The Right to Information
For BCAJ June, 2008
Narayan Varma
Part A : CIC’s decisions
Delay
in reply by PIO and change of stand, etc. :
Three
interesting points are decided in CIC’s decision
dated
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
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
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
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
“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
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 information 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. ONGC, 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
safeguards to be built into the Act, such as :
o
Safeguards to discourage those who request
personal information,
o
Safeguards to ensure that the Act does not
become a tool in the hands of delinquent employees to serve their own
interests,
o
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 visit the 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 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
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
·
Does R in RTI mean ‘Redressal’ ? :
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 unrecorded
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 so on. 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 :
o
A resident of
o
An appellant got details of the computation of his
pensionary benefits denied to him for the last 10
years.
o
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.
o
The Municipal Corporation of
o
A group of appellants from
o
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.
o
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 enlightened
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.