right to information (r2i)
part A I decision of supreme court
· Details Of Marks In Civil Service Examination Can’t Be Disclosed Mechanically Under RTI
Setting aside the five-year-old Delhi high court ruling, the Supreme Court has said that raw and scaled marks of civil services examinations cannot be disclosed under RTI. However, if the court finds that in a particular case the information needs to be furnished in public interest, it is entitled to do so.
A bench of Justices Adarsh K. Goel and Uday U. Lalit noted that disclosure of marks could have some severe negative impact on the evaluation process and not only the prestige, but the very integrity of the system could be compromised.
"Weighing the need for transparency and accountability on the one hand and requirement of optimum use of fiscal resources and confidentiality of sensitive information on the other, we are of the view that information sought with regard to marks in Civil Services Exam cannot be directed to be furnished mechanically," held the bench.
It underscored the difficulties expressed by the UPSC that disclosure could lead to unnecessary resentment, litigation and revealing the identity of evaluators, thereby putting in peril the integrity of the process and inviting hordes of litigation. "Situation of exams of other academic bodies may stand on different footing. Furnishing raw marks will cause problems as pleaded by the UPSC as quoted above which will not be in public interest," held the Court.
The bench, however, added that if a case is made out where the Court finds that public interest requires furnishing of information, the Court is certainly entitled to do so.
"If rules or practice so require, certainly such rule or practice can be enforced. In the present case, direction has been issued without considering these parameters," maintained the bench, rejecting the view taken by the High Court.
It highlighted that while balancing the right to information, public interest including efficient working of the government, optimum use of fiscal resources and preservation of confidentiality of sensitive information has to be balanced and can be a guiding factor. "The High Court has not applied the said parameters," held the top court.
part B Irti act, 2005
People’s RTI versus State’s Aadhaar
Right to Information (RTI) is people’s right ever since Evidence Act was passed in 1872 as its sections 74 and 76 provided access to public records on payment of copying charges. This right was constitutionalised in 1950 under Article 19(1)(a) and then legally facilitated in 2005 through Right to Information Act. While right to vote made India democratic with equal chance of exercising its choice of governors, the RTI took a step forward to empower the citizen with information. If liberty of thought is basis for expression right which included right to vote, the right to information formed foundation for free speech. People have right to know and right to information from the government. The Aadhaar Act, 2016 is exactly in juxtaposition to the RTI Act, as that gives ‘authority of Government to secure the information of the people. Interestingly, the privacy holds these two Acts in two hands in opposite directions. While the RTI of the people about state is denied practically by the public information officers (PIOs) of public authorities on the wrongful claim of privacy, the state’s Aadhaar law and scheme has every danger of invading the privacy of the citizen.
Misuse of Privacy clauses
With rigid mind set of babus and their agents to defy RTI Act supported by a few anti-transparency orders of judiciary, the privacy is being used as an excuse to block the information flow to people, whereas, the ‘state’ through UIDAI is sucking the demographic and biometric information of the people through high power-houses and bore wells.
Aristotle said man is a social animal. His social life demands sharing of information not hiding, except some core family related information. Marriage, social association with people and man’s relationship with the state, makes his information ‘public’ and the information of public servant, mostly should be in public domain. The balance of protecting privacy and need to publish public servant’s information related to public affairs is prescribed in RTI Act through ‘public interest’ clauses. The Supreme Court upheld this balance in its historic privacy judgment in August 2017.
Official Secret: an oxymoron
Official Secret is a self-contradiction by itself. It could be even an oxymoron. If it is official how that could be personal or secret? We still are being ruled by British legacy of Official Secrets Act 1923, which leaders of Independence movement demanded to be repealed. Right to Information in theory overrides the OS Act. But enough scope was created in the exceptions for survival of Official Secrets. Official secrecy survives the RTI!
The law in general provided for presumption of civil death. If a man is unheard of for seven years, law presumes him to be dead, which of course can be rebutted by his existence. Secondly when a man converts into a different religion, he suffers civil death as far as his original religious group is concerned and the wife gets a right to relinquish him. The third way of civil death presumption is when a person renounces the world. Now the Aadhaar Act adds a fourth dimension to presumption of civil death, i.e., a person devoid of Aadhaar will be denied all benefits, pension, account, certification etc. If the crematorium wants Aadhaar before a dead body is allowed inside, or darshan of Lord Venkateshwara in Tirupati mandates the furnishing of Aadhaar number, or if someone wants to recommend some eminent person for Padmashri award, should necessarily quote Aadhaar, is that in consistent with the Constitutionally guaranteed freedoms?
Aadhaar in Sanskrit, Hindi and Telugu means the basis or lifeline. Niraadhaar means devoid of lifeline. Now, Aadhaar is a 12-digit number called the unique identification (UID) number that is assigned to all residents. This program is called the world's largest biometric ID system, with over 119 crore enrolled members as of 30 Nov. 2017. Fear of becoming Niraadhaar was spread and enrolment touched 98 per cent. Current population of India is 135 crore and 16 crore are yet to be enrolled. It is reported that 9 crore were excluded for reasons not explained. Then, what is the fate of these 25 crore residents? Without Aadhaar, do they suffer civil death? Can any duly elected government exclude 25 crore of its population from welfare schemes simply because Unique Identification Authority of India (UIDAI) failed to enrol them?
The Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 made it mandatory for UIDAI to assign Aadhaar, but in practice it is mandatory for citizens to enroll for Aadhaar number. As Aadhaar has been linked with every aspect of social life, lack of it means denial of that ‘social life’. It raises a doubt: are they not included in ‘we the people of India…” or excluded from application of right to life in Article 21's or Article 14’s right to equality? Will they be considered to be living, at least? They have right to life, but do they survive, without pension or ration card?
The issue involved is more serious than right to privacy; it is an issue of dignity, too. The basic right to life of people has to be decided by the Supreme Court. Though Aadhaar Act apparently, did not make it compulsory for citizen, the citizen has no choice to be out of it, as that means no access to social life, and once enrolled, no scope of opting out of it.
The flaw of the law is that there is no alternative to Aadhaar, and if UIDAI denies the enrolment for any reason, it amounts to denial of living resources for him. For any reason if citizen does not enroll, or Aadhaar is denied, or cancelled after enrolled by UIDAI, that citizen does not have any means of existence and no remedy at all. Aadhaar Act did not provide a remedy for wrongful denial of Aadhaar card. The bench waited for the decision on right to privacy and the Supreme Court emphatically declared it as fundamental right and advised the Centre to pass a law. Till today, the centre did not enact any law on privacy and data protection. Is it possible to decide constitutionality of Aadhaar without having such a law?
What this number means?
Aadhaar neither confers citizenship nor guarantees any rights, benefits, or entitlements nor aims to replace any existing identity cards. Aadhaar is a random number, not loaded with profiling or intelligence into identity numbers that makes it insusceptible to fraud, theft and provides privacy in such perspective. The state and state bodies declared that it qualifies as a valid ID while availing various government services, like an LPG connection or subsidised ration or kerosene from PDS or benefits under NSAP or pension schemes, e-sign, digital locker, besides being a Universal Account Number (UAN) under EPFO and also for some other services, like a SIM card or opening a bank account or securing a caste certificate. The Centre has declared that Aadhaar card will be mandatory for opening new bank accounts and for transactions above Rs. 50,000. All existing account holders will also have to submit their Aadhaar details by December 31, 2017, failing which accounts will be deemed invalid. A five judge bench on December 15, 2017 agreed to the Central government's decision to extend the deadline of linking of "everything", including mobile phones and bank accounts, to Aadhaar card till March 31, 2018. But SC also ordered that an Aadhaar card holder opening a new bank account will have to furnish his Aadhaar card to the bank.
SC orders vs. Centre’s orders
The Supreme Court issued a series of interim orders on various writ petitions challenging the mandatory linking of government schemes with Aadhaar. On 23rd September 2013, the Court issued an interim order saying that "no person should suffer for not getting Aadhaar" as the government cannot deny a service to a resident if she/he does not possess Aadhaar, as it is voluntary and not mandatory. On 11th August 2015, it ruled "UIDAI/Aadhaar will not be used for any other purposes except PDS, kerosene and LPG distribution system". This was later amended to include Mahatma Gandhi National Rural Employment Guarantee Scheme, all types of pension schemes, employee provident fund and the Prime Minister Jan Dhan Yojana, and made it clear that even for availing these facilities Aadhaar card will not be mandatory.
On 27th March 2017, the Apex Court affirmed that Aadhaar cannot be mandatory for availing benefits under
welfare schemes, though it can be mandatory for other purposes (such as income
tax filings, and bank accounts). On 9th June 2017, it partially read
down Section 139AA of the Income-tax Act that mandated an individual to link
their Aadhaar for filing their Income Tax Returns
(ITR). On 11th August 2015, the Supreme Court had directed the
government to widely publicise in print and
electronic media that Aadhaar is not mandatory for any welfare scheme.
The government went on issuing orders extending UID mandatory for several government services. It was ordered that Aadhaar number of the applicant shall be required to be mentioned compulsorily in the application form for SC/ST, OBC, domicile, income, birth, death, surviving member, solvency, nationality certificates. In December 2012, some more orders were issued to include: registration of marriages under Hindu Marriage Act and Special Marriage Act, solemnisation of marriages and registration of various documents in the sub registrar offices. People without Aadhaar number cannot get any of these certificates, which decides their life, education and career.
Attorney General of India, Mukul Rohatgi on 2nd May 2017 made certain sweeping statements before the Supreme Court: “There is no absolute right over the body…. The right not to have bodily intrusion is not absolute,” … “and the life of a person can also be taken away by following a due procedure of law….There is nothing absolute in them. From the cradle to the grave, we are in a contractual relationship with the state. We don’t live in a vacuum….If you don’t want to part with anything in return for state protection and services, go and live in the Himalayas…..
In the world the only way is to digitise iris and fingerprints kept for posterity. There is no other way… In a social contract, you have no right to be invisible. Forcible taking of fingerprints is not self-incrimination. The Court said that 50 years ago, we will go to DNA next.”
The Supreme Court has to decide the ‘legality’ of the AGIs statements, which might have severe impact on fundamental rights of the people.
No right to complain
When Aadhaar Act 2016 mandates enrolling, it should have a remedy against refusal to enrol, removal from enrolment, and non-enrolment. Surprisingly, an individual cannot even complain under this law. UIDAI alone was given authority to complain. “Courts cannot take cognisance of any offence punishable under the Act, unless a complaint is made by the UID authority, or a person authorised by it.” This may present a conflict of interest as under the Act, the UID authority is responsible for the security and confidentiality of identity information and authentication of records. The Act does not have any provision to deal with when members or employees of the UID authority are responsible for a security breach, and where the authority refuses to enrol or it fails to enrol due to technical error.
Non-verification of residence
The law that was passed in 2016 says only a resident (having 182 days of residence in preceding year) can be enrolled. The enrolment started long ago after UIDAI was established in 2009, when there was neither law, nor a feasibility report, and without verification of ‘residence’ criterion. Can the 2016 Act validate retrospectively the enrolment without any evidence of residence?
A plethora of writs were filed raising basic issues—do we have fundamental right to privacy? If so, whether mandatory sharing of personal and biometric information for Aadhaar would violate it? First question was answered in affirmative creating a Constitutional jurisprudence by nine-judge member bench of Supreme Court on
24th August 2017. The Constitutional Bench of SC is hearing of bunch of petitions to examine validity of Aadhaar Act and mandatory linking. The Court has to consider many vital issues like privacy, surveillance, exclusion from welfare benefits. There is merit in criticism that despite the interim orders of apex court, the government went on coercing the people to enrol, by creating a fear that they might get isolated and excluded from social life. Anxiety of disassociation was looming large among all sections of the people. They feared that without Aadhaar they will be Niraadhaar— loosing the earth under their feet, rather the civil death!
In Goa, on request from Central Bureau of Investigation (CBI), a local court directed UIDAI to share fingerprint database to compare and find the culprit in the rape of a school girl. UIADI appealed to High Court, which ordered forensic lab to study the technological capability of such a huge exercise. It reached Supreme Court, wherein UIDAI contended that false positive chance will be too high and sharing is undesirable. The SC, on 24th March 2014, restrained Central government and UIDAI from sharing data with any third party or agency whether government or private, without the consent of the Aadhaar-holder in writing. This is a significant order. On 16th March 2015, SC reiterated its 2013 direction not to make Aadhaar mandatory.
Aadhaar law has many more flaws. It gives UIDAI authority to pass regulations, and add more biometrics in addition to fingerprints and iris. The Act does not prevent authority from requiring the collection of DNA as biometric information. Act allows the authority to decide the period of preservation. This raises an apprehension that the long-time preservation of records might lead to misuse.
An individual holder of Aadhaar number also was not given right to access to his own biometric record (S 28). According to section 57, ‘any corporate or person’ can use this database, decreed in a section that carries the sub-heading ‘Act not to prevent use of Aadhaar number for other purposes under law’. It is subject to any law or contract. It does not explain the contract between whom. As per Section 6, the UIDAI may require holder to update demographic and biometric information from time to time. If residence or mobile number changes, the citizen has to submit his biometric data again. Section 29(2) says identity information other than core biometric information may be shared. But it shall not be used for any purpose other than that specified to the individual. Sub-clause (b) says it cannot be disclosed further, except with the prior consent of the individual. It is a safeguard. But law does not provide citizen with remedy for breach of this safeguard.
The government claimed that Aadhaar serves effectively in de-duplication, prevents fraud of multiple cards and has already saved huge public fund.
Data theft or leakage
Is the biometric data of a billion people safe? It was reported by the Tribunal on 4th January 2018 that for Rs.500 an access to a billion identities on UID database is possible. It was also reported that there are one lakh illegal users of UID data, including anonymous groups created on WhatsApp. Government websites and educational institutions displayed personal information along with UID numbers in November 2017. Around 36% people are excluded from PDS in Rajasthan, because they could not authenticate due to finger print failures. In Jharkhand, many starved to death because they could not link UID numbers with their ration cards. When data has already been breached what is the purpose of Data Protection Laws and Aadhaar Act?
Biometrics is known as untested technology even by the UIDAI’s own admission. Critics question the imposition of such technology on entire population exposing the citizens to tracking. RTI Act mandates the state to be transparent to its people, but most of the information is denied under privacy clause, whereas the UDI allows every individual to be profiled and tracked by state and private companies.
The issues before the apex court are:
a) Whether a citizen has a right of choice, i.e, right to refuse to give biometric data? Can state coerce a citizen to part with the personal and biometric data? Is it not violation of fundamental right of privacy under Part III (as per declaration in Puttaswamy judgement) and right against self incrimination guaranteed specifically under Article 20(3)?
b) Why a citizen should not have a right of choice to be out of Aadhaar net?
c) Is it not breach of privacy of a billion people if their name, photo, address, gender, date of birth, parent’s names, etc are exposed to and by anonymous sellers?
d) How can Centre go ahead with Aadhaar Act without having comprehensive legislation on right to privacy and reasonable restrictions on it?
The Aadhaar project started as registering residents, who are numbered without verifying residence criterion: they are now numbers or consumers, an easy fodder for market whose forces can break, leak and steal the data and people have pinned their hopes on the apex court for justice. But what can anybody do without a clear mandate in the form of law on privacy and data protection?
(Prof Dr. Sridhar Acharyulu is Central Information Commissioner. This note is based on his presentation at the seminar organised by Moneylife Foundation on RTI, Privacy and Aadhaar at Pune, on 10th February 2018. Views expressed are personal and not those of his office)(www.moneylife.in)
part c Iinformation on & around
· Denying Information For Lack Of Aadhaar Violates RTI Act: Central Information Commission
Denial of information for the lack of Aadhaar card is a serious breach of right guaranteed under the RTI Act and amounts to harassment of the applicant, the Central Information Commission has held.
The Commission has imposed maximum penalty under the act on the then RTI handling officer of the Housing & Urban Development Corporation (HUDCO) for not providing information on gifts purchased by it and expenses incurred by its CMDs on the grounds that identification documents were not provided by the applicant.
Not only in 30 days, but even after that the information was not given until the CIC ordered, thus, deemed refusal of RTI application was proved in this case and that should attract the penal proceedings, Mr. Acharyulu said. "The CPIO can deny information only under sections 8 and 9. He cannot invent new grounds for denial like lack of Aadhaar Card, Voter Id Card, Passport etc. This Section was violated by Dr. D. K. Gupta as he did not give any information in 30 days and beyond also," he said.
Mr. Acharyulu said Dr. Gupta is liable and deserves maximum penalty. He is directed to pay a sum of Rs. 25,000 in five equal monthly instalments, the commissioner said.
"Most unfortunately successor CPIO S. K. Gupta also exhibited similar anti-RTI attitude and made it clear that his intention was also not to give information for the same reasons given by D. K. Gupta," he said.
"Denial of information for lack of Aadhaar card will be a serious breach of right, which was guaranteed by the RTI Act and also amounts to harassment of the applicant," he said. (Source: https://www.ndtv.com/india-news/denying-information-for-lack-of-aadhaar-violates-right-to-information-rti-act-cic-central-informatio-1793280)
· 181 residents of Mumbai got HIV through infected needles between 2012 and 2017
The National Aids Control Society (NACO), in its reply to an application filed under Right to Information Act, has revealed that over 181 residents of Mumbai acquired HIV through infected needles between 2012 and 2017.
The data was shared at the Integrated Centres for Testing and Counselling. A senior doctor said that on an average (with variations in some years) about 70 to 200 people get HIV through infected needles every year. In 2017-18, 69 people, including 29 women, contracted the infection. “The numbers have been intensely debated by state agencies that have been working on controlling the disease,” said a senior doctor.
Officials from the state Aids Control Society said that less than 0.5 per cent of new infections are due to infected needles and that over 90 per cent of the infection in the state happens through the heterosexual route. “The needle-infection numbers are based on voluntary disclosures made by people during counselling sessions before and after they were tested for HIV in ICTCs. Often, patients tend to suggest blood transfusion and infection through needles as a possible mode of transmission,” said the official. He added that HIV is a weak virus and the viral load of the infected person must be really high for transmission.
“As per studies, one in 10 persons will be affected with HIV if an infected needle has been used,” said a doctor. Interestingly, the highest HIV prevalence (7 per cent) in the country is among Injection Drug Use (IDUs), who use addictive substances through injections by exchanging needles. Doctors said that the authorities must also think of Hepatitis C infection since it transmits more effectively than HIV. “In Mumbai IDUs, hepatitis prevalence is around 35 per cent, whereas HIV is 9.5 per cent,” he said.
CIC rebukes Finance Ministry for saying it has no information about Vijay Mallya’s loans
Chief Information Commissioner RK Mathur said the ministry’s response to an RTI query about the industrialist’s loans was vague and not sustainable as per law.
The Central Information Commission has criticised the Ministry of Finance for saying it has no information about that loans that industrialist Vijay Mallya took from different banks, PTI reported on Wednesday.
The commission, which handles complaints regarding Right To Information queries, told the Finance
Ministry that its response was “vague and not sustainable as per law”.
Chief Information Commissioner R. K. Mathur was hearing an appeal by one Rajiv Kumar Khare, who said he had approached the commission as his RTI application that sought details of Mallya’s loans did not get a proper response from the Finance Ministry.
Khare said the ministry first told him the information about Mallya’s loans could not be given as it was exempted under RTI Act clauses related to personal safety, and that it would have a “prejudicial effect on the economic interest of the state”. The ministry official added that the information was not available with the ministry but that Khare may find it with the banks concerned or the Reserve Bank of India.
However, the ministry has earlier responded to questions in Parliament about loans sanctioned by banks to Mallya and the details of the guarantees Mallya gave for those loans.
The chief information commissioner has asked finance ministry to transfer Khare’s application to a proper public authority.
· Universities can levy only RTI rates for answer sheets: Kerala HC
Universities can only levy fee specified as per RTI Act for answer sheets and other documents issued under the Act even if there is a separate regulation for charging higher fees, the Kerala High Court has held.
The ruling by a division bench of the court was after considering an appeal (W.A. No. 2193/2017) filed by the University of Kerala challenging an order issued by state information commission. While the university was charging Rs. 500 for an answer sheet, it was ordered that only Rs. 2 can be collected for each page while providing the information under provisions of RTI Act.
A single bench had upheld the state information commission's order and the university had filed an appeal, which was considered by the division bench. The university had contended before the division bench that even if an application for obtaining information regarding an answer sheet is filed under RTI Act, the applicant is liable to pay the prescribed fee as the university has framed regulations fixing the fee.
Declining to agree to the university's contention, the division bench said in the judgment, "Having considered the submissions made, we confess our inability to accept the said plea. It may be true that the University has framed its Regulations prescribing the fee payable by the applicants for information. However, insofar as the information provided under the Right to Information Act is concerned, the realisation of the expenses thereof are regulated by the provisions contained in Section 7 thereof. Such provisions of Section 7 will govern the prescriptions under any other Act as is evident from Section 22 of the Right to Information Act." The court upheld the single bench's judgement and dismissed the university's appeal.
· SIC penalises Bijnor CMO for not providing information under RTI
Uttar Pradesh information commission has slapped a fine of
Rs. 25,000 on the chief medical officer (CMO) of Bijnor
for his alleged failure to furnish information under Right to Information Act
(RTI) to an activist. State information commissioner Hafiz Usman passed the
order on February 17 and the copy of the order reached here on
Monday. When contacted, Bijnor CMO Rakesh Mittal denied the charges.
“It came to my notice that I have been slapped with a fine of Rs. 25,000. I sent all the information to the concerned authority on Monday,” the CMO said. An RTI activist had sought the number of quacks operating in the district from the district health department recently. However, later, he approached the commission claiming that he was denied the information.
The CMO on Monday said that cases have been registered against 20 quacks under relevant sections while 39 doctors have been served notices during the current financial year.
According to district administration, A. K. Singh, an activist, had sought details of crackdown on quacks under RTI and had also inquired about the number of clinics running illegally in the district.
When he did not get the information, Singh approached the commission with the complaint. Later, SIC slapped a fine of Rs. 25,000 on the CMO and asked him to provide all the information within 30 days.
rapped on its knuckles by Law Commission, could soon come under ambit of
In another effort to impose checks, balances and accountability on the Board of Control for Cricket in India (BCCI), the Law Commission has now suggested that the apex cricket body of the country be made into a 'public body', or at least a private body that will be under the ambit of the Right to Information (RTI) Act.
The panel had finalised its report and will soon submit it for the consideration of Union law minister Ravi Shankar Prasad, according to a report in The Times of India. "We have found that BCCI is eminently qualified to be classified as 'state' under Article 12 of the Constitution," Law Commission chairman Justice B. S. Chauhan was quoted as saying by the daily. The BCCI at present works as a private entity under the Tamil Nadu Societies Registration Act, and if the government accepts the Law Commission's recommendations, it will have far-reaching consequences for how cricket is run in the country.
· Over 3.50 lakh cases of abscesses reported in India in last one decade due to negligence
Over 3.50 lakh cases abscesses (Adverse Event Following Immunization (AEFI), have occurred in different private and public hospitals throughout India, in the last one decade, due to neglect and lack of proper care by attending medical staff.
As per the information collected from the union health department by Right to Information (RTI) activist Chetan Kothari, over the years, there has been reduction in number of such cases. But they continue to occur.
An “abscess” is a collection of pus that builds up within the tissue of the body. Signs and symptoms of “abscess” include redness, pain, warmth and swelling.
According to medical practitioners, a part of the body has to be properly cleaned before an injection is injected and after injecting the injection, that portion has to be kept covered with cotton at least for 5 minutes, instead of sending away the patients immediately. Since inoculation is mainly concerned with children, more is required.
AEFI cases in last one decade in India
As per the data, maximum cases of AEFI were reported in 2008. The break of AEFI cases over the years is: 21,984 (2017), 26,886 (2016), 29,021 (2015), 30,035 (2014), 34,144 (2013), 49,435 (2012), 42,348 (2011), 30,038 (2010), 42,859 (2009), and 50,528 (2008).
AEFI cases in 2017 in India
Similarly, during 2017, about 21,984 cases of AEFI were reported in the country, which included 2,277 cases from urban areas and 19,707 cases from rural areas. While 66 cases were reported from private hospitals, 21,918 cases were reported from public hospitals.
RTI Clinic in March 2018: 2nd, 3rd, 4th Saturday, i.e. 10th, 17th and 24th 11.00 to 13.00 at BCAS premises. ▄