The Right to Information

For BCAJ September, 2008

Narayan Varma

Part A : CIC’s decisions

· Mr. D. E. Robinson of Goa requested for certain financial information from the Commissioner of Income Tax, Panjim in respect of all the contesting candidates for election in Goa in the year 2006.

The information sought was :

Whether in all the cases where the contesting candidates have declared immovable property viz. ‘urban land’ as defined in S. 2(ea), explanation 1(b) of the Wealth Tax Act, (including agricultural land situated within the 8 km limit of notified towns), the values declared were verified in the context of tax liability under the Wealth Tax Act.

Further he had asked in how many cases such lands were declared in the tax records or not declared and in how many cases action was taken to bring the said properties to tax under the Wealth Tax Act, etc.

The information was declined citing exemption u/s.8(1)(j) of the RTI Act. Reply also stated that the matter was under verification and the results could be disclosed only after the process was completed.

The Appellate Authority interestingly dealt the matter very differently. He held that information requested by the appellant was general statistical information and there was no question of referring it to a third party — as was done by the CPIO — as the requisite information was not supplied by that third party. He noted that this information was presented by private persons/party in the affidavits filed before the Election Commission. The CPIO, according to the AA, was responsible only to furnish information held by his office and not which was held by other public authorities such as the Election Commission. He noted that information requested covered information relating to all candidates who contested election in Goa in the year 2006, which according to the Appellate Authority was ‘general in nature’. He advised the appellant to identify and specify the information required by him and to submit a fresh application to the CPIO where the information was known to be held. The Appellate Authority dismissed the first appeal of the appellant.

The appellant before CIC contested the conclusion of the Appellate Authority with very detailed submissions in writing. In one of the paras he also wrote : “It is evident from the facts that neither the field officers, nor their superiors took any action to collect the revenue legitimately due to the State by performing their bounden duty. In such circumstances, the CPIO should have informed the appellant that no action had been taken and the field officers and the Commissioner have failed to do their duty. The reply given by the CPIO is evasive and seeks to cover up serious lapse on the part of the Department.”

CIC gave interesting decision. He praised the appellant as a public-spirited person who wishes to use the RTI Act to bring into open, attempts by certain candidates in the elections to State Legislatures and the Parliament to escape public scrutiny of the statements they make to the Election Commission and to the Income-tax authorities as well as to other State agencies about their personal wealth. The appellant believes — and rightly so — that if declarations by these candidates were to be carefully analysed by public authorities dealing in tax collection as well as those engaged in conducting free and fair elections such as the Election Commission, a number of skeletons will come tumbling out of cupboards. He bemoaned the fact that public authorities failed to take coordinated action to prevent, what he believed to be, manifest violation of the laws of the land by contesting candidates in election.

However the issue is decided as under :

The response of the Appellate Authority (AA) has been to examine the matter strictly within the four-corners of the RTI Act. Hence his conclusion that the CPIO was required only to give that information which he held and not what was in the control of other public authorities. AA did not go into the subject of the obligation of the Income-tax Department to collect all information from wherever it might be available in order to make a correct tax assessment of an assessee and especially when such assessee happens to be a candidate contesting in an election, which requires him to make a correct and complete disclosure of his income and wealth.

The force of the logic employed by the appellant is compelling. All he urges is that public authorities expand the focus of their responsibilities and travel beyond the narrow limits of their assignments to reach out to the information held at multiple points in order to make a correct assessment which will have vast implications for tax collection as well as for the sanctity of elections. One would be tempted to grant him the information he has requested, but the difficulty is that the type of information he has asked for is not maintained centrally by the public authority to which his RTI petition is addressed.

In view of the above, it is not possible for the Commission to go against the decision of the Appellate Authority. The type of information which the appellant has requested is decidedly not maintained centrally in the usual course of business. The RTI Act cannot be invoked to force a public authority to collect information in a particular manner. In fact, it can only direct disclosure of the information that is available. As such, in spite of empathy with the spirit of the appellant’s RTI application, this Commission is unable to order the public authority to provide him the requested information.

However, considering much of what this appellant has said in his RTI submissions — which from all accounts, appears to be an expression of the anguish of a public-spirited and a concerned Indian citizen about overt violations of law regarding various types of disclosures — the public authorities connected with the type of information he has requested, viz. the respective Income-tax Departments and the Election Commission, may take note of these submissions to consider putting in place systems and mechanisms which would create conditions for automatic cross-check and scrutiny of incomes and wealth statements filed, not only before the Income-tax authorities, but also before authorities such as the Election Commission by contesting candidates. The system, if devised, has the potentiality to help the long reach of law to force candidates in elections (who also happen to be tax assessees) to act truthfully and responsibly in matters of disclosure of incomes.

CIC then directed that a copy of his order may be sent to the Chief Election Commission as well as to the Revenue Secretary of the Government of India and the Chairman of the CBDT for such action as they may deem fit, given the objectives spelt out above.

[Mr. D. E. Robinson v. Income-tax Department, F.No. CIC/AT/A/2007/01522 of 27-6-2008]

· What is the Third Party information?

Shri R. K. Sarkar in his RTI application sought information pertaining to Shri Kalyan Chowdhury, who was the Commissioner of Income-tax, Burdwan. The queries were generally related to whether any enquiry was conducted against Shri Chowdhury by his superiors as, according to the appellant, Shri Chowdhury attended office only thrice a week on account of he residing in Kolkata although his posting was at Burdwan. Besides, the appellant wanted to know the details of reimbursement of his telephone bills and so on.

The information was denied on the ground that this was personal information and exempt u/s.8(1)(j) of the RTI Act.

CIC in his decision held that the reasoning of the respondents is flawed. The queries which the appellant has made were regarding Shri Kalyan Chowdhury’s functioning as a government employee and there is no reason why such information should be withheld from the appellant. The Commission in the past has authorised disclosure of information related to individual government servants, which concerned his function as such public servant.

In view of the above, the matter was remitted back to the Appellate Authority to examine the issue de-novo with regard to the each query in the light of the observations made as above and to give his finding within 4 weeks from the date of receipt of the order.

[Shri R. K. Sarkar v. Income-tax Department, F.No. CIC/AT/A/2008/00232 of 30-6-2008]

Part B : The RTI Act

In the August issue, I had reported on some of the major recommendations on ‘Enforcement of S. 4 of the RTI Act’ of the conference of all CICs and SICs. In this issue, I report on some interesting recommendations of the said conference on other issues connected with the RTI Act.

1. There are instances of non-compliance of orders passed by the Commission. Specific provisions may be included in the RTI Act itself for dealing with contempt proceedings.

2. S. 20 of the RTI Act provides that subject to the contents and conditions of that Section, CIC/ SIC shall impose a penalty.

Issue is : What is the meaning of the word ‘shall’. Does it mean that it is mandatory on CIC/SIC to levy the penalty if the conditions of the Section are covered or is it discretionary ?

To reduce uncertainty in this matter, the conference recommends : S. 20 should be amended so as to give discretion to the Commission to decide the quantum of penalty. The word ‘shall’ appearing in S. 20(1) may be substituted by the word ‘may’.

3. Today, only PIOs are made accountable under the Act, the conference recommends : Accountability of public authorities and First Appellate authorities should be ensured : Amendments may be made in S. 20 and S. 21.

4. The conference also recommends that the Commission be given power to dismiss frivolous or vexatious complaints and the power to review its own decisions.

5. For furthering evolution of the RTI regime, the conference recommends :

· The RTI Act should be included in the syllabus at high school and college-level education.

· Information of public interest can be taken to door-steps of citizens.

· Commissions can prioritise second appeals/ complaints, which are of public interest, over the ones which are self-centric and self-serving.

· Uniformity in fees, further fees (costs) and charges for inspection, etc. throughout the country.

· Uniformity as regards disclosure obligations for items such as Annual Confidential Reports (ACRs), Annual Property returns (APRs), DPC proceedings, Income-tax returns, etc.

· More publicity on the RTI Act should be done by Doordarshan and All India Radio. Alternatively, the Central Information Commission can run its own private TV channel dedicated to RTI.

· RTI journal be made for circulation among the Commissions.

· Honorarium/incentives to PIOs/APIOs for doing additional work.

Part C : Other News

· Good governance :

N. Vittal, the former CVC writes regularly in Mumbai Mirror. In one of his recent articles, what he has written is very relevant for all of us to read :

Non-governmental organisations represent a growing significant element in the dynamics of better governance in our country. In a backward State like Rajasthan, the activism shown by Aruna Roy and her Mazdoor Kisan Shakti Sangathan (MKSS) have made the Right to Information (RTI) Act a significant element in checking and monitoring programmes affecting the public. The national Rural Employment Scheme, perhaps, is best monitored in that State, thanks to the tradition of MKSS activism.

An interesting aspect was highlighted by a visiting American professor, Sussman, an expert on the Freedom of Information Act in the United States, who has been studying the implementation of the Right to Information Act in India. He found that in West Bengal, the bureaucracy was very defensive, making access to information as difficult as possible. All applications have to be made on a Rs.10 stamp paper, which most of the time is not available. On the other hand, in Bihar, he found that the Government and the media were going out of the way to introduce jingles and advertisements to educate the public about the right available to them under the RTI Act. In Tamil Nadu, the Information Commissioner is optimistic that in due time, this Act may turn out to be effective in empowering the people by bringing greater transparency in the system.

Using the Right to Information Act, active NGOs can effectively monitor the performance of bureaucracies and ensure that there is greater transparency and less corruption. This is the formula needed for good governance.

· Travel bills of the Ministers of Maharashtra Government :

Ministers of Maharashtra Government ran up travel bills worth over Rs.7 crore in the first three years of their tenure. The public exchequer had to shell out these funds to pay for Ministers’ trips to their constituencies as well as some foreign jaunts.

Chief Minister Vilasrao Deshmukh’s globe-trotting took him to the top of the list as he incurred expenses of Rs.63.96 lakh. The CM’s domestic travel expenses came to Rs.32.45 lakh, while his foreign jaunts cost Rs.31.51 lakh.

Next in line whose travel bills ran up to Rs.47.86 lakh is Anil Deshmukh, Public Works Department.

Maharashtra’s Ministers incurred a total travel bill of Rs.7.44 crore from April 1, 2004 to March 31, 2007, according to figures provided by the Pay and Accounts Office of the State Government in reply to the RTI query.

· Do MPs/ MLAs constitute public authorities ? :

UPA Chairperson Sonia Gandhi, who played a pivotal role in seeing the RTI Act through, is herself in the dock. As an MP, she faces the possibility of being penalised Rs.250 per day for not responding to an RTI plea, as a citizen has complained to the Central Information Commission (CIC).

Whether information sought by an applicant from public representative qualifies as information sought under the RTI is the issue. Whether an individual, as an MP or an MLA, constitutes a public authority is also an issue. The Lok Sabha Secretariat (LSS) has taken a stand implying that an MP is not a public authority as defined under the RTI Act.

An RTI application is also made to MP Rahul Gandhi seeking information on recommendations made by him or his representatives to Ministries and Departments on assistance to NGOs.

The CIC has taken up hearing of five complaints under the RTI, two against Sonia Gandhi and one each against MP Rahul Gandhi, MLA Sahib Singh Chouhan, and Sunita Sharma, municipal councilor. As the issues were related, the complaints were grouped together.

The CIC, in its interim decision, held that an MP has been conferred a specific authority by the Constitution, in return of which he receives remuneration from public funds. But, before taking a decision in this regard, it felt that the interested parties be given an opportunity to be heard.

The CIC has asked the Central Public Information Officer of LSS to appear before it on September 15.

· CAG wants to conduct ‘performance audit’ of the Central Information Commission :

In a clash between two apex bodies of accountability, the Central Information Commission (CIC) has reacted adversely to the ‘performance audit’ proposed by the Comptroller and Auditor General (CAG) on the implementation of the Right to Information Act.

CIC questions the very jurisdiction of CAG to hold it to account. It asked CAG to ‘specify the terms of the reference’ of the proposed performance audit before it takes a call on whether it should submit at all to the constitutional body’s jurisdiction.

In an attempt to give a legal cover to its jurisdictional objection, the CIC pointed out that it was “an autonomous entity and the orders passed by it are final and binding, subject to scrutiny only by way of a writ under the Constitution of India.”

Already, very sensitive issue, whether the RTI Act covers the Courts beyond their administrative matters is under controversy. Now this becomes another sensitive issue.

· Power bills :

In the July issue, report was made on power bills of the President of India. Now the RTI application has brought to light ‘light’ bills of the Maharashtra Ministers. The following table shows two interesting figures where the bills in 2007-08 cross Rs.10 lakhs.

	2005-06 Rs.	2006-07 Rs.	2007-08 Rs
Vilasrao Deshmukh	15,59,320	15,17,466	25,47,718
Chhagan Bhujabal	7,36,362	6,64,657	11,91,039

The elected representatives defended themselves stating that the power bills are ‘quite normal’ as the residential area is huge and they also have servant quarters which have connection from the same meter. “We see to it that the power consumption is minimised in all ways. Strict instructions have been given to all those who are employed here to use the power judiciously”, Bhujabal said.

· Driving licence :

The RTI query reveals that the three RTOs in Mumbai issued 11.12 lakh duplicate licences in the last five years, while they issued 12.12 lakh new licences during the same period.

This effectively means that Mumbaikars lose 609 licences every day, which looks more like a Ripley’s believe-it-or-not factoid.

· PMO does not respect the spirit of RTI :

On taking the oath of office, every Minister is handed a copy of the code of conduct. It says, among other things, that Ministers should disclose to the PMO details of their assets, liabilities and business interests along with those of their family members.

On 6-11-2007, ‘India Today’ invoked the RTI, seeking information from the Prime Minister’s Office (PMO) whether Union Ministers had filed details of their assets and liabilities.

No information is provided on this application except replies that “the matter is under consideration of the competent authority and the information/reply will be sent in due course.”

Three reminders have been sent, but there is no action. Complaint has been made to CIC on 17-3-2008. Even that is yet not taken up for action.

· RTI fee may be scrapped :

A Parliamentary Committee has decided to recommend scrapping of fees at the time of filing applications seeking information from Government Departments under the Right to Information Act. The Parliamentary Committee, headed by Dr. E. M. Sudarasna Natchiappan, has said scrapping of fees at the initial stage would help in effective implementation of the two-year old law.

“The technicality of admitting an application only on receiving a fee of Rs.10 is undermining such a revolutionary law. We feel that there is an urgent need to do away with this step which reflected a bureaucratic mindset,” Natchiappan told HT.

· Study efficacy of RTI :

The Department of Personnel and Training has decided to get international accounting firm Pricewaterhouse Coopers to study the efficacy of the Right to Information Act as it marks its third year on October 12. The RTI Act has been showcased by the UPA Government as one of its key achievements.

Suspicious that this study could end up helping babus instead of citizens, leading RTI activists, including Aruna Roy and her Mazdoor Kisan Shakti Sangathan (MKSS) and Shekhar Singh and his National Campaign for People’s Right to Information (NCPRI) have launched their own alternative study.

They have formed RAAG (RTI Accountability and Assessment Group) which will examine what they call ‘the RTI regime.’ Significantly, Google Foundation has stepped in to make this study possible by offering $ 250,000 as an initial grant.

· PAN card :

In one appeal before CIC, the appellant wanted to know from the Income-tax Department as to what has happened to his application for cancellation of his PAN card. In reply, the Department has informed the appellant that the Income-tax Department was not empowered to cancel any PAN card once it was issued.

Readers may consider whether information furnished is correct. Ss.(7) of S. 139(A) provides :

(7) No person who has already been allotted a permanent account number under the new series shall apply, obtain or possess another permanent account number.

All those who were issued two PAN cards were compelled to surrender one. Obviously the same must have been cancelled by the Income-tax Department. Further, what happens after the PAN holder dies, the firm which is allotted PAN gets dissolved, etc. Are PAN numbers not to be cancelled ?