The Right to Information
For BCAJ March, 2008
Narayan
Varma
CIC’s decisions
In the past, we have
reported on this subject. Now there is an interesting order passed by
three-member Bench of the Central Information Commis-sion
on this subject. Along with the issue on the subject matter of appeal, certain
other issues before the Commission included very interesting ones, such as :
In this case, Mr. Nusli Wadia, Mumbai had made a
request to the Ministry of External Affairs (MEA) for copies of various
documents connected with Jinnah House, particularly
with reference to a letter written by Mrs. Dina Wadia
(Mother of Mr. Nusli Wadia)
to the Prime Minister of India.
When no response was
received, Shri Wadia had
made the first appeal. The AA in his order wrote :
“The CPIO, Ministry of
External Affairs is directed that subject to the provisions of S. 8 of the RTI
Act, 2005, he may, without any further delay, provide the information requested
by the applicant in his original application. If any information is withheld
u/s.8 of the RTI Act, the applicant may be duly informed of the reasons for
withholding the information.”
The CPIO then made
detailed response and provided various copies and further wrote :
“As you are aware, the
matter of Jinnah House has been subject of discussion
at the inter-governmental level between
With this background, the
issues as noted above had arisen.
On the first issue as
above, the Bench decided as under :
The CPIO decided the
matter for the first time concerning the application under the Right to
Information Act, 2005 and communicated the decision to the appellant vide
letter dated
The above is a very
interesting issue, possibly for the first time, decided and shall serve as
useful precedent.
On the second issue above,
the Bench wrote :
“The CPIO, MEA on
scrutiny of the documents pertaining to the case, is convinced that the
disclosure of contents of some of the documents would prejudicially affect
relations with a foreign State.
The CPIO has, therefore,
invoked provisions of S. 8(1)(a) of the Right to
Information Act, 2005 in respect of only that part of the information that
stands denied. It is for the concerned public authority, which is the authorised agency for the purpose, and not for this
Commission to take a view as regards applicability of the provisions of S. 8(1)(a) in this case and the Commission is of the view that
there will be no obligation on the part of a public authority to provide
information if disclosure of the same prejudicially affects relations with a
foreign State, which is the responsibility of the MEA.”
The Commission went one
step ahead and it qualified the above decision as under :
“However, the provisions of S. 8(1) have to be read
with S. 8(2) and S. 10(1). U/s.8(2), a
public authority may allow access to exempted information if public interest in
disclosure out-weighs the harm to the protected interests”. Moreover, u/s.10(1) “notwithstanding anything contained in this Act,
access may be provided to that part of the record which does not contain
any information which is exempt from disclosure.”
In the instant case, it
is, therefore, necessary to determine as to whether public interest would
justify the disclosure of the information or not, and indeed whether in fact
the disclosure of the entire information withheld, including the report of the
AG, would compromise the exemption granted by the law. Since this issue has not
been determined either by the PIO or the First Appellate Authority, the
Commission after careful consideration of the matter decided to call for the
relevant documents, the disclosure whereof has been denied u/s.8(1)(a). After
examining the documents, the Commission will consider whether it would be in
public interest to order disclosure or not.
(Mr. Nusli Wadia Mumbai v. MEA,
Order dated
The RTI Act :
Further on the Annual
Report 2005-06 (i.e., continued from February 2008 issue)
Chapter
3 deals with the subject of Proactive Disclosure — Strategies of Success.
S. 4(2) of the RTI Act provides that “It shall be a constant endeavour of every public authority . . . to
provide as much information suo motu to the public at regular intervals through various
means of com-munications, including internet, so that
the public have minimum resort to the use of this Act to obtain information.”
The Government’s duty to
publish information proactively is a natural corollary of the public’s right to
information and forms the sine qua non of transparent and accountable
governance. It is this provision that makes S. 4, which requires the Government
to publish all information, except that which the law permits to be kept
secret, the most pivotal element and forward-looking clause of the RTI Act. The
objectives of the Act would be achieved in the truest sense when S. 4 is
implemented in letter and spirit. This is a landmark achievement of the
Government in more ways than one.
The Chapter notes, which
was widely not known, that S. 4 is strengthened by the penalty powers vested in
the Central Information Commission, which can be invoked against those
information officers who violate the basic provisions of the Act. Such
violation includes not proactively publishing the information specified under
the Section, both electronically and by other means.
S. 4 is
strengthened by the penalty powers vested in the Central Information
Commission, which can be invoked against those information officers who violate
the basic provisions of the Act. Such violation includes not proactively
publishing the information specified under the Section, both electronically and
by other means.
The Central Information
Commission can, u/s.19 (8)(a) (iii), require every
public authority to “publish certain information or categories of information”
under the Act. Should the public authority not comply, S. 19(8)(c) gives the Commission the power to “ impose any of the
penalties provided under this Act”.
The RTI Act is among the
strongest pieces of legislation in the world providing citizens access to
public documents. Indian lawmakers and civil society had studied the experience
of other countries and the Act has incorporated best practices from
information-access laws of countries as diverse as the
The Government has recognised the need for filing or indexing its records and
has published the Central Secretariat’s Manual of Office Procedure, under the
Ministry of Personnel, Public Grievances and Pensions, Department of
Administrative Reforms & Public Grievances.
The practice of record
management in the Government of India involves recording, retention, retrieval
and weeding out of papers/files and nominating an officer not below the level
of a Section Officer as Departmental Records Officer (DRO) to be in charge of
overall records management.
Records are divided into
three categories :
The Manual notes that
files need to be indexed at the time of their recording. The records retention
schedule must be reviewed at least once every five years.
An efficient records
management system is a pre-requisite for an accountable and transparent
Government that is accessible to the public. Public authorities must not forget
that without effective records management, it is pointless to have an
information access legislation that guarantees the public right to government
information, but not access to it, due to the lack of proper documentation of
this information, manually or electronically.
Other News
A professor from a college
affiliated to the
The SIC rapped the
University and ordered that the institution and all its affiliated colleges put
up boards, specifying the details of public information officers (PIOs) and Appellate officials, on every campus.
I don’t know how far it is
true, but The Times of India reports a case where
Shailesh
Gandhi, whose name is now synonymous with RTI, replies to the question from a journalist : “What is the future of RTI ?”
“If it continues at this
pace, RTI will become a mass social movement and usher in a social change in
governance. The honest officer will become bolder. It will be a gradual
process. Last year, there were 8000 RTI applications, this year about 12,000
applications have been made to date. This indicates that people are slowly
using RTI to seek answers. As this movement gets stronger, the bureaucracy and
the politicians will be more vigilant.
In the next five years,
the movement will grow if we let it grow without hindrance. No government will
dare touch RTI — that will be the power. We have to let it grow, it cannot be
infant mortality.”
Nowadays the Central
Information Commission (CIC) is busy playing ‘agony aunt’ to a score of babus whining over various promotional and compensation
matters. That seems to be the big new bugbear of the CIC. The trend in babudom, insiders share, is that many bureaucrats are now
actually using the RTI Act for their own personal vested interest. Ranging from
scrutinising file details when superseded, to petty
complaints on out-of-turn allotment of houses, these applications make up an
alarming 40% of the ones received by the CIC.
No wonder then that Wajahat Habihullah, Chief Information
Commissioner, is worried about the backlog, as it is already dealing with a
huge one of more than 12,000 second appeals by citizens.
The Defence
Ministry’s request for exemption from the Right to Information Act has been
turned down by the Committee of Secretaries which has asked it to come up with
a fresh proposal if it wants the benefit for its intelligence wing.
The Committee, chaired by
Cabinet Secretary K. M. Chandrasekhar, also rejected a similar request from the
CBI for exemption and inclusion in the second schedule of the RTI, under which
as many as 22 organisations have been included for
whom the Act is not applicable.
The case of the CBI was
not considered necessary in view of the provisions of S. 8(1)(h)
and other provisions that can be invoked for non-disclosure of sensitive
information, the Committee ruled. According to S. 8(1)(h),
an organisation can withhold information which would
impede the process of a probe or lead to apprehension or prosecution of offenders.
The plea of the
Directorate General of Central Excise Intelligence for inclusion in second
schedule was rejected. However, the plea of the Directorate General of
Income-tax was agreed to, in view of the nature of their surveillance activity.
According to Vijay Khole, Vice-chancellor of the
Ice-creams from Gelato Italiano, US Pizza on the Pune
Express Highway and meals at Cream Centre and Legacy of China — these are just
a few of a long list of hospitality bills at the Rajiv
Gandhi Centre for Contemporary Studies in Mumbai University that ran into over
Rs.1.5 lakh and were footed by the University Grants
Commission.
RTI application filed by Madhu Paranjape, a senior
Professor at
RTI activists, led by
social worker Anna Hazare, will soon call on
President Pratibha Patil
and PM Manmohan Singh to protest against the appoint-ment of retired bureaucrats as Information Com-missioners.
Hazare
said that he has specifically brought to Maharashtra CM’s notice that the performance of retired bureaucrats was
dismal and that he should refrain from giving them plum assignments. So far, Vilasrao Deshmukh has appointed
three retired bureaucrats-former MMRDA Commissioner Suresh Joshi (Chief
Information Commissioner), former Legislature Secretary Vilas Patil and former PWD Secretary Vijay Borge,
as Commissioners for Nagpur and Aurangabad
divisions, respectively. He brought to Deshmukh’s
notice about their poor disposal rate. They clear less than 100 cases per
month. As a result, in the last two years, more than 13,000 cases are pending.
This defeats the basic purpose of the legislation. As reported, status of RTI
cases as on December, 2007 is : Appeals filed
15,333, only small number disposed of, appeals pending : 12,882.
Management of the J. J. School of Arts started compiling an inventory of its treasure trove only when the RTI application was made by J J alumnus Vidya Vaidya asking for a complete list of art works stored in the school. It was feared by her that valuable art works lying in the college vaults were ruined by termites, fungus and humidity. Now the School has discovered thousands of works by the ex-students, some of them now well-known artists.