For BCAJ February, 2008
Narayan Varma
CIC’s decisions :
● Information on Service Tax on CAs :
From various Orders of the CIC, some of them reported
earlier in this feature, it appears that the Institute of Chartered Accountants
of India (ICAI) very often denies information applied for under the Right to
Information Act. The matter then oes to the
CIC in appeal. Here is one more case, the appeal was
filed by P. S. Bhansali, a Chartered Accountant from
“The short-point for disposal in this case is whether
the representations made by the ICAI to the Union Finance Minister and other
authorities regarding withdrawal of Service Tax notification No. 2/2006/Service
Tax, dated 1-3-2006 and restoration of Notification No. 59/98/Service Tax,
dated 16-10-1998, relating to granting of exemption to practising
Chartered Accountants on services rendered other than audition (sic), Accounting
& Certification, be disclosed as requested in the RTI application of the
appellant dated 12-9-2007. The respondents have taken the plea that this
information is covered by the exemption S. 8(1)(e) of
the RTI Act.
On examination, I do not find the exemptionclaim
of the respondents valid. The information requested is neither secret nor
confidential. It is also known to exist in the hands of the respondents as it
originated from there. There is no reason why such information cannot be disclosed.
The reasons advanced by the respondents are specious.
It is, therefore, directed that the information requested may be disclosed to
the appellant within 3 weeks from the date of the receipt of this order.”
(Order in case No.
CIC/AT/A/2007/00835 of
This would be interesting information once ICAI furnishes
the same to Shri Bhansali,
as the entire subject of the Service Tax on CAs has
been a sour issue with all of us.
● S. 11 and S. 8(1)(d)
of the RTI Act :
The case is of Shri
Anil Kumar Sharma v. Office of the Registrar of Companies, M.P. & C.G.
(Ministry of Company Affairs)
The appellant had sought certain information about a
company of which he was a shareholder. He had alleged that the company, as
identified in his application, has been conducting its business activities in
an illegal manner and has thus earned profit through corrupt practices. In this
context, he had sought inspection of the relevant documents, which was allowed.
But, the identified documents had not been furnished to him.
In response to his application for information, the CPIO
sought concurrence of the company (the third party) u/s.11 of the Act, which
did not permit the disclosure of information asked for by the appellant.
Not being satisfied, in his appeal before the CIC,
the appellant pleaded that information sought should be furnished.
In its decision, the CIC stated :
“A major concern of the RTI Act is to contain corruption.
The disclosure of information relating to corrupt practices of public/private
companies is, therefore, largely in public interest. The allegations made by
the appellant about the illegal activities of the company in question should
have been investigated by the competent body, mainly the respondent. It does
not seem to have been done. The appellant is, therefore, advised to approach
the competent authority to investigate the allegations made by him, so as to find
the facts in the matter or to establish that allegations, as above, are
motivated for promoting personal interest of the appellant.”
“As the matter pertains to alleged corruption, disclosure
of information is largely in public interest. Denial of information u/s.8(1)(d) of the Act, after having shown the entire records
to the appellant is, therefore, untenable.”
Based on the above, the CIC directed the CPIO to
acquire the information asked for u/s.2(f) of the Act and furnish the same to
the appellant within 15 working days from the date of issue of its’ decision.
(Decision No. 1739/IC(A)/2007
F. No. CIC/MA/A/2007/00783 of
● S. 8(1)(h) and S.
8(1)(j) of the RTI Act :
Request for information was made by Shri Y.S.N. Rajput of Vadodara to the CIT,
The queries of the appellant were focussed
on the investigation conducted on Sweatamber Steel
Ltd. by the respondents. The reason for turning down the information requested
was principally on holding that the information pertained to a third party and
being personal to that third party, it was barred by the exemption u/s.8(1)(j)
of the RTI Act and on the finding that no public interest could be invoked to
override the exemption.
As the CIT(CPIO) and CCIT(AA) had not stated whether
the investigation was still continuing and if so, at what stage it was then,
the CIC considered that it is necessary to first examine the implication of the
exemption u/s.8(1)(h) of the RTI Act. It decided that “In case it is noted that
the investigation proceedings had been completed and, therefore, exemption S.
8(1)(h) was not attracted, it would be necessary to
examine the entire request by invoking the provisions of S. 11(1) of the Act.”
The CIC also noted that it was not clear from the Orders
of the CPIO and the AA whether there was application of mind with regard to the
above two alternatives. In view of this, it was necessary that the matter be
examined once again by the Appellate
Authority for a proper conclusion.
Accordingly, it remitted back the appeal to the AA, Mr.
R. B. Sinha (CCIT) for de-novo enquiry and disposal
within 4 weeks from the date of the receipt of the Order.
(F.No. CIC/AT/A/2007/00553,
dated
● Appointment of Information Commission for
An interesting complaint came before the CIC from Ms.
Shruti Singh Chauhan
against the Chief Minister of
The CIC decided to admit Ms. Chauhan’s
complaint u/s.18(1)(c) of the Act and directed the PIO, at the Office of the
Chief Minister of Delhi to respond to the request for information from the
complainant Ms. Chauhan within 10 working days from the date of receipt of this decision. However,
the CIC also clarified that because GNCT Delhi is a Union Territory falling
within the jurisdiction of the Central Information Commission, the GNCT is not competent
to constitute an Information Commission either u/s.12(1) or u/s.15(1) of the
RTI Act.
The CIC also ruled that in spite of the above facts, the
PIO is not exonerated from his obligation to respond to an RTI application u/s.6(1) of the RTI Act. He was therefore directed to show
cause as to why a penalty of Rs.250 per day from the date when the information
fell due i.e.,
(Complaint No.
CIC/WB/C/2007/00228, dated
The RTI Act
S. 25 of the RTI Act provides that the Central Information Commission (CIC) and the State Information Commissions shall prepare an annual report on the implementation of the provisions of the RTI Act during the year.
Annual Report 2005-06 is now published by the Central
Information Commission.
It consists of 140 pages with 6 chapters, 6 Tables
and 5 charts and annexures of 70 pages. In this
feature, the same is being summarised and reported in
3 parts. Chapter 1 is titled “The right to information from people’s movement
to legislation”. It would be interesting to note that
➠
Legal pronouncements
➠
Civil society/Peoples’ movement
➠
Government action
The Supreme Court as early as in 1975 held that the RTI
is a part of the fundamental right to freedom of speech and expression under
Article 19(1) of the Constitution, since that right cannot be properly exercised
if the people did not have the right to information.
Civil society’s and people’s movement culminated when
in 1996, a nationwide network of senior journalists, lawyers, distinguished
bureaucrats, academics and Non-Government Organisation
(NGO) activists was formed that vigorously
advocated the removal of the
Official Secrets Act, 1923 and the legislation of a strong Right to Information
Act at the Centre.
That brought increased awareness among public functionaries
that disclosure of information should be the norm and not the exception.
The next stage of development was drafting a model information access legislation for consideration by
the Government. After such a draft was prepared in 1996 and revised in 1997,
finally ‘Freedom of Information’ (FOI) Bill was prepared in 2000 and FOI Act
was passed in 2002 and received the presidential assent in 2003. However, the
same was never notified and as a result was never enforced. Finally, fresh
Bill, the RTI Bill was tabled in the Parliament in 2004 and after a few amendments, the Parliament enacted the Right to Information
Act, 2005. The Act came into force on
It may be noted that many States in
Chapter 2 deals with Key Roles and Responsibilities of
the Central Information Commission. On
Other News
● RTI exposes misuse of public funds :
The Times of India editorial has reported the following :
“It seems the babus can’t
keep their hands even off funds meant for victims of war and natural calamities.
Documents obtained by a Ludhianabased NGO under the
Right to Information Act reveal that bureaucrats heading local branches of the
Indian Red Cross Society diverted money collected for Kargil
war relief and rehabilitation of tsunami and cyclone victims to pay hotel bills
among other things. Such
misuse of funds by senior public officials betrays the trust people have in
charities. However, there is a lesson in this episode that holds hope for the
future.”
“The expose was the result of a judicious application
of the RTI Act by an NGO. As we have said in these columns, the RTI Act is an effective
tool that is at the disposal of the civil society to bring accountability and
transparency in the conduct of public affairs. If backed by public action, the
RTI Act could help the civil society to plug the leaks in the system.”
● Ex-minister also runs against a wall for information :
Leader of the opposition in Rajya
Sabha, Jaswant Singh sought
information on privy purses that princely states in
He made RTI application on June 4. He got the reply
around 40 days after saying that since the records were more than 35-years old
they were transferred from the Ministry of Home Affairs (MHA) to the National
Archives of India.
Singh complained to the CIC. When even the CIC did
not respond, he asked on September, 28 “Sir, are we now to presume that there
is no time limit to the retrieval of these files ? Are
then we to wait endlessly ? The impression created by
the reply from MHA is that the petitioner is at fault, probably one crucial
reason why the Government brought the RTI Act in the first place.”
CIC Wajahat Habibullah heard the case in December 2007 and then
directed the MHA to show him the three available files immediately, make renewed
efforts to trace the remaining files and report to Singh as well as the CIC
within the next
20 days.
It may be noted that S. 4(a) mandates every public authority to “maintain all its records duly catalogued and indexed in a manner and form that facilitates the right to information under this Act”.
However, very few public authorities have complied on
this mandate.
● Appointment of PIO in
Chief Minister Vilasrao Deshmukh has assured social activist Anna Hazare that show-cause notices would be slapped on all
department heads who have failed to appoint an information officer till now. It
may be noted that every public authority u/s.5 of the RTI Act was required to
designate PIOs in all administrative units or offices
under it by
● The Chief Minister’s Relief Fund :
Earlier in this feature, we had reported that PMO had
held in reply to RTI query that Prime Minister’s Relief Fund is not covered
under the RTI. Now Maharashtra Chief Minister’s
Relief Fund, managed by 12 individuals comprising six ministers and six bureaucrats,
is not a public authority, as per the reply received to the RTI query. After
refusing to give details of the fund’s disbursements for over two years, the
State’s Advocate General Ravi Kadam
argued before a Full Bench of the
Information Commission that the fund was not a public
authority, and hence escaped the RTI Act.
● RTI — A part of changing Mumbai :
While talking about the changing topography of Mumbai, the buzz is about the skyline — how highrise towers are replacing chawls, mills are becoming malls and single-screens are becoming multiplex.
Another feature of a changing Mumbai may not be immediately
apparent, but it is slowly weaving itself into the city’s fabric. RTI centres are mushrooming at various places. RTI helps
citizens get answers and investigate complaints on civic issues, putting the
authorities on the mat so to speak.
(An interesting report in MID-DAY)
● Sagar Pandit :
Sagar Pandit,
a student of humanities at St. Xavier’s College [Son of our (P.P.) Sanjeev Pandit] is the finalist
from