The Right To Information

For BCAJ October, 2006

Narayan Varma

In recent months, a number of decisions are made by the Central Information Commissioner in the appeals furnished by Chartered Accountants and others dealing with income-tax matters. I cover some of them hereunder :

· In more than 10 cases decided in August 2006, the appellants’ appeals pertain to denial of information on tax matters of third parties. The appellants asked for copies of assessment orders or progress of investigation which is not complete or tax recovery information, details of tax evasion, and in one case, basis of calculation of drawings of his daughter at Rs.60,000 p.a. in the assessment order.

All these are denied, being exempt under one or more clauses of S. 8(1) including clauses (e), (h), (j), etc.

· One interesting case is decided on 17th August 2006. Here, the appellant had sought certain information, asked for inspection of files including file notings, the details of inspection and searches made by the Income-tax Department in the premises of the tax evaders, the details of amount of tax evasion and recovery from tax evaders, guidelines for payment of rewards to informers, etc. All this information was sought in the pre-designed and structured formats furnished by him.

In response, CPIOs provided some information and withheld some, considered as exempt u/s.8(1) (h) and (j).

Commission’s decision :

(1) The appellant should clearly specify the information required by him. He may seek inspection of relevant files, including file notings and after the identification of relevant documents, request for copies may be made, as per the prescribed procedure.

(2) Information sought should be provided in the format in which it is sought. If it does not exist in that format, it ought not be necessarily created for servicing the request for information. In the instant case, the appellant had asked for data in a tabular form, which did not exist with the public authorities. Hence, partly furnished and partly denied.

(3) In compliance with S. 4(1) of the Act, the public authorities should regularly post the details of their actions and outcomes on their notice boards, particularly after the accomplishments of investigations and finalisation of reports such as Tax Evasion Petition (TEP). Information seekers would thus have access to information without asking for it.

(4) The appellant and the respondents agreed to co-operate, so as to facilitate the sharing of information.

The above is an interesting decision and useful for information-seekers on tax evasion, specially the decision at (3) above.

A number of decisions also have been taken in appeals filed by CAs in the matter of ICAI functioning. I report one :

Shri S. V. Barve sought certain information relating to the functioning of Pune Branch of WIRC of ICAI. The CPIO provided a point-wise response and furnished part of the information. For the remaining information sought, the CPIO informed that an Inquiry Committee, constituted by the competent authority, has been investigating the matter against which queries were made by the appellant. Hence, part of the information sought could not be furnished, as disclosure of such information is barred u/s.8(1)(h) of the Act. The Appellate Authority has upheld the decision of the CPIO.

The case was heard on 29-8-2006. The CPIO was present. The appellant however could not be present. His phone number was also not available in the papers submitted by him for personal contact to seek any clarification at the time of hearing.

The CPIO explained that the information sought and as admissible under the Act has already been furnished to the appellant. He also mentioned that the remaining information would be given to him soon after the investigation process is over and a final decision on the matter of allegations, is taken by the competent authority. The appellant has already been informed to this effect by the Appellate Authority.

The RTI Act :

To continue the study . . . . .

Just as S. 12 to S. 14 deal with the Central Information Commission, S. 15 to S. 17 deal with the State Information Commission.

Every State Government is required to constitute a body of information commission to exercise the powers conferred on, and to perform the functions assigned to it under the RTI Act. The Commission consists of the State Chief Information Commissioner and State Information Commissioners not-exceeding ten. Here they are appointed by the Governor on the recommendation of

(a) the Chief Minister,

(b) the Leader of the Opposition in the Legislative Assembly and

(c) a Cabinet Minister nominated by the CM.

All other details remain the same as in respect of the Central Information Commission as covered in September BCAJ.

Other News :

· According to the Maharashtra’s Chief Information Commissioner, Suresh Joshi, over the last eight months, the RTI Act has played a major role in curbing corruption. The largest number of applications his office receives are against municipal corporations, municipal councils, the education, home and revenue departments.

· It is believed that people in Maharashtra are increasingly becoming aware of the power of the RTI Act. From unearthing corruption cases to the current status of potholes and from seeking the status of jobs in Government departments to exposing the Government’s claims of lack of political interference in transfers, the RTI has played a major role.

· Against the above, reports from Punjab are very disappointing. The Government has issued the Punjab Right to Information Rules under the RTI Act and appointed a former Chief Secretary, Raja Kashyap, as Chief Information Commissioner, but questions have been raised over its implementation.

Two cases which have gone up to the Courts reflect the Government’s attitude to parting with information. In one case, two police officials convicted of abduction and murder, in separate cases, had been subsequently pardoned by Government order. That was challenged in the High Court through a public-interest suit. The petitioner applied for the files concerned through the RTI. The Government simply refused, telling the HC, “since the records were of a highly confidential nature, these cannot be produced.” The HC has overruled this argument and directed the information to be given at the next hearing.

In the second, which has gone up to the Supreme Court, a State civil service examination candidate used the RTI to inspect the State Public Service Commission records. He was refused, but the High Court permitted his plea. The State has now gone to the Supreme Court, asking for a rejection of the HC order.

Observers concede that the Act has to be implemented in the right spirit, but add that people have to learn how to exercise their rights effectively. The RTI is a help on this count.

· The three-stage civil services exam may be derailed this year if a bunch of candidates who failed to clear the first hurdle in May are allowed to seek information about the ongoing selection process under the RTI Act, UPSC officials apprehend.

Out of the 1.7 lakh candidates who appeared for the preliminary exam in May, the Union Public Service Commission short-listed 7,766 in August for the main exam to be held in October and November. There will be a further filtration for interviews to be held next April.

This carefully-crafted annual schedule, which has been in existence since 1979, seems in danger of being disrupted because of the manner in which about 300 unsuccessful candidates have invoked the RTI Act to ask about the preliminary exam, even as UPSC is in the process of conducting the main exam.

They filed RTI applications in August, asking UPSC to disclose the correct answers for the multiple choice questions put in the preliminary exam, the cut-off marks for general and reserved candidates and marks obtained by each of the applicants.

UPSC’s Public Information Officer M. P. Singh rejected all those applications, saying the disclosure of such information would “irreparably undermine the integrity, strength and efficacy of the competitive public examination system of paramount significance.”

But the issue had by then spirlled out of control on account of controversial order passed by the RTI regulator, Central Information Commission (CIC), directing UPSC in an unrelated case on September 1 to disclose cut-off marks for general and reserved candidates.

UPSC is meanwhile preparing to file an application requesting CIC to review its September 1 decision on cut-off marks on various grounds, including the apprehension that it would open a pandora’s box on the alleged gap between general and reserved candidates.

· While the Government has been trying to reduce access to file notings, the Supreme Court has recommended amendments to the Right to Information Act that might prove just as controversial.

In its first annual return in May on implementation of the RTI Act, the Apex Court has recommended three far-reaching amendments :

· Adding to the existing list of 10 categories of information exempted from disclosure by S. 8 of the RTI Act, the SC suggested a clause that provides a similar cover of secrecy to 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 judiciary or administration of justice.

· The SC also recommended that the administrative order in which the CJI or his nominee expresses such an opinion should be beyond challenge. “No appeal or any other proceedings shall lie against the order” of the CJI or his nominee on whether certain information was exempted from disclosure under the RTI Act.

· As for the matters on which citizens are allowed to seek information, the SC proposed that the appellate body should not be RTI’s independent regulator, Central Information Commission. All such appeals should instead be decided by the SC’s own Registrar General.

· Interesting, though oft-repeated, a story recently reported in the newspaper runs like this: A young man came to Mumbai from Bihar about six months ago and found a place to live (in a jhopadpatti), but before he could find some work, he needed that ticket of existence — a ration card. He went to the ration office and filled out a form, and when he submitted it, a peon took him outside and told him “chai pani jaroori hai”. Our innocent thought, well, I don’t mind buying him some tea, but was quickly disabused of this when the peon told him that he will have to pay Rs.2,000. The young man was shocked and offended. Of course, he did not have 2,000 rupees, but more importantly, he did not see why he had to pay this.

He went back to his colony and his neighbours told him to be reasonable, go and kowtow a bit, negotiate, go to the local shakha, he will be able to get it down to Rs.1,000 may be Rs.800. But the young man (from Bihar, no less) said no, why should I pay a bribe.

Instead, he bided his time and watched as several new entrants to the slum followed the ‘business-as-usual’ procedure and got their ration cards in a month, a couple of weeks, whatever. Two months after making his application for a ration card, the young man made an RTI application, where he asked for two pieces of information :

(1) the status of his application, which he attached; he wanted to know the name of officer who it went to and when; and then how it proceeded and so on; and

(2) a list of all persons who had received ration cards (in his area) over the two-month period since his application, the dates each of those persons made applications, the date they received the ration card and the person who approved it.

The day after he submitted the RTI application, the peon from the ration card office came to his home and told him his ration card was ready. He went to pick it up and the officer invited him in, offered him some tea and water, and pleaded with him to remove his RTI application, irrespective of whether he removed his application or not, he did get his ration card.

· In its latest bid to keep file notings beyond the reach of citizens, the Government has come up with a legal argument that will have repercussions on the smooth operation of the Right to Information Act, 2005.

About 10 months after the law has come into force, the Department of Personnel and Training (DoPT) said last week for the first time that appeals being filed before Central Information Commission cannot be heard by separate Benches.

Quoting the opinion of Additional Solicitor General Gopal Subramanium, DoPT contended that there was no provision in the RTI Act enabling the head of CIC, Wajahat Habibullah, to constitute separate Benches. Regardless of administrative efficiency, DoPT said that every appeal will have to be “necessarily heard by all the members” of CIC.

The provocation for such a belated discovery of the alleged lacuna in the RTI Act was an order passed by a Single-member Bench of CIC, O. P. Kejariwal, on July 13, directing DoPT to remove from its website a misleading claim to the effect that file notings made by ministers and bureaucrats could not be disclosed to citizens. In an obvious dilatory tactic, DoPT has sought to upset CIC’s arrangement of dividing work among its five members and constituting separate benches u/s.12(4) of the Act, which says that the head of CIC ‘shall be assisted’ by its members in the exercise of all its powers.