money set aside for the guards is 25% of entire amount. When he complained to the ward officer and deputy superintendent of gardens, it got known that around 20 guards were put and some petty penalty was imposed on the contractor. There is still no information to conduct the audit, a frustrated Prabhu said.

When contacted, H. Kale, Assistant Commissioner, F/South ward, said, “The file is not in my hand anymore. It has been given to some other officers. We have slapped a fine of Rs.50,000 on the contractor.”

·         Skywalks in Mumbai :

Even as Mumbaikars question the need for so many skywalks in the city, reply given to a query under the Right to Information Act is an eye-opener. Each of the 67 skywalks in Mumbai have been proposed by an elected representative — an MP, MLA or a corporator. In fact, there are cases where work on skywalk stopped because the local representatives initially supported it and then changed their stance, following opposition from sane people. Nearly all the requests have been made orally by elected representatives, stated the RTI replies to the Grant Road citizen Arvind Dagha’s queries.

Construction of 67 skywalks at a cost of Rs.1.400 crore has been taken up. Initially, around 50 skywalks were to be constructed at the cost of Rs.600 crore. That number was later increased to 67. A. K. Pehal, in charge of the skywalk project, said they were being constructed only after carrying out a study.

·         Stop attacks on RTI activists :

In his Budget speech, Union Finance Minister Pranab Mukherjee said the weaknesses in government systems, structures and institutions posed a challenge to policy planners. He said our public delivery mechanisms prevented the country from realising its true potential. The analysis is spot on. So, how do we fix governance ? Transparency and accountability hold the key to good governance. Institutional reforms are necessary to achieve this. The Government plans to set up a financial sector legislative reforms commission and an independent evaluation office to assess public programmes. These are timely. Many enabling legislations have been passed in recent years to make administrators responsible to citizens. But laws alone aren’t enough. Mindsets also must change if the legal safeguards are to become effective.

The experience of the Right to Information (RTI) Act is instructive. The RTI Act has been a radical step towards making administration transparent and accountable. Civil society groups have used the RTI Act to expose corruption in public administration and services. But not all sections of society have reacted favourably to the Act. Often, bureaucrats refuse to part with information demanded under the RTI. A worse trend is to attack RTI activists physically. The latest case is from Maharashtra where a Thane-based RTI activist was shot at. The Government needs to curb such crimes. The message must go out that attacks on RTI activists will not be tolerated. Public delivery mechanisms can improve only if the State and civil society work together to plug loopholes in these systems. (Editorial in The Times of India, dated 4-3-2010)

·         Sonia forces PM to put RTI amendments on hold :

Plans to amend the Right to Information (RTI) Act have been put on ice, with Congress bosses taking up with the Government the complaint of the activists that the proposed changes would lead to dilution of the information law. Senior sources said the amendments will have to wait till the time the Government dispels fears of rights activists.

Congress Chief Sonia Gandhi wrote to PM Manmohan Singh some time ago, drawing his attention to the fear of activists. The PM and virtually the entire Government feel the amendments are necessary for smooth functioning of the Government and to keep out frivolous complaints, but Singh has agreed to hold consultations with stakeholders (read activists).

According to some reports, Singh is also in favour of excluding the office of the CJI from the RTI Act ambit. The amendments proposed by the PM would keep the office of the CJI out of the purview of the Act. However, Sonia Gandhi has opposed any such amendments.