Right to Information

For BCAJ June, 2007

Narayan Varma

Records at the Supreme Court of India :

One Mr. Satish Mehra of Mumbai made an application to the Registrar, Supreme Court of India seeking information regarding interpretation of one Supreme Court order regarding Barium Carbonate. He received the reply that it is beyond the jurisdiction of the CPIO to interpret the judgement of the Supreme Court or to provide an opinion on whether action taken by various public authorities is in conformity with the decision of the Supreme Court or not. He further proffered with the following advice :

"If you feel that the officials are misusing the decisions of the Supreme Court to solve their own purpose, you may initiate proper legal action before appropriate forum, if so advised."

The Appellate Authority ruled that no error is found in reply given by the CPIO. It further wrote in the order :

"The Judicial and Administrative sides of the Supreme Court are different and the CPIO is not the monitoring authority on implementation of the law laid down by the Court."

When the appeal was heard by the CIC, it asked the CPIO "Whether a Court can be held to be an officer u/s.5(4) of the RTI Act, from whom assistance can be sought to answer an application under the RTI Act." The CPIO replied that a Court is a judicial authority and cannot be equated with an officer.

The CIC held that the distinction between the Judicial and Administrative sides has no relevance to this case and no such distinction is made u/s.2(f) of the Act (which defines the word ‘information’) between different forms of information.

The CIC also held that an officer and a Court are identical. The CIC quoted from corpus juris secondum as under :

"A Court cannot exist without a Judge, and the power to create a Court embraces the power to create the office of Judge thereof. A Court cannot be established until it has Judge, and unless the things required by the Constitution for the existence of a Court concur, the Court cannot exist. The power to create a Court ordinarily implies the power to create the office of Judge thereof and to confer jurisdiction."

The CIC further held that a Court or indeed a Judge, even while sitting as presiding officer in a Court, cannot be deemed an officer from whom information may be sought u/s.5(4).

RTI in Jammu and Kashmir :

One Mr. R. C. Pandita applied under the RTI Act for information from the President of India about his complaint for certain matter connected with J&K State, describing that State as the most corrupt State in India.

He did not get any reply from the PIO in the President’s Office. He then made the complaint to the CIC. In defense, the PIO wrote to the CIC :

"It is submitted that the letter dated nil from Shri Pandita seeking information was received in Rashtrapati Bhavan, but due to clerical error the same was put on file without realising that the said letter was in pursuance of the RTI Act and the need for urgency. It may be appreciated that the Act being new, the lower-level staff is yet not completely sensitised to the urgency needed while dealing with applications under this Act. The said clerical error occurred since the earlier letter dated nil from Shri Pandita addressed to the President of India has already been sent to the concerned State Government of J&K for appropriate attention. It is in this background that without realising that the second letter from Shri Pandita was under the RTI Act, 2005 seeking information from Rashtrapati Bhavan that the same was filed by the concerned person due to a clerical error. The error in this regard is highly regretted."

In the decision of the CIC, it noted :

"CPIO Shri Nitin Wakankar of the President’s Secretariat has admitted the delay in either replying to the application or forwarding the application u/s.6(3) and ascribed this to a clerical error. Whereas this can be accepted as reasonable cause for the CPIO’s defence, the staff dealing with the issue is in clear default u/s.5(5). The CPIO is therefore directed to enquire into the failure, fix responsibility and initiate action u/s.20(2) of the Act against the delinquent, under intimation to us within twenty working days of the issue of this Decision Notice. President’s Secretariat is advised to exercise maximum caution in ensuring timely disposal of the applications under this Act in every case."

From the above, it is observed that even the President of India’s administration is not vigilant in respect of RTI matters.

Appointment of Foreign Secretary :

Normally, decisions of the Central Information Commission are short and the appeals/complaints are heard and decided by one (of the five) Information Commissioner. In April issue, I had reported the appeal before Maharashtra State Information Commission, which was heard & decided by 4 information commissioners including the Chief Information Commissioner.

Recently (on 7-5-2007), the Central Information Commission has decided an appeal furnished by Ms. Veena Sikri, which is heard by two Information Commissioners (one of them the Chief Information Commissioner) and the decision is unusually long, running into 15 pages.

Ms. Veena Sikri had sought from PIOs of P.M. Office, Ministry of External Affairs (MEA) and Cabinet Secretariat inspection of various files connected to the process and final selection of Shri S. Menon as Foreign Secretary, including files containing various other materials related to this selection and list of all files in which it is noted how Mr. Menon was found more suitable and how others were found unsuitable or less suitable than him.

The CPIO at PMO replied that the information sought is exempted from disclosure u/s.8(1)(e) and u/s.8(1)(j) of the RTI Act and transferred request for one file to the CPIO of the Ministry of Personnel, Public Grievances and Pension u/s.6(3) of the RTI Act. The CPIO at MEA also transferred the application u/s.6(3) to the above ministry. The CPIO of Cabinet Secretariat also transferred the matter partly to different PIOs and on some points denied the information u/s.8(1)(i) and u/s.8(1)(j) of the RTI Act.

First appeals to three Appellate Authorities failed.

It may be noted that Ms. Veena Sikri has a distinguished record of service and is senior to Shri S. Menon.

In her appeal to the CIC, she had not only asked to get inspection, but also asked the CIC to direct concerned public authorities to compensate her for the loss and detriment she has suffered, both in her career as well as personally, through the mental anguish and ignominy she has had to undergo.

She also requested that on defaulting officers appropriate penalties be imposed u/s.19(8)(c) and u/s.20(1) of the RTI Act.

It was her contention that the appointment of the Foreign Secretary, who is the administrative head of the Ministry of Foreign Affairs and a key interlocutor in India’s interaction with foreign countries, is unquestionably a matter in the larger public interest. Public interest demands that the appointment of Shri S. Menon as Foreign Secretary should have been done in a transparent, unbiased and just manner, without gender discrimination.

She further contended that by no stretch of imagination the information sought can be exempted from disclosure u/s.8(1)(e) or (j) or u/s.8(1)(i).

Several arguments were put forward by both the sides. Finally, the CIC after elaborate reasoning on all issues and after relying on the observation of Hon’ble Justice Bhagwati in one case and the decision in CIC/WB/A/2006/00460, decided the issues and held :

· There is no doubt that information collated during the selection may include some personal information, the disclosure of which may cause invasion of privacy of other individuals who have not been eventually selected. Moreover, these individuals are not party to the present appeal. The Government can, in that case, allow access to information as requested by the appellant by providing access to that part of the record which does not contain any information which is exempt from disclosure under the Act and which can be reasonably severed from any part that contains exempt information, in due accordance with S. 10 of the Act. Information which concerns other individuals cannot be subjected to disclosure. On the other hand, it is for the concerned competent authority to still allow access to this information, if it were satisfied that the larger public interest justified disclosure of such information. But in this case, the competent authority had clearly decided otherwise. The Commission, therefore, has a duty to see whether disclosure is possible without causing unwarranted invasion of privacy of other candidates who were considered and not selected, and if so, whether such disclosure will necessitate application of procedure prescribed u/s.11(1) as the information may concern third parties. In view of this and in light of the ruling of the Apex Court cited earlier, the Commission will examine the file and accordingly, we call upon the concerned public authority, which in this case is the Cabinet Secretariat, to produce all relevant documents from the initiation to the culmination of the process of appointment of Foreign Secretary Shri S. Menon, so as to enable this Commission to satisfy itself as to whether it is possible to disclose the information without causing any unwarranted invasion of the privacy of other individuals, and if so, whether it is necessary to follow the procedure prescribed u/s.11(1) of the Act in this case. The documents shall be brought by a senior officer, deputed by the Public Authority in a sealed cover on 17th May, 2007 at 10.30 AM and shall be taken back in resealed cover by the same officer after they have been perused by the Commission.

· MEA will allow inspection of the file relating to promotion of Foreign Secretary as held by that public authority, within fifteen days from the date of issue of this Decision Notice. In doing so, the CPIO may keep in mind provisions of S. 10, and if the disclosure of information pertains to any other person/persons who could be regarded as third parties, it will follow the procedure as prescribed u/s.11(1) of the RTI Act.

· The appellant in this case has prayed for award of compensation for the loss and detriment that she has suffered both in her career as well as personally. The appellant has also prayed for imposition of appropriate penalty on the defaulting officers. We have examined these issues also and we find that the Public Authorities in this case have responded to the appellant within the time frames mandated u/s.7(1), and as such any suffering perceived or otherwise cannot be attributed to the present proceedings under the Right to Information Act. The appellant has moved similar RTI applications before four Public Authorities and each of them have responded in regard to the matter concerning them in the manner that they have considered mandated by the law. No further action u/s.10(1) of the RTI Act is warranted.

· The CIC also decided few other issues which were raised.

[As this is a very important and interesting decision, full text is posted on BCAS website www.bcasonline.org for everyone’s reading.]

The RTI Act :

To continue the study . . . . . .

S. 25 : Under this Section, both the Central Information Commission (CIC) and State Information Commission (SIC), as soon as practic-able after the end of each year, are required to prepare an annual report on the implementation of the provisions of the RTI Act and forward a copy thereof to the appropriate Government.

Further, each ministry or department is required to collect and provide the information in relation to the public authorities within their jurisdiction to the CIC/SIC.

Each report shall state (a) the number of requests made to each public authority (b) the number of decisions where applicants were denied the information under the provisions the RTI Act (c) the number of appeals made to the CIC/SIC on their decisions and outcome thereof (d) particulars of any disciplinary action taken against any officer in respect of the administration of this Act (e) the amount of charges collected by each public authority under this Act (f) any facts which indicate an effort by the public authorities to administer and implement the spirit and intention of this Act (g) recommendations for reform, including recom-mendations 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 operationalising the right to access information.

Reports of the CIC and SICs are required to be laid before each House of Parliament/House(s) of the State Legislature, respectively.

The Section also provides that if CIC/SICs are of the opinion that the practice of any public authority in relation to the exercise of its functions under the RTI Act does not conform with the provisions or spirit of the Act, it may give to the authority a recommendation specifying the steps which ought to be taken for promoting such conformity.

From the above, it will be observed that S. 25 is an excellent Section and if responsibilities cast on the CIC, SICs and various ministries and departments like the CBDT are carried out sincerely, the RTI can shine out as great piece of legislation for enhancing democratic values and enhancing citizens’ participation and benefits.

The Right to Information Act became operational with effect from 12th October 2005, 19 months are over. I assume the word ‘year’ in the Section means calendar year. No report, it appears, is laid in the Parliament or State Legislature for 2005 (part of the year) or for 2006. RTI National Convention was held on completion of one year (365 days) i.e., 12-10-2005 to 11-10-2006. If the year has to so mean, no report for such year is laid. It is understood that some annual report of the CIC is ready and is submitted to the Government, but not made public. Hopefully in this feature, next month I shall report the status as I have made an application for this information to the CIC’s PIO and shall get the information within 30 days.

Other News :

· Pending appeals, etc. at Central Information Commission :

It is sad to note that the CIC’s office is not able to cope up with the large number of appeals/complaints being filed with the Commission. It is reported that as on 30-4-2007, 3516 appeals are yet to be disposed of. With monthly disposal of 300 to 550 per month, at least it takes more than 6 months before the appeals/complaint filed is disposed of. What is observed and which is disturbing is that month after month pendency is increasing from 1592 in September 2006 to 3516 in April 2007 with inflow of appeals/complaints (783 in March 2007) exceeding the same disposed of (335 in March 2007) every month.

· Government-sponsored advertisements :

In reply to a question under RTI application on how much money was spent on various government-sponsored advertisements in print and electronic media and how much of this amount was spent to spread the message of Netaji, the DAVP replied : "During the period from April 1, 2006 to March 23, 2007, the DAVP has issued display advertisements to various newspapers worth Rs.1096 lakh and an amount of Rs.100 crore was spent on the electronic media. No advertisement was released by the DAVP on January 23 this year to spread the message of Netaji Subhash Chandra Bose. However, telecast of 60 seconds was done free of cost by the Doordarshan News."

· RTI Act and Maharashtra State :

Maharashtra State has recorded the highest number of interventions under Right to Information Act in 2006. "Efforts of activists like Anna Hazare and Shailesh Gandhi coupled with media support have evoked a phenomenally high response from people of Maharashtra as compared to other States," said S. V. Joshi, State Chief Information Commissioner. From the day the RTI Act was implemented, i.e., 12th October 2005 till December 31, 2006, 123577 applications have been received. Of these, 113081 have been provided with the sought information. Andhra Pradesh, which implemented the RTI Act at the same time, received 8,864 queries, of which 7,574 have been cleared.

Of the 33 departments in the State, maximum applications have been for the Urban Development Department (23,552), followed by Revenue (17,629), Rural Development (11,921), Housing (8,801), Home (8,236), Industries, Energy and Labour (7,501), Cooperation (6,692).

r2i in action :

This feature every month has been having 3 parts : Digest of some CIC’s decisions, study of the RTI Act and other news. From this month, one more part is being added as titled above. On behalf of BCAS Foundation, I shall be making applications to various public authorities connected with our profession and same with information received shall be reported here. If you desire to seek any information, please contact us.

As desired by one past president of BCAS, in March 2007 an application was made to the PIO in the Office of the Comptroller and Auditor General of India seeking certain information. Email was received in early April that there has been some delay in getting information compiled and shall be sent soon. Finally, it came on 3-5-2007 as reproduced hereinafter. I had also asked for a copy of ‘Auditing Standards’. In reply I was asked to remit Rs.70 for it. I responded as under :

You have asked me to remit Rs.70 for ‘Auditing Standard 2nd Edition - 2002’. I have no objection in sending the same as it’s a very small sum. However, for putting on record I draw your attention to S. 7 of the RTI Act 2005, Ss.(6) thereof reads as under :

"Notwithstanding anything contained in Ss.(1), the person making request for the information shall be provided the information free of charge where a public authority fails to comply with the time limits specified in Ss.(1)."

As you have provided the information requested by me beyond the time limits (30 days), the copy should be supplied free of charge. Please let me know your reaction. If you still desire me to send Rs.70, I shall do so.

Reply then was received :

"I am sending a copy of the Auditing Standards by Speed Post. You may receive it in a day or so. The delay had occurred due to some reorganisation in our office."

The copy of the said ‘Auditing Standards’ is placed in BCAS Library, members can read it. If the copy is required, the same also shall be provided.

We have now sought certain information from the CBDT by making two applications in April. The same shall be reported in the next issue.

BCAS Foundation has published a booklet :

Right to Information

— A route to good Governance.

You may collect the copy from BCAS office, if interested. Booklet is free, but you may pay any amount you wish to. Your contribution will be accepted with appreciation.

Annexure-I

Overassessment from 1-4-2005 to 31-12-2006

Sr. No.	Name of assessee	Charge	T.E. (Rs. in lakhs)	Subject
1	Mashreqbank	CIT III	621.23	Incorrect computation of income.
2	IDBI	CIT III	383.45	Avoidable mistake in computation of income and tax
3	Citibank	DIT (IT)	200.58	Overcharge of tax
4	Millennium Carbopnium Ltd.	VIII	61.46	Overassessment
5	Hotel Corporation of India Ltd.	CIT VIII	2422.2	Avoidable mistake in computation
6	Nuclear Power Corporation Ind. Ltd.	CIT III	290.77	Incorrect levy of interest u/s. 234D.
7	Millennium Carbonium Ltd.	CIT VIII	61.48	Overassessment
8	Hamco (I) Ltd.	CIT VIII	95.45	Overassessment
9	Alaknanda Stainless Steel	CIT III	58.16	Overassessment
10	Zee MGM Ltd.	DIT (IT)	53.69	Overassessment

Annexure-II — Top ten cases of underassessment

Sr. No.	Cycle	Name of assessee	A.Y.	CIT	T.E. (Rs. in lakhs)	Subject
1	45	State Bank of India	2003-04	II Mumbai	55952.50	Incorrect computation of business income
2	45	State Bank of India	2004-05	II Mumbai	47500.90	Incorrect computation of business income
3	44	Reliance Industries	2002-03	III Mumbai	37617.00	Incorrect set-off of losses
4	45	Reliance Industries	2005-06	III Mumbai	25370.20	Short levy of tax due to lacunae in the provisions of the Act
5	45	Reliance Industries	2003-04	III Mumbai	24558.50	Incorrect claim of deduction u/s 801A/1B
6	45	State Bank of India	2003-04	II Mumbai	15605.00	Incorrect computation of business income
7	45	ICICI Bank Ltd.	2002-03	III Mumbai	14827.90	Incorrect computation of business income
8	45	State Bank of India	2003-04	II Mumbai	11286.00	Non-assessment of interest income
9	45	Reliance Telecom Ltd.	2003-04	III Mumbai	8569.42	Incorrect computation of business income
10	45	LIC Hsg. Finance Ltd.	2004-05	II Mumbai	6482.25	Incorrect computation of business income

Parawise information

Sr. No.	Information called for	Details
B1.	In the year ended 31-3-2006 and 9 months ended 31-12-2006, the number of cases selected for audit of the income-tax assessments in the city of Mumbai	Number of cases selected for audit 2005-06 73,957 April 2006 to December 2006 53,497
2.	Out of the above number audited, in how many cases, the office of CAG found overassessment and similarly in how many cases under-assessment ?	Over- Under- assessment assessment number number 2005-06 4 2321 Up to 31-12-2006 9 1582
3.	Please inform what steps have been taken by CAG to monitor compliance of its finding i.e., action taken by the assessing officers to reassess the income higher or lower to as originally assessed.	Objections are regularly pursued with Department after local audit reports are issued. Meetings with Department are held to discuss on pending objections and outstanding issues.
4.	What is the time on an average the Income-tax Department takes to give effect to CAG findings ?	According to departmental instructions, observations of statutory audit are to be replied within a period of 6 weeks. Period of settlement differs from case to case.
5.	What action is taken by CAG where either there is inordinate delay in taking action, or no action is taken at all and the finding of CAG is rejected ?	The matter will be taken up with the Ministry by Hqrs. Office. In case no action is taken, matter will be reported in Audit Report which will be placed before the Parliament.
B2.	Top ten cases in which underassessment was found, and top ten cases in which overassessment was found with amount and nature thereof. If the names of the cases can be disclosed, please provide the same also.	Annexure 1 and 2 are enclosed.
B3.	Is there any report presented to the Parliament on CAG’s action, regarding the audit of income-tax asses-sment cases in the year ended 31-3-2006 ? If yes, please supply the copy thereof. Necessary charges will be paid.	Audit Report of 2007 (for the year ended March 2006) is yet to be placed before the Parliament.