The Right to Information
For BCAJ July, 2008
Narayan Varma
Part A : CIC’s decisions
Guidelines
on scrutiny of income-tax returns by CBDT :
A very
interesting and important issue regarding scrutiny policy for non-corporate assessees and disclosure of instructions, directions and
clarifications issued by the CBDT on the scrutiny policy came up before CIC.
The same is decided by a Bench of 3 Commissioners.
Shri Kamal
Anand of People for Transparency of Sangrur was the appellant. He had sought for a number of
information, some were furnished by PIO and AA, and some were denied by holding
that the same are exempt u/s.8(1)(a) of the RTI Act.
Hence, the matter came up before CIC. The issue for determination before CIC was :
Whether supply of instructions, directions, clarifications
relating to scrutiny policy for non-corporate sector could be held to be
prejudicial to economic interest of the State and hence could be denied
u/s.8(1)(a) of the Right to Information Act, particularly when broad parameters
of the scrutiny guidelines have already been provided to the appellant ?
It may be
noted that initially this appeal was heard by a Single Member of the Commission
and he had directed the Department of Revenue to have the matter considered by
the highest level in the public authority and come up to the Commission with
the Department’s viewpoints.
The Department
made detailed submissions
after having been duly considered by the Union Finance
Minister and as approved by him. In the submissions, the Department stated that
it is of the view that disclosure of scrutiny guidelines adversely affects the
economic interest of the State and facilitates committing the offence of tax
evasion. Therefore, these should not be disclosed to the public.
Three Members’ Bench after considering the submissions
received, held as under :
It is
certainly within the domain of the concerned public authority to decide and
determine as to whether disclosure would adversely affect the economic interest
of the State or not. The Commission can only look into as to whether the
determination by the Department about the probable effect of a particular
policy disclosure is based on objective criteria or not, or as to whether the
Department has arrived at a particular conclusion in a reasoned, or in a
mechanical or arbitrary manner. Here is a case where a public authority at the
highest level has analysed the whole issue at our
behest and has given its considered opinion to this Commission about the
possible effect of the disclosure on economic interest of the State. We must
conclude that the implications of disclosure have been put to the closest
scrutiny.
The Commission
cannot, therefore, enter into the adequacy or otherwise of the criteria taken
into account by the concerned public authority. It cannot surpass an objective
consideration and place its own subjective consideration thereon. When a denial
is covered by an exemption clause u/s.8 of the Right to Information Act, so
long as such application of exemption is based on objective criteria and is not
arrived at in a mechanical or arbitrary manner, this Commission does not intend
to interfere in such issues.
Based on the above, the Commission held that denial of
information is justified u/s.8(1)(a) of the RTI Act.
[No. CIC/AT/A/2007/00617 : Shri Kamal Anand v. Central Board of
Direct Taxes,
For the information of the readers, S. 8(1)(a)
reads as under :
8. Exemption
from disclosure of information —
(1) Notwithstanding
anything contained in this Act, there shall be no obligation to give any
citizen, —
(a) information, disclosure of which would
prejudicially affect the sovereignty and integrity of India, the security,
strategic, scientific or economic interests of the State, relation with foreign
State or lead to incitement of an offence.
RTI Act v. S. 138 of the Income-tax Act :
Three issues for determination before the Bench of 3 Members
of the Central Information Commission were :
1. Whether certain information can be provided to the
appellant under the RTI Act when S. 138 of the Income-tax Act prohibits
disclosure of such information ?
2. Whether
in such a situation the overriding provision as contained in S. 22 of the RTI
Act comes into play ?
3. Whether S. 8(1)(j) of the RTI Act is applicable to the case of the
appellant ?
The application was made by Shri G.
A. Rawal of Ahmedabad, who
is an informant to get information on ‘Tax payable as per the decision of
Settlement Commission in the case of Winprolene
Plastics and tax paid by the said company.’ Information sought was denied by
holding that the same is prohibited u/s.8(1)(j) of the
RTI Act.
Decision and reasons :
·
Both the Right to Information
Act, 2005 and S. 138 of the Income-tax Act, 1961 deal with disclosure of
information. While the Right to Information Act is a general law concerning the
disclosure of information by public authorities, S. 138 of the Income-tax Act
is a special legislation dealing with disclosure of information concerning assessees. This Commission in Rakesh
Kumar Gupta v. ITAT, of
·
Crucial two terms u/s.8(1)(j) are ‘personal information’ and ‘invasion of the
privacy’. In the decision, the Commission has analysed
the ambit and scope of both the terms.
·
The interpretation of S. 8(1)(j) has been the subject of some dispute. The Section deals
with excluding from the purview of the RTI Act (a) information of a personal
nature which has no relationship to a public activity or interest, and (b)
whose disclosure would lead to unwarranted invasion of privacy.
·
Insofar as (b) is concerned,
there is very little doubt that there could be a set of information which may
be said to belong to the exclusive private domain and hence not be liable to be
disclosed. This variety of information can also be included as ‘sensitive and
personal’ information as in the U.K. Data Protection Act, 1998. Broadly
speaking, these may include religious and ideological ideas, personal
preferences, tastes, political beliefs, physical and mental health, family
details and so on.
·
But when the matter is about
personal information unrelated to public activity, laying down absolute
normative standards as touchstones will be difficult. This is also so because
the personal domain of an individual or a group of individuals is never
absolute and can be widely divergent given the circumstances. It is not
possible to define ‘personal information’ as a category, which could be
positively delineated; nevertheless it should be possible to define this
category of information negatively by describing all information relating to or
originating in a person as ‘personal’ when such information has no public
interface. That is to say, in case the information relates to a person which in
ordinary circumstances would never be disclosed to anyone else; such
information may acquire a public face due to circumstances specific to that
information and thereby cease to be personal. It is safer that what is personal
information should be determined by testing such information against the
touchstones of public purpose. All information which is unrelated to a public
activity or interest and if that information be related to or originated in
person, such information should qualify to be personal information u/s.8(1)(j).
·
Insofar as the assessment
details are concerned, they are definitely personal information concerning some
individual or legal entity. The assessment details if disclosed may result in
an undue invasion to the privacy of an individual. Disclosure of such details,
therefore, cannot be permitted unless there is an overriding public interest
justifying disclosure. But in the instant case, what has been asked for by the
appellant in his RTI application is as follows :
“Tax payable
as per the decision of the Settlement Commission in the case of Winprolene Plastics and tax paid by said company.”
·
Based on above, the Commission
directed the CPIO to provide the information within a period of two weeks from
the date of the order.
[No. CIC/AT/A/2007/00490,
dated 5-3-2008 in the matter of Shri G. R. Rawal v. Director General of Income Tax (investigation),
Ahmedabad]
Note : S. 24 of the RTI Act
provides that the Act shall not apply to certain organisations.
The Second Schedule lists such organisations. Ss.(2) of S. 24 empowers the Central Government to amend the
Schedule by including therein any further organisation.
It is understood that on
Part B : The RTI Act
Chapter 6 of
the Annual Report 2005-06 as published by the Central Information Commission
(CIC) deals with suggestions to reform by the CIC.
·
All stakeholders — citizens,
civil society organisations, public authorities and
the Information Commissions — have felt that the implementation of the RTI Act
has been a mixed experience.
·
CIC is of the view that though
S. 4, requiring the Government to publish all information except that which the
law permits to be kept a secret, is the key to the RTI Act, unfortunately,
public authorities neglected it the most in 2005-06. Public authorities find
themselves too overwhelmed by information seekers to focus their energies on
furnishing or even expanding the scope of suo
moto disclosures of information. For this
exercise to be fruitful, there has to be an
attitudinal change.
Based on the above, CIC suggests that Citizen’s Charters
adopted by most public authorities should be made an integral part of S.
4(1)(b) disclosures, so that the public is aware of the commitments of a public
authority towards it.
·
There has been a lot of demand
to expand the modes of depositing the fee of making an RTI application. In an
effort to do so, the Government recently decided to accept Indian Postal Orders
as a mode of payment. The Commission would recommend that even a Rs.10 postal stamp affixed to the application should be
considered as valid payment of fee for registration of an RTI application.
There is also a case for ensuring that rates of fees across the country are
made uniform.
·
One complaint has been that the
beneficiaries of the Act have largely been public officials and the educated
urban people, and the benefits have not percolated to the poor and the people
from the rural areas. This indicates that there is a need on the part of
Government to fulfil its obligations u/s.26 of the
Act. Public authorities must set aside a specific budget for dissemination of
knowledge amongst citizens, so that the provisions of the Act can be utilised at all levels of society, through heightened
public awareness.
·
The Commission feels
handicapped about not being able to hold Central PIOs
and public authorities accountable for non-implementation of its
orders/decisions. To give teeth to its powers, it is essential that the
Commission be given powers of contempt of Court.
·
Provision will need to be made
to apply the CIC’s decisions to States with all
attendant penalty provisions; to allow State Commissions to refer a matter to
the CIC; and to empower the CIC to withdraw a case, which may be before it or a
State Commission for appeal.
Part C : Other News
·
BCAS appreciated in Loksatta :
CA
Prof. Suresh Mehta has sent a cutting of an article in the Marathi daily ‘Loksatta’ in which appreciation is made of the contribution
of BCAS in spreading of RTI movement.
·
No provisions for flats for differently abled citizens:
Vijaya Kalan
(37) is partially paralysed and she is a heart
patient. But what makes her situation worse is the fact that she has to drag
herself up and down seven floors from her apartment, whenever there is load
shedding in her complex at Kharghar.
From the reply
received in response to RTI application, it is gathered that CIDCO, that
developed the housing complex, has blatantly over-looked the rights of
handicapped people. They have not reserved any apartments for them in the
housing societies developed since 1995.
·
Is the RTI effective in curtailing corruption ?
Ms. Aruna Roy, the mother of the RTI movement in
·
Suppression of information :
Justice Chandrachud, talking about his experience as a Judge, said
that each time he heard a matter he asked himself “Do I make a
difference ?” because he did not see the orders being implemented. “We
must contemplate the need to incorporate citizens as stakeholders and increase
the participation of citizens in governance as well as allow experimentation”.
One of the greatest problems faced by the judiciary was access to information.
There is a deliberate act of suppression of information and the Right to
Information Act is performing a valuable function.
·
PIO seeking bribe !
In the first
case of its kind after the Right to Information Act was enacted nearly three
years ago, the Anti-Corruption Bureau (ACB) has trapped an Ulhasnagar
Information Officer and his assistant while they were accepting a bribe.
Sachdeo went straight
to the Thane ACB Deputy Commissioner Kishore Jadhav. He named the officer, Raosaheb
Govind Bhalerao, and senior
clerk Ramchandra Gavit. The
ACB told Sachdeo to go back and pretend to hand over
the money, which he did. Bhalerao and Gavit were caught in the act.
This is the
first time an Information Officer has been caught for asking for a bribe to
provide certified documents.
·
Power bills of the President of
The whole
country suffers from power shortage. However, Rashtrapati
Bhavan is always kept brightly lit !
Rashtrapati Bhavan has
incurred power bills of Rs.16.71 crore over the past
five years, almost doubling from Rs.2.4 crore in 2003
to Rs.4.39 crore in 2007.
The
information on electricity usage in the President of India’s official residence
was revealed in a recent RTI reply. In the five-year period from January 2003
to December 2007, Rashtrapati Bhavan
consumed 2.69 crore units of electricity. Its usage
rose from 37 lakh units of power in 2003 to 68 lakh in 2007. Last year’s bill of Rs.4.39 crore was higher than the Rs.4.02 crore
spent in 2006.
·
UNDP report, just released,
has found that cor-ruption continues to be
a crippling problem in countries in the Asia-Pacific region :
The report has published three sets of ranking
produced by Transparency International, the World Bank and the International
Country Risk Guide. While
Under ‘A Thought for Today’ (June 16) “It is difficult,
though not impossible, to stop government officials from hiding their corrupt
take.” Editorial in The Times of India writes :
“However, the picture is not entirely gloomy. There are
encouraging signs of success in tackling corruption. Right to Information (RTI)
laws have had the effect of making governments more accountable. In 1990, there
were only 13 countries in the Asia-Pacific with RTI laws. By 2007, the number
had risen to 70. In
·
Fight for your Rights :
A new programme
on Right to Information is being telecast every Saturday at