RIGHT TO INFORMATION (r2i)

 

 

For BCAJ, October, 2016

 

 

PART   A:

DECISION of Supreme Court

 

·        CBSE asked to provided answer sheets and scrupulously observe the directions of Supreme Court in C.A. No. 6454 of 2011


Even after the historic 2011 judgment of the Supreme Court, where procuring copies of answer sheets by students came under the Right to Information (RTI) Act, the Central Board of Secondary Education (CBSE) continued to defy it. In a reply to a RTI query, posed by Whistle for Public Interest (WHIP), comprising of a group of law students, the CBSE replied on 28 December 2015, that, it charges Rs700 per subject for providing copy of answer sheets. In addition, students were compulsorily required to go through the process of ‘Verification of Marks’ for which the CBSE has prescribed fee of Rs.300 per subject. This meant that a student had to pay Rs1,000 per subject, if she applied for a copy of the answer sheet.

This was in gross violation of the SC order of 2011, which held that “Answer-Sheet is an Information and therefore, examinees shall have the right to inspect their Answer-Sheets under RTI Act, 2005 and its Rules made there under which prescribes Rs10 as application fee for getting the information and Rs2 per page for the copies of such information.” 

 

The Supreme Court directed the CBSE to “scrupulously observe” the directions made by the Court in 2011. The CBSE has been asked to provide evaluated answer-sheets to candidates under RTI Act in compliance with the Supreme Court’s Ruling in the matter of CBSE & Anr. Vs. Aditya Bandopadhyay & Ors – Civil Appeal No. 6454/2011.

 

All the state run institutions falling under the meaning of Public Authority defined under section 2(h) of the RTI Act are also obliged to provide answer-sheets under this transparency law. 

 

 

PART B:     

RTI ACT, 2005

 

·        Real time updates for Right to Information cases via email, SMS 

 

The Central Information Commission (CIC) has taken an e-leap and would function like an e-court with all its case files moving digitally and the applicant being alerted about case hearings through an SMS and email. So now one can get real time updates while filing a complaint or appeal under Right to Information (RTI) Act. 

Starting mid of September 2016, CIC would move to a new software, which would make the hearings faster and more convenient. As soon as an RTI applicant files an appeal or a complaint, he would be given a registration number and would get an alert on email and mobile phone about his case. The case would then be electronically transferred immediately to the concerned information commissioner's registry electronically.
 

All this would be done within hours. At present, the process takes a few days.
 

The new system would also alert the RTI applicant about the date of hearing. An automatic SMS and email would be generated. Apart from this, the applicant would get an email in advance listing out the records given by him to CIC and the government's submissions in his case. A senior CIC official told ET, "At present, the appellant and the ministry sometimes appear in the case without knowing what the submissions are. So this would help both sides in preparing for the case."
 

The Commission would be able to expedite the processing of applications with the new software. At present, it also has to deal with complaints of loss of case files and non registration of cases. The facility would not only benefit the appellants but also information commissioners.
 

When a commissioner would open a case file on his computer, he would get a ready background of the specific case and also details about the appellant. The official said, "We would know if he has more appeals pending. This could facilitate hearing of multiple appeals of the same person on a given day. It would directly impact pendency as more cases would be disposed in a day." CIC has already scanned 1.5 lakh files and converted them into electronic files.
 


(Source : Economic Times, September 05, 2016)

 

 

PART   :  C

INFORMATION ON & AROUND

 

·        Maharashtra Information Commission: Quick turnaround

 

Maharashtra’s information commission has set a blistering pace to tackle pending backlog, with a top official clearing a staggering 6,000 cases last year Anyone else would have thrown up their hands in despair on seeing over seven lakh right to information (RTI) applications at Maharashtra’s exceedingly busy information commission, but not the panel’s chief Ratnakar Gaikwad who took up the challenge and ensured that the cases were expedited. Ratnakar Gaikwad, the 64-year-old former Maharashtra chief secretary and IAS officer of 1975 batch, inherited a backlog of 4,074 cases of three years when he was named state chief information commissioner (CIC) in 2012. Within a month of joining, the bureaucrat came up with an ingenious solution – templates that helped speed up work. Gaikwad prepared 120 templates that fit a majority of the cases. It broadly covered certain legal provisions, and similar types of cases in which the facts are the same but the information may be different

 

·        RTI appeals pendency up 96 per cent in Pune as SIC shuttles between the city and Nashik

 

Of the seven SIC benches in the state, the ones in Nashik, Aurangabad and Amravati have been lying vacant

Over the last few months, pendency of second appeals with the Pune bench of the State Information Commissionerate has seen a whopping 96 per cent rise. With 8,294 second appeals pending before it as of July 2016, the Pune bench has the second highest pendency in the state, the first being Amravati SIC bench having 8,340 appeals pending before it.

The SIC benches are practically the last stage of appeals for information seekers under the Right to Information (RTI) Act, 2005. Second appeals are filed after the information seeker has exhausted all efforts to obtain information with government offices. SICs have the power to fine/summon and order for information to be provided to the applicant.

At present, Maharashtra has seven SIC benches. State’s chief information commissioner Ratnakar Gaikwad is based in Mumbai.

 

·        Maharshtra government: Public Information Officers can’t answer RTIs seeking information on them

 

The onus of taking decisions about such applications has now been given to the public authorities or other public information officers (PIOs) and appellate authorities (AA).

In a move to address the long standing complaints of Right to Information (RTI) users, the state government has issued a circular which has now debarred public information officers (PIOs) and appellate authorities (AA) from hearing or taking decisions on RTI applications which seek personal information about them. The responsibility of taking decisions about such applications has now been given to the public authorities or other PIOs/AAs.

PIOS and AA are designated by the RTI Act to take decisions about the application requests from information seekers. In case of information related to PIO or AA, the decision is taken by those officials themselves. RTI activists had pointed out how this was in contravention to the set norms of jurisprudence. Judges are often known to refuse hearing of cases if they feel there would be a conflict of interest in them — “Not before me” — is the commonly used term in such cases.

PART   :  D

ETHICS, GOVERNANCE & ACCOUNTABILITY

The recent notification issued by the General Administrative Department (GAD) of the state government, other than barring the PIOS/AAs from hearing such applications, have issued several other directives. Such applications are to be duly registered and separate records should be kept of them. As mentioned above, the new notification has mandated that such applications would be heard by the public authority (this usually is the head of the establishment) or other PIOs/AAs.

 

(Source : News articles from Indian Express)

 

 

Judicial Transperancy

 

‘Open letter to Chief Justice Thakur: The latest call for judicial transparency must not be ignored’

 

Former Central Information Commissioner Shailesh Gandhi asks why the judiciary is loath to implement the Right to Information Act.

 

Dear Sir,

I am writing this letter in the spirit of seeking an improvement in the working of the judiciary, and not as an exercise in criticism. India has not been able to deliver the fruits of democracy as per the aspirations of its people. I would submit that the responsibility lies with all the four estates – legislature, executive, judiciary and the press – as well as the citizens. One of the attributes on which we have been weak, is in recognising the citizen’s right to information. Despite Parliament passing a Right To Information Act, which rates among the best five laws as far its provisions are concerned, our global rank in implementing it is a poor 66.

 

It is well recognised that the first clarion call for transparency was given by Justice Mathew who wrote:

“The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. Their right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary when secrecy is claimed for transactions which can at any rate have no repercussion on public security”.

— (State of UP vs Raj Narain, 1975.)

 

The only restrictions on this fundamental right under Article 19(1)(a) permitted by the Constitution are those specified in Article 19(2). The exemptions in the Right To Information Act cover all of these. Yet the performance of all three estates in implementation has not been very good. There was a hope that the judiciary with its pronouncements on Right to Information would be a role model and enforcer of this right. This hope has been belied. There are various instances that can be highlighted. Here are two:

  1. The rules for Right to Information framed by many courts are not in consonance with the Right to Information Act. In fact, the Bombay High Court did not even frame the rules for a year, and some courts have exemptions not in the law. Some high courts have kept Rs 500 as the application fee, while most other competent authorities charge Rs 10. 
  2. The Supreme Court Public Information Officer challenged an order of the Central Information Commission in the High Court, and despite it being dismissed by a division bench it has been stayed by the Supreme Court. The Supreme Court has not heard this matter since 2010. 
  3.  

As Aniket Aga wrote in The Wire:

“While the government often comes under fire for not effectively implementing the RTI Act, few have noticed that India’s highest court violates the Act routinely, and with an impunity that makes the government’s evasion of the RTI Act seem benign.”

 

This is also evident in the way the court refuses to share information about the process of appointments and the reasoning behind it. Charges and complaints against judges are not shared with citizens, nor are the results of investigations. Lack of transparency and accountability are justified on the grounds of maintaining the independence of the judiciary. The little man – the citizen – is considered immature by the powerful to monitor them. Ills that afflict the other pillars of democracy are likely to be present in the judiciary as well. The best safeguard and disinfectant is transparency, and the demand for accountability that follows.

 

Justice Chelameswar has very boldly raised the issue of lack of transparency in the judiciary, and the nation is grateful to him. Please do not try to “sort it out”. You must take this opportunity to bring accountability and better governance to the nation. There is an urgent need to ensure that all judicial vacancies are filled by a proper, transparent process so that the faith of people in our democracy is restored. It is impossible that the judges can by themselves spare adequate time to select the new judges with proper diligence. You must be aware that the increase in backlog of cases is around 1.5% each year, whereas the vacancies in the judiciary are over 20%. This is the cause for pendencies. A proper process with adequate resource must do this job.

 

Please recognise Justice Chelameswar’s contribution to our democracy, take this opportunity to bring transparency to the judiciary and accept that mistakes may be made in all fields. A democracy providing an equitable and fair nation will evolve, not by having infallible public servants, but by devising institutional mechanisms that will correct the foibles of men.

 

We have lost the balance of the checks and balances designed by our Constitution. I beseech you sir, for the sake of our nation let us restore it with your authority and wisdom.

 

Yours truly

 

Shailesh Gandhi