The Right To Information
For BCAJ September, 2006
Narayan Varma
So far in this series on RTI, I have covered three cases as decided by the Central Information Commissioner (CIC). Here are two more :
·
Bhagat Singh
v. DG of IT (investigation)
The decision is made on
Information was denied by stating that it is exempt u/s.8(1)(j). In the first appeal, the Appellate Authority has observed that the appellant was having a personal dispute with the complainee and the complaint made to the Department of Income-tax was out of personal grievance. The appellant’s interest in the information sought was purely of a personal nature and, therefore, the information sought had no relationship with any public activity or interest.
Before the CIC, the applicant stated, "he has been falsely implicated in a dowry case by Smt. Saroj Nimal, in which she has accused that an amount of more than Rs.10 lakhs was spent by her for second marriage with the appellant. A criminal case against the appellant is pending on the basis of the complaint by Smt. Saroj NimaI. The appellant has, therefore, questioned the basis of her dowry complaint by seeking evidence from Investigation Wing of the Department of Income-tax on sources of income and assets acquired, which has a direct bearing on the capacity of Smt. Saroj Nimal to pay the amount of dowry. The appellant has also mentioned that the sources of income and declared assets and expenditure of Smt. Saroj Nimal are not proportionate to the known or declared sources of income by her.
CIC’s
decision :
The appellant has mentioned the reason, as above, for seeking information on the Tax Evasion Petition filed by him against his wife. The aspect of strained human relations that may become the reason for seeking information is out of the purview of our mandate. However, the public actions, irrespective of the cause of such actions and disclosure of its outcome, fall under the domain of the RTI Act. The action taken on TEP has to be examined accordingly.
On the issue of progress report on TEP, it says :
"Investigations of the complaint on tax evasion by the IT Department is a part of the process of identifying the offenders and assessing the extent of tax evasion by them. Until the nature of offence is duly examined and thoroughly investigated and necessary action is taken under the relevant provisions of tax laws, the disclosure of investigation report on tax evasion is barred u/s.8(1)(h).
Needless to say, the Department of Income-tax is expected to conduct investigations fairly and objectively, and that in a transparent manner, so that the relevant investigation report could be made public soon after the taxes due from the offenders are recovered".
As the investigation on TEP has been conducted by DIT (Inv.), the relevant report is the outcome of public action, which needs to be disclosed. This, therefore, cannot be exempted u/s.8(1)(j) as interpreted by the Appellate Authority.
Accordingly, DIT (Inv.) is directed to disclose the report as per the provision u/s.10(1) and (2), after the entire process of investigation and tax recovery, if any, is complete in every respect."
· Though not related to Income-tax matter, one decision of interest to us is as under :
Arun
Verma v. Department of Company Affairs :
The appellant has sought information relating to certain companies registered under the Companies Act, 1956. The information sought relates to : registration number, date of incorporation, registered address, share holding pattern, name and address of Directors, etc.
The Appellate Authority in the Ministry of Company Affairs informed the appellant that ‘S. 610 of the Companies Act, 1956 provides that any person may inspect any document kept by ROC and obtain copy of any document from the ROC concerned on payment of prescribed fee’.
The Commission decided that as there is already a provision for seeking information under the Companies Act, the appellant may accordingly approach the Registrar of the Companies, as advised by the Appellate Authority, to obtain the relevant information. There is no question of denial of information to him.
The RTI Act :
To continue the study . . . . .
S. 12 to S. 14 fall under Chapter 3 titled ‘The Central Information Commission’. The Central Government constitutes a body to be known as the Central Information Commission. It consists of the Chief Information Commissioner and such number of Central Information Commissioners, not exceeding ten. They are appointed by the President on the recommendation of a committee consisting of the Prime Minister, the Leader of Opposition in the Lok Sabha and a Cabinet Minister to be nominated by the Prime Minister.
At present, the commission is made of :
1. Shri Wajahat Habibullah Chief Information Commissioner
2. Shri A. N. Tiwari
3. Dr. O. P. Kejariwal
4. Dr. M. M. Ansari
5. Smt. P. Balasubramanian
The above positions are to be held by persons of eminence in public life with wide knowledge and experience in law, science and technology, social science, management, journalism, mass media or administration and governance. They shall not be carrying any business or profession.
The term of office is for 5 years or till the member attains the age of 65 years, whichever is earlier and shall not be eligible for reappointment. However, an Information Commissioner is eligible for appointment as the Chief Information Commissioner.
Provisions are also made to fix the salaries and allowances payable, resignation and removal.
Other News :
· At the RTI camp and through the write-ups in magazines, website, etc. of other NGOs, BCAS Foundation has spread the information on RTI Clinic. Hence, we are having a number of persons who visit the clinic to get advice and information.
· Mr. Arvind Kejriwal, of Parivartan — NGO working on RTI issues — writing on the performance of the CIC states :
"The CIC is not empowered to change the concept and definition of information . . . . . . . The Indian law is said to be among the more progressive RTI laws enacted by more than 65 countries. The problem lies with its interpretation. When former bureaucrats were appointed to the posts of Information Commissioners, doubts were raised about whether they would have the will and strength to make governance transparent. Our worst fears have been confirmed.
The CIC disposes of half the cases without hearing the applicants. RTI rules clearly say that every applicant has to be heard before deciding his case. The CIC argues that it is a quasi-judicial body, not bound by the principles of natural justice and, hence, need not hear applicants.
The problem is that the Information Commissioners, being former babus, were never in the habit of hearing out people before taking decisions. The CIC, therefore needs to be tamed."
Against the above, the CIC in one interview informs :
What has been the impact of the Act
until now ?
In the first three months, we received 700 applications. Now we have nearly 2,000 for this month alone. Even organisations working in the field felt that we would get around 500 applications a month, but the actual average is 800. It is flattering yet daunting.
What is the biggest challenge that
you face with the Act ?
In short, here we have a government labouring under anachronistic Acts, such as the Official Secrets Act, 1923, designated ‘to protect the government from the people’ and citizens in a democratic country empowered by the RTI. The two are out of sync. When the government is by the people, where is the question of protecting it from the people ? Yet, several government departments begrudge information. People seem ready to storm the metaphorical Bastille with the Act in hand. Basically, a lot of people mistake the Information Commission as a kind of grievance redressal cell, which it is not. It is not a weapon to fight all that is wrong with the system. The biggest challenge is to get the people and the government to see that this is just an empowering tool, and not the panacea to cure all systemic ills.
Proposed amendments to the RTI Act
When the story broke out about the cabinet approving the proposed amendments to the RTI Act, one of them being to keep the file notings out of the public purview, there was a predictable furor.
Above proposed amendments to be made include in relation to section 2(f) of the RTI Act which defines ‘information’. Section 2(f) clarifies what constitutes information, without specifically excluding any forms of information. Section 2(f) includes ‘records’ within the definition of ‘information’, and section 2(i) then defines the meaning of ‘records’. Records are stated to include (a) any document, manuscript and file. The Amendment Bill seeks to amend the definition of records in section 2(i) to include : (a) any document, manuscript and file . . . . but does not include, for the purpose of sub-clause (a) file noting except substantial file notings on plans, schemes, programmes of the Central Government or a State Government, as the case may be, that relate to development and social issues.
Recommendation from Commonwealth Human Rights Initiative on the above proposed amendment states :
"In principle, it is troubling that the Amendment Bill seeks to exclude most file notings from public scrutiny. The Preamble to the RTI Act clearly states that the law is intended to ‘promote transparency and accountability’. But if file notings are excluded, this will substantially undermine that objective, for little or no benefit. It is not clear what harm will be caused to the legitimate interests of the country if file notings are included. However, excluding access to file notings will restrict the public’s ability to scrutinise the decisions of public servants and to ensure that decisions are made on the basis of solid evidence and after considering the public interest. File notings help the public to understand what officials were thinking when they made decisions, and give the public confidence that decision-making processes were impartial, appropriate and well-considered".
All activists of the RTI movement have strongly opposed above and other amendments proposed which propose to block the indentities of the persons who have made the file notings, made inspection, gave recommendations or tendered advice or opinion.
Former Union Home Secretary Madhav Godbole wrote in an open letter to the Prime Minister "Making the notings on the file open to people can be the single most effective check on the rampant corruption both at the administrative and political levels". Recent Magsaysay awardee Arvind Kejriwal said that the entire exercise to amend the law is to mislead the people.
Magsaysay awardee Sandeep Pandey and Anna Hazare had been on indefinite fast, the left parties and some prominent political leaders supported the RTI activists in their fight to prevent the UPA Government from amending the RTI Act and strong opposition was witnessed from all non-political quarters and social activists.
It is interesting to note that The
Financial Times,
·
One of the few worthwhile reforms introduced by
·
Given
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For
All are happy that the proposed amendments are stayed atleast for the time being and the amendment bill is not being moved in the current session of the Parliament. Such decision reflects the power of the people. Let us all resolve to enhance it further.