The SC’s ruling on RTI is only a minor victory: The judiciary is often not transparent at the district court level, which is the first point of contact for most litigants

Source: Hindustan Times dated 26.11.2019

Vaidehi Misra and Shreya Tripathy (Both work on judicial reforms at the Vidhi Centre for Legal Policy)

On November 13, the Supreme Court (SC) held that the office of the Chief Justice of India is a public authority, and falls within the ambit of the Right to Information (RTI) Act.

A five-judge Constitution bench headed by Chief Justice Ranjan Gogoi upheld the 2010 Delhi High Court verdict, and dismissed three appeals filed by the secretary general of the Supreme Court and the Central Public Information officer of the apex court.

While the ruling is being hailed as a victory by many, it is, at best, a minor one. For instance, the SC judgment does not make it mandatory for judges to disclose their assets proactively. Additionally, there are far more serious issues with judicial transparency, especially at the district-level judiciary.

The district courts are often the first point of contact with the country’s justice system for a vast majority of litigants in the country. Hence, it is critical that district courts comply with the requirements of the RTI Act. In our report, Sunshine in the Courts, we found major issues in the enforcement of the RTI Act at the district-level judiciary. These shortcomings must be rectified for greater judicial transparency.

For instance, the RTI Act’s Section 28 allows “competent authorities”, such as the high courts (HC), to frame rules to carry out the provisions of the Act. But the report found that four high courts (Gujarat, Karnataka, Madhya Pradesh and Patna) did not even have any RTI rules for their respective district courts. This makes it impossible for applicants to exercise the provisions of the RTI Act against these courts, significantly increasing the discretion of the respective public information officers.

The report also found that 13 high courts rules did not specify the names of authority for collecting the RTI fees, in case an application was filed with a district court. The failure to identify such authority makes it difficult for an applicant to pay the fee for the RTI application, when the payment is being made through instruments such as postal orders.

The RTI Act’s Section 4 also imposes an obligation on public authorities, such as district courts, to disclose and disseminate information about their functioning — budgets, expenditure-related data, and administrative procedures — on their e-court websites. But we found that only the district courts in Kerala, Punjab, and Haryana have made detailed disclosures on their websites, but mostly in English, and not in the local languages. The worst performers are Assam, Rajasthan, Madhya Pradesh, and West Bengal. In these states, not a single district court has made any kind of disclosure under the RTI Act on their websites.

We also conducted an analysis of the compliance of the HC with the RTI Act on the basis of four indices: Legality Index (which assesses the legality of the high court RTI rules vis-á-vis the RTI Act); Convenience Index (which assesses the extent to which the RTI Rules framed by the high courts make it inconvenient for citizens to file RTI applications); Practice Index (which assesses the practices used by the Public Information Officers of the high courts to respond to RTI applications); and Disclosure Index (which assesses the quality of disclosures made by the High Courts under Section 4 of the RTI Act). As expected, the performance of the HC differed with the indices. For example, the Madras High Court topped the legality index but performed poorly on the convenience index. The district courts in most states still have a long way to go in order to comply with the RTI Act. But there is a possible road map for reform.

First, high courts must explicitly clarify the rules governing the filing of RTI applications with district courts. Second, in order to make Section 4 disclosures accessible, they must be available in the local language, in addition to English. Finally, these disclosures should be clearly marked and easily accessible on the e-Courts website.

Bringing transparency to the courts: The SC’s order on the RTI will make the judiciary accountable, within certain boundaries

Source: Hindustan Times dated 15.11.2019

Yashovardhan Azad and M Sridhar Acharyulu (Former Central Information Commissioners (2013-2018))

The Supreme Court verdict bringing the office of the Chief Justice of India (CJI) under the ambit of the Right to Information Act (RTI) has been widely welcomed. It sends a strong signal to all democratic institutions to adhere to the twin principles of transparency and accountability underlining the RTI Act. It has upheld the earlier decision of the Delhi High Court (HC) that the apex judiciary consisting of the CJI and other justices as per Article 124 of Constitution of India, besides the office of CJI, is a public authority covered under the RTI. The order is expected to infuse the administrative systems with substantive element of transparency, within the judiciary. The decision also sends across a message to the public offices to take off the veil of secrecy and facilitate more disclosure.

The issue arose from a request by Subhash Chandra Agrawal for information about the number of judges who filed their annual assets details to the CJI voluntarily. The Central Information Commission(CIC) ordered disclosure, but the Central Public Information Officer (CPIO) in the office of apex court preferred a writ in the Delhi HC. The matter went before the full bench of HC of AP Shah (CJ), Vikramjeet Sen and S Muralidhar JJ, who concurred with the CIC. It held that that the administrative wing of judiciary should be transparent and furnish information held by office of CJI, if not hit by the exemption-clauses in Section 8. On January 10, 2010, Justice Shah had said that judicial independence was not a judge’s privilege but a responsibility cast upon him.

After staying the operation of Delhi HC order, the case was not taken up for hearing for a number of years. When the appellant sought to know the status, file notes were shared which revealed that, each time, it was directed to be posted after vacation or before a new CJI.

Finally, the bench headed by Justice Gogoi has given a comprehensive judgment on the entire RTI Act. Justice NV Ramana and Justice Dhananjay Chandrachud wrote separate but concurring judgments.

The SC’s affirmation of the HC judgment has wider implications and is a clear signal to infuse transparency in all high institutions. The bench said that transparency does not undermine judicial independence, while Justice Ramana added “…Right to privacy and Right to information go hand in hand. None can take precedence over the other”.

There is also a word of caution that the judiciary must be protected from surveillance through the RTI. Justice Chandrachud said that, in any given case, the information officer should weigh the public interest and employ the principle of proportionality. He also added that “the question is of drawing a line. In the name of transparency, you can’t destroy the institution”.

Having said that the CJI’s office is an integral part of public authority, though not a separate entity under section 2(h), the bench has remanded the information requests back to the SC’s CPIO for “reconsideration”, and to decide whether to give information or not. The judgment explains how disclosure or denial can be carved out of the provisions of the RTI Act, adhering to its true spirit and contextual limitations found from definitions and exception clauses. Requests have to be decided after a very careful consideration of a whole range of issues, balancing disclosure with privacy.

What is extremely significant is the fact that the constitutional bench has accepted the will and wisdom of Parliament to bring the judiciary into the realm of accountability legislation. It is also a thumbs up for the RTI regime, since, of late, it appeared to be at the receiving end in recent times. Voices from some quarters were also being raised that while the SC was advocating transparency in all spheres, the decision in its own case was pending. Now, civil society can hope that transparency will remain the mantra for good governance in all the three estates - judiciary, executive, legislature.

The judiciary carries the trust of the people and is accountable to the people. It is a unique wing of constitutional governance, with authority to review the decisions by the President, Prime Minister or chief ministers and legislatures both at centre and states. It is the real guardian of the fundamental rights of the people. Hence an endorsement from the bench headed by CJI will give fillip to people’s quest for transparency and accountability.

Finally, being a party to the litigation before the bench, the SC has just not confined itself to the disclosability of the information sought but has gone ahead to explain the nuances of various provisions of information rights. Though the appeals were nine-year-old, the judgment has added a significant precedent to the new information jurisprudence. In fact, the judgment is reiteration of section 2(h) of RTI Act, which defines and expands the definition of public authority. The examples and explanations however, including indicative illustrations culled out by judiciary, might possibly expand the restrictions and reduce the scope of transparency to a certain extent.

The judgment will also bring back in focus the rules recently made by the government under RTI (amendment) Act 2019, which alters the tenure and salary structure of Information Commissioners at the Centre and in states.

SC opens itself: Office of CJI under RTI Act

Articles in the Indian Express dated November 14, 2019 regarding the SC judgment bringing the CJI Office under RTI Act by Ananthakrishnan G. Links to these articles:

http://epaper.indianexpress.com/c/45724209

What bringing CJI's office under RTI means
Article by Shyamlal Yadav:

http://epaper.indianexpress.com/c/45719497

Activists hail SC’s order on CJI office: Ex-info commissioner says unfortunate that it took 10 yrs

Source: Hindustan Times dated 14.11.2019

Transparency activists on Wednesday welcomed the Supreme Court’s decision on bringing the office of the Chief Justice of India under the ambit of the Right to Information Act, saying that the apex court has reiterated the established position in law in the matter.

“I welcome the decision of the constitution bench to reiterate the established position in law that the CJI is a public authority under the RTI Act,” said Venkatesh Nayak, head of access to information programme, Commonwealth Human Rights Initiative, an NGO.

In a landmark verdict, a bench headed by Chief Justice Ranjan Gogoi upheld the 2010 Delhi High Court verdict that the office of the Chief Justice of India comes within the ambit of the RTI law and dismissed the three appeals filed by Secretary General of the Supreme Court and the Central Public Information Officer of the apex court. The top court said that only names of judges recommended by the Collegium for appointment can be disclosed, not the reasons.

Cautioning that RTI cannot be used as a tool of surveillance, it held that judicial independence has to be kept in mind while dealing with transparency.

On court’s remark that RTI cannot be used as a tool of surveillance, Nayak said: “It is extremely unfortunate that an observation has been made that RTI can be a tool for surveillance on the judiciary. Surveillance has unfortunately been equated with transparency that is required under a law duly passed by Parliament.”

Former information commissioner Shailesh Gandhi also hailed the decision. “It is a very good decision of the SC... It is unfortunate that it has taken 10 years. The CIC has upheld this. Delhi HC had also upheld this. Now, the SC has upheld this. You need to be accountable for your work... ”

‘Ruling is a milestone’

Subhash Chandra Agarwal, the Right To Information activist who fought a 12-year-long battle to ensure that the highest office in judiciary is answerable to people, termed the Supreme Court’s decision on Wednesday a “milestone” in the fight for transparency in public offices.

On Wednesday, the apex court upheld the Delhi High Court’s 2010 verdict and said that CJI is a public authority and falls within the ambit of RTI.

“This is a landmark judgment and will prove to be a milestone in the era of transparency. The apex court has ruled against its own (office) and said that the CJI comes under the ambit of RTI. I wholeheartedly welcome the Supreme Court’s judgment,” the 69-year-old activist said.

Agarwal said a resolution passed by the apex court in 2007 had prompted him to file an RTI demanding information.

“As per the resolution, the judges had to declare their asset to the respective chief justice of the SC or High court.I had filed an RTI the Supreme Court demanding copy of the resolution and information about whether judges were declaring their assets or not. While I got a copy of the resolution, there was no information provided for my second query,” said Agarwal.

Referring to the Wednesday’s order, Agarwal said that this will go a long way in ensuring transparency in public offices.

“We have been fighting for transparency in the system. Public offices should be covered under Right to Information Act. This should set an example for government bodied which are resisting to be brought under the RTI Act,” said Agarwal.

Door to greater transparency for courts is now shut

Alok Prasanna Kumar (Senior Resident Fellow, Vidhi Centre for Legal Policy)

While accepting that the office of the Chief Justice of India (CJI) is subject to the Right to Information Act, 2005 and dismissing appeals against a Delhi high court judgment to that effect, a Constitution bench of the Supreme Court (SC) has firmly slammed the door shut on greater transparency for the courts.

What I have just said may seem patently contradictory, but I believe this is the only way to make sense of what is in essence a contradictory judgment in the Central Public Information Officer (CPIO), Supreme Court of India v. Subhash Chandra Agarwal case. First, the context. The respondent, Agarwal, asked what now seems a fairly innocuous question — do judges of the SC declare their assets as they undertook to in accordance with a 1997 resolution? That this question was itself so strenuously resisted tells you something about the court’s approach to transparency then and now. Even after the Central Information Commission and two benches of the Delhi high court agreed that the CJI’s office should be required to answer this question, it is only now, more than 10 years later that a definitive answer has come from the court: yes, it must.

Two other instances where he sought information from the CJI’s office on judicial appointments but was denied have now been sent back to the CPIO to take a fresh decision. Such a finding is no doubt welcome as also holding that simply answering this question breaches no privacy or confidentiality of judges. However, the meat of the matter lies in the contents of the asset declarations and crucially, the information relating to appointments to the higher judiciary. Here, the majority judgement authored by justice Sanjeev Khanna (on behalf of himself and CJI Ranjan Gogoi and justice Deepak Gupta) shirks from making a definitive finding on these matters. The court retreats from laying down any rules or law. It only outlines very broad principles, attempting to balance transparency, privacy, accountability and judicial independence that offer little guidance and much confusion to any future CPIO asked to divulge information.

Not that the need to draw a balance is not valid -- privacy is a fundamental right and judges don’t lose it simply by virtue of their office. What was incumbent on the court was to lay down, as a matter of rule, what sorts of information is to be released in “public interest” and what needed to be kept confidential. No one disputes that judicial independence needs to be balanced with concerns of transparency and accountability. However, to leave it to only the mechanism of Section 6 of the RTI Act means that each request for information from the CJI will likely involve long and expensive litigation. As the judgement has not laid down what sorts of information about judges can be released proactively, any applicant must approach the CPIO who, if the information relates to a judge, will ask the judge if she has any objections to the request for information and then accept or deny the request. It would be a brave CPIO who would disagree with a Supreme Court judge’s request to not make information public, whatever be the reason.

What makes the judgement even more paradoxical is that while the court acknowledges that judicial independence may actually be strengthened by greater transparency, it hesitates to take that logical step and mandate that certain kinds of information may be released to the public without any fear of transgressing boundaries.

Even as regards information about judicial appointments, the judgement obliquely mentions the collegium’s recent decision to stop publishing details of candidates rejected for appointment and without offering any opinion on whether it was right or wrong.

Justice DY Chandrachud’s partly dissenting opinion, however, does go the extra step, calling for the collegium to at least list out the criteria on the basis of which appointment decisions are to be made. However, he too toes the line of the majority judgement when it comes to the question of laying down a rule and leaves it to the discretion of each CPIO deciding a case.

While upholding and accepting the Delhi high court’s conclusions is not wrong in any way, the Constitution bench has missed a golden opportunity to take the conversation on transparency forward and firmly lay down the law. A ruling on law from the bench was especially necessary since even the progressive measures undertaken by past CJIs, to release judges’ assets declaration data and collegium resolutions, have been rolled back by their successors in secrecy, with little or no notice to the public. It is tragic that this judgment which had an opportunity to set the standard for transparency in India’s judiciary chose instead to shun the light.

SC verdict on plea to bring CJI office under RTI today

Source: Hindustan Times dated 13.11.2019

A five-judge bench of the Supreme Court led by Chief Justice of India (CJI) Ranjan Gogoi will rule on Wednesday on whether the CJI’s office is covered by the transparency law, the Right to Information (RTI) Act.

The Supreme Court verdict will come on a petition filed by Central Public Information Officer of the Supreme Court against a Delhi high court ruling of 2010 that held the office of the CJI to be a public authority and directed the secretary general of the top court to disclose details of the assets of judges sought by RTI activist SC Agarwal.

Agarwal had in 2007, under the RTI Act, sought a a copy of the resolution dated 7.5.1997 of the full court of the Supreme Court, which requires all judges to make a declaration of assets possessed by them.

In 2010, a three-judge bench of the Delhi high court comprising justices AP Shah, Vikramjit Sen and S Murlidhar had held that the office of the CJI is a “public authority” and hence it comes under the RTI Act. But the ruling was challenged in the top court, which stayed the operation of the judgment while admitting the appeal.

The bench had then said: “RTI Act merely recognises the constitutional right of citizens to freedom of speech and expression. Independence of judiciary forms part of basic structure of the Constitution. The independence of judiciary and fundamental right to free speech and expression are of a great value and both are required to be balanced. The current debate is a sign of a healthy nation.”

Arguing the case, earlier this year advocate Prashant Bhushan had submitted to the court: “Disclosure of information is the best safeguard to ensure the right people get appointed and disclosure must be in public and has to be for the public.”

Attorney general of India KK Venugopal, appearing for the Supreme Court, asserted that full transparency will affect judicial independence and details pertaining to judges should not be made public.

The question whether the office of the CJI comes under the RTI Act or not was referred to a constitution bench in 2017. The three-judge bench that made the reference was headed by Gogoi, the current chief justice.

RTI 2.0: Eroding a valued right

Source: Hindustan Times dated 31.10.2019

-- Yashovardhan Azad and M Sridhar Acharyulu (Former Central Information Commissioners, 2013-2018)

The new rules curtail the autonomy and authority of information commissions. Citizens will suffer.

Fifteen years after the enactment of the Right to Information (RTI) Act, the RTI regime is set to play a fresh innings in the future. On October 25, the Union government notified new rules for fixing tenure, salaries, and service conditions of information commissioners in the central information commission and the state information commissions. In July, the Centre had passed a bill to give itself full authority for deciding tenure and salaries of information commissioners, at the Centre as well as in the states.

There is a strange anomaly in the change in the salary structure for the central and state information commissioners. Earlier, all central information commissioners were paid the same salary, which was equivalent to that of central election commissioners (CEC), and Supreme Court judges. Under the new rule, however, only the chief information commissioner will be entitled to the earlier salary, while the salaries of other information commissioners will be equated with that of secretaries in the Government of India (GoI). This means that the salary of central information commissioners will be reduced from ~2.50 lakh to ~2.25 lakh. All rules governing the GoI secretaries, pertaining to their leave and leave travel allowance, will now be applicable to the information commissioners.

But here is the strange part. While deciding to give more to the central information commissioner than other information commissioners, the new rules have removed this salary disparity in the states, hitherto existing between the state chief information commissioner and other information commissioners. Now salaries of all state information commissioners, including the state chief information commissioner, will be equated with the salary of a secretary in the GoI. Earlier, the state chief information commissioner’s salary was equated with that of the CEC.

The above steps violate the parliamentary standing committee deliberations during the formulation of the RTI Act. The committee, which comprised members of Parliament from various political parties, ruled that the salary and perks of central information commissioners should match that of CECs and SC judges to bestow upon the information commissioners status and autonomy, befitting their post.

The second indication of the erosion of status and autonomy of information commissioners is evident from the reduction of their tenure from five years to three. Since the power of revision of rules is with the Centre, extensions can be given at the government’s discretion to “acceptable commissioners”. This is a huge blow to the autonomy of the commission.

The Centre has severely curtailed the independence and autonomy of individual information commissioners within the commission by making them subordinate to the chief information commissioner, which was not envisaged in the original RTI Act of 2005. The chief was first among equals, but now, he will act like a head of a department. This will weaken not just the commission, but also individual information commissioners.

With the promulgation of the new rules and the Centre arrogating to itself the power to change them, the federal scheme of distribution of powers as per the original RTI Act has been weakened. The states, after all, had the powers to decide the salary, perks and tenure of their commissioners. The amended rules dilute the spirit of the original Act.

The RTI regime is at a crossroads today. The rules will diminish the importance of the commissions and the commissioners. They will dilute their authority to question senior bureaucrats for delay or obstruction in furnishing information by various departments. Information officers will also not take the orders of the commission seriously.

By making the central information commissioners senior to information commissioners, every successive government would like to appoint a central information commissioner of its own, from outside. This will lead to an unhealthy practice since, in a quasi-judicial set-up, the chief should be chosen on the basis of seniority.

There was a furore when a retired chief justice was appointed as governor. The trend now continues, with a former central information commissioner being appointed administrator of the newly-formed Union Territory of Ladakh within a year of his retirement. It may be pointed out that he is a lateral entrant, superseding very competent information commissioners in the commission.

A persistent complaint from civil society and other stakeholders has been the crowding of the commissions with bureaucrats. Rarely are non-officials inducted, especially at the Centre. With the change in rules, the government will feel even more comfortable having bureaucrats as information commissioners. In the states, retired senior-most bureaucrats would be best placed to join as the state chief information commissioner, in similar rank and pay. There have been vigorous protests against this trend by the civil society members, and they have threatened to move court as a last resort.

Activists demand social accountability law: Say RTI violated if information not exempt under it

Source: DNA dated 24.09.2019

RTI activist and people working in the different social fields across Maharashtra gathered to demand a comprehensive social accountability law in the state. The need for it was felt to better publicise government schemes, ensure intended beneficiaries are getting it, accountability and transparency in the process.

The demand was made at the meet ‘State level consultation on initiating discussion on building discourse of demanding Comprehensive Social Accountability Act in Maharashtra’ that was jointly organised by SATHI and state accountability resource unit (SARU) at the YMCA, Mumbai Central, on Monday. A book on the social accountability in public service, existing mechanism and way forward was also released.

The meet was attended by Rakshita Swamy who heads SARU, Nikhil Dey, senior activist Mazdoor Kishan Shakti Sanghatna (MKSS), Rajasthan, Shailesh Gandhi, former central information commissioner, Brian Lobo, Dr. Nitin Jadhav, and Dr. Abhay Shukla from Sathi among others.

Swamy and Dey spoke about the community participation in social audit, law that passed in Meghalaya and one that is to come up in Rajasthan. They also spoke about the process and movement behind them. In Meghalaya, the social accountability law covers 18 districts and brings 26 schemes under social audit.

“Fight for information and accountability is of over 30 years. The Rajasthan government has announced Comprehensive Social Accountability law in the budget speech. Such a law needs to be there in all states,” said Dey.

Dey also spoke about the sustained efforts of activist and people that have led to the Jan Soocha portal in Rajashtan that gives details of all schemes and beneficiaries. “RTI Act is violated the moment information is not provided suo motu as per RTI Act unless it is exempt under provisions of RTI Act,” said Dey.

“The idea of the meet was to brainstorm and see how things are functioning in Maharashtra. Speakers from different fields came and mentioned about the existing mechanism and how it can be improved,” said Shukla.

The organisers said that the feedback received stated that mechanism is not in place or not well functioning. “There is no social audit mechanism functioning in places where law has provided for. That is what we got from the feedback,” said Jadhav.

Gandhi said that until social accountability law comes into place, existing laws should be looked at. “Till such time we do not have a social accountability law, we can ask for implementation through other laws like the ones that talks about clearing files in 45 days, RTI  and others. If we are asking for implementation of law, they cannot say no to it,” said Gandhi.

SC paves way for RTI against institutions, hospitals & NGOs

Source: DNA dated 18.9.2019

By Abraham Thomas

Citizens’ right to know took a big leap on Tuesday after the Supreme Court held that NGOs and public bodies having financial transactions with the government will have to provide information under the Right to Information Act.

The ruling is likely to force several hospitals and educational institutions to come clean on their affairs. These organisations had so far secured immunity from RTI taking advantage of the loosely worded definition of “public authority”.

Under the Act, a public authority is one which is established by or under the Constitution, a Central or state law, or by an executive notification issued by any government. It also covers any “body owned, controlled or substantially financed” or “NGO substantially financed”.

The court injected clarity as it heard a batch of appeals by the DAV College Trust and Managing Society of Chandigarh and two colleges of Kerala - Sree Narayana College and Mar Dionysius Trust against orders of the High Courts of Punjab & Haryana and Kerala.

A bench of Justices Deepak Gupta and Aniruddha Bose said, “We have no hesitation in holding that an NGO substantially financed, directly or indirectly, by funds provided by the appropriate government, would be a public authority amenable to the provisions of the RTI Act.”

The judges went on to elaborate, “A society which may not be owned or controlled by the government may be an NGO but if it is substantially financed directly or indirectly by the government, it would fall within the ambit of Section 2(h)(ii).”

According to the court, “substantial” did not necessarily have to mean “major portion or more than 50 per cent” but could be in the form of “land in a city given for free or on heavy discount to hospitals, educational institutions or such other body”.
In the case of DAV, the SC found that they annually received a grant of over Rs 15-19 crore, which in its opinion was substantial. In the case of remaining colleges, the judges left it for the High Court to determine whether they would fall in the bracket of “substantial financing”.
Justice Gupta said that the purpose of the Act was to bring about transparency and probity in public life. “If NGOs or other bodies get substantial finance from the Government, we find no reason why any citizen cannot ask for information to find out whether his/her money which has been given to an NGO or any other body is being used for the requisite purpose or not.”

Opinion of Shailesh Gandhi, former central information commissioner:

Transparency for public fundsThe position in the RTI Act that private organisations and NGOs which are substantially funded by government are public authorities and are covered by the RTI Act has been very clear since the beginning of the law. Almost all adjudicatory bodies were accepting this. The private organisations in this case appeared to have represented a very convoluted meaning of the words of the law which has been rightly struck down by the SC. The key principle of RTI is that wherever public money is involved, citizens have the right to know.

What new amendments mean for Right to Information Act

Source: The Times of India dated 29.07.2019

The Right to Information (Amendment) Bill, 2019, was passed in the Rajya Sabha on Thursday amid high drama and an Opposition walkout. The Opposition says the changes put forth in the bill, which had already cleared the Lok Sabha, undermine the independence of the RTI watchdog. The government has argued that the amendments leave the information officials’ powers untouched and are aimed at streamlining the commission. A look at the changes being effected by the amended Act

1 No fixed tenure, or salaries, Centre says it’s a statutory body

The amendments do away with the fixed tenure of five years for the Chief Information Commissioner (CIC) and the Information Commissioners — instead, they will serve for a tenure determined by the central government.

Also, the Centre can now determine the salary of the CIC and the ICs, which is currently benchmarked with the salary of the Chief Election Commissioner (CEC) and the Election Commissioners, respectively, which in turn is benchmarked with the salary of a Supreme Court judge, amounts to Rs 2.5 lakh per month, along with a monthly allowance of Rs 34,000 and the usual perks like rent-free furnished housing and 200 litres of fuel every month.

After the amendments, the government has the power to fix the salary, which could be lower — given that the Information Commission is a statutory body unlike the EC, which is a constitutional body. However, the current incumbents’ salaries will not be affected by the amendment.

2 Centre to decide appointments, even for state CIC, ICs

Currently, the CIC and ICs are chosen by a three-member panel of the PM, the Leader of Opposition or leader of the largest opposition party in the Lok Sabha and a Cabinet minister nominated by the PM. Similarly, the State Chief Information Commissioners (SCIC) and State Information Commissioners (SIC) are chosen by a three-member panel of the CM, the state’s leader of opposition or leader of the largest opposition party in the state assembly and a state Cabinet minister nominated by the CM.

The amendments give the power to appoint and decide the term as well as the salary of SCIC and SICs to the Centre — which nullifies the independence of the state legislatures. Even the CIC and the ICs will serve at the pleasure of the government — raising the possibility that they would be more interested in ensuring the longevity of their tenures rather than serving the citizens’ interests.

3 Extended tenures possible

Current rules stipulate that no CIC, IC, SCIC or SIC can serve more than one term, which is for a maximum period of 5 years or till the age of 65, whichever is earlier. For ICs and SICs, if one of them is nominated to the post of CIC or SCIC, his/her total tenure as both IC and CIC or SIC and SCIC cannot exceed 5 years. Since the amended Act gives the government the power to fix tenures, there’s every likelihood that an incumbent seen as pliable or ‘friendly’ to the Centre may get to serve more than one term.

4 And termination in Centre’s hands?

If the tenure of the CIC, IC, SCIC and SIC are to be fixed by the Centre, it may follow that their removal from office may also be dependent on the Centre, whereas in the original bill, the CIC and IC may be removed only by the President — and the state governor in case of SCIC and SIC — after an inquiry by the Supreme Court finds reason for their dismissal from office.

SIC orders Maha govt to include RTI clause while disbursing funds

Source: DNA dated 28.01.2019

Ashutosh M. Shukla s_ashutosh@dnaindia.net

The state information commission (SIC) in a landmark order has directed the government to put a condition of RTI applicability when giving funds. The order will enable citizens to get information of records of all decisions and works that are related to government funding under RTI. Until now, a number of bodies evaded RTI and giving information stating that they did not get “substantial funding”.

Several schools and colleges said they did not have certain information and that it was with the Trust governing it. The trust would say that RTI is not applicable to it because it did not get any state funding. Now, at the time of funding or registration, a clause will have to be introduced that records all decisions and works related to government funding under the RTI Act.

The SIC order passed on January 9, 2019 is directed to chief secretary, additional chief secretary (school education), secretary of higher and technical education, secretary of medical education and registrar of University of Mumbai. It was passed on by Ajit Kumar Jain, state information commissioner (Brihanmumbai bench) on an appeal of Dr Susy Kuriakose, resident of Prabhadevi. It has to be implemented by February 15, 2019.

“I am yet to get information. The order gives time till February 15. It is a fair order. I think it should bring in more transparency for those who are working in aided colleges,” said Kuriakose.

DNA could not get in touch with BVB. D K Jain, chief secretary said, “We are processing the directions”.

Kuriakose had sought information from Bharatiya Vidya Bhavan (BVB) regarding meeting of governing committee, the notice of the meeting, agenda, minutes of meeting and report sent to the college in which her suspension and removal was decided. During the second appeal hearing, the Bharatiya Vidya Bhavan stated that the RTI is not applicable to it.

RTI Act is being steadily emasculated by spurious use of ‘personal information’ exemption

Source: Times of India dated 17.11.2018

Article by Shailesh Gandhi

The right to information is being steadily constricted by gross subversion of the law and Constitution. RTI Act mandates in Section 7 (1) that information can only be refused for exemptions specified in Section 8 and 9. Personal information may be exempted under Section 8 (1)(j) when “disclosure … has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”

A simple reading of the words shows that information under this clause can be denied if it is personal information whose nature has apparently no relationship to any public activity or interest; or whose disclosure would cause unwarranted invasion of the privacy of the individual. If the information is personal information, it must be seen whether the information came to the public authority as a consequence of a public activity. Generally, most of the information in public records arises from a public activity. Applications for a government job, ration card, passport, caste certificates are some examples of public activity.

However, there may be some personal information which may be with public authorities public activity, eg medical records, or transactions with a public sector bank. Similarly, a public authority may come into possession of some information during a raid or seizure which may have no relationship to any public activity. These would be exempt.

Unfortunately, it has become commonplace for adjudicators to truncate this clause and deny all information which can be connected with any person. Across the country information about MLA funds expenditure, officer’s leave, caste certificates, file notings, educational degrees, beneficiaries of subsidies and much more is being denied. Many PIOs are denying information which may have the name of a person claiming it is personal information and hence exempt.

Even if the information has arisen by a public activity, it could still be exempt if disclosing it would be an unwarranted invasion on the privacy of an individual. The denial of information from public records on grounds of privacy has to be in line with Article 19 (2) of the Constitution which allows placing restrictions on Article 19 (1) (a) in the interest of ‘decency or morality’. If, however, it is felt that the information is not the result of any public activity, or disclosing it would be an unwarranted violation of ‘decency or morality’, before denying information it must be subjected to the acid test of the proviso: “provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”

Public servants have been used to answering questions raised in Parliament and legislatures. Hence, when they have a doubt, the law requires them to consider if they would give this information to the elected representatives. They must first come to the conclusion that they would not provide the information to MPs and MLAs, and record it when denying information to citizens.

Another perspective is that information is to be denied to citizens based on the presumption that disclosure would cause unjustified harm to some interest of an individual which should be protected. If, however, the information can be given to legislature it means the likely harm is not very high since what is given to legislature will be in public domain. Hence, it is necessary that when information is denied based on the provision of Section 8 (1) (j), the person denying the information must give his assessment that such information would be denied to Parliament or State legislature if sought in the decision.

This exemption has been illegally made so wide as to deny most information. This is an illegal and unconstitutional emasculation of RTI by a majority of officials, commissioners and courts. An important fundamental right is being curtailed and the right to publish could be next.

The writer is former Central Information Commissioner

CIDCO sets up kiosk for voluntary disclosure of land allotment files

Article in the Indian Express dated 2nd December 2013 about CIDCO's kiosk for voluntary disclosure of land allotment files to reduce RTI queries and help citizens check the status of their files:

http://epaper.indianexpress.com/c/2003413

RTI ACT UPDATE

Source: The Economic Times dated 30th November 2013, pg. 3 

RTI Not for Research: Govt

Information officers told to provide matter with authorities and not draw inference

AMAN SHARMA NEW DELHI 

The government is not supposed to conduct ‘research’ on behalf of the citizen in response to Right to Information (RTI) pleas by way of deducing a conclusion from available material, states an update on the RTI Act, 2005 prepared by the Department of Personnel and Training. 

Apparently exasperated by ‘vague’ RTI pleas, the DoPT has laid out rules on what is supposed to be entertained by Public Information Officers (PIOs). “Some information seekers request PIOs to cull out information from document(s) and give such extracted information to them. A citizen has a right to get ‘material’ from a public authority, however, the Act does not require the PIO to deduce some conclusion from the ‘material’ and supply it to the applicant,” the update states. 

The DoPT document also says that PIOs are “not supposed to create information” that is not a part of the record of the public authority. “The PIO is also not required to furnish information which require drawing of inference and/or making of assumptions; or to interpret information; or to solve the problems raised by the applicants; or to furnish replies to hypothetical questions,” the document says, stressing only such information can be supplied that is “available and existing”. 

DoPT also wants citizens to not list out their grievances in the RTI plea and rather be more specific on what information they need to avoid ambiguity. “Instead of simply asking why my area is not being cleaned, cleaning schedule of the area should be asked. Similarly, instead of asking when we will get water supply, water supply planning of the area should be asked,” the document says. 

The government has also clarified that the RTI Act gives the right to information only to the citizens of India and not to corporations, associations or companies – which have been filing RTIs in vain. “They are legal entities or persons, but not citizens. However, if an application is made by an employee or office-bearer of any corporation, association, company or non-government organization indicating his name and citizenship, information may be supplied to him. In such cases, it would be presumed that a citizen has sought information at the address of the corporation,” the DoPT guidelines says. 

The guide also says that the government has issued guidelines that certain categories of information should be suo-moto published on their websites by public authorities to avoid RTI pleas regarding them. This includes details on foreign tours of prime minister, ministers and senior officers, information relating to procurement, public-private partnerships, transfer policy and transfer orders and discretionary and non-discretionary grants.

Not on the PIO List

PUBLIC INFORMATION Officer (PIO) not to deduce anything from the material 
NOT SUPPOSED to create information that is not a part of the public record 
NOT REQUIRED TO furnish information which requires making assumptions or interpretations

Chandigarh gets Asia’s first RTI library

If you wish to see, possess or deposit papers related to the Right to Information (RTI) Act, then here is good news for you. A library of RTI documents, touted as Asia's first, was inaugurated at Dwarka Das Library, Lala Lajpat Rai Bhawan on Friday. The library has been formed by Servants of People's Society in association with the Citizens' Voice and RTI Users' Association.

Interestingly, it was also the seventh anniversary of the RTI Act in the country. A large number of RTI documents were deposited with the library on the inaugural day. Onkar Chand, chairman of the Servants of the People's Society, said, "Making documents public will help those who want to refer them for litigation or research purposes. The process to collect documents from RTI users is on and we will upload the whole collection online within a few months, making it possible for anybody to access the information from anywhere in the world."

Hemant Goswami, chairman of the Citizens' Voice, said the library would ensure that documents procured by RTI users are put to further use. The library is an open source depository of information collected under the RTI Act. Anybody can become a member of this library free of cost and can also contribute to information available. The documents will be catalogued according to subject matter, ministry/department and whether they relate to the central or state government, making it easy for anybody to navigate through the collection.

"We call upon all RTI users to share the documents that are of no use to them now," said Goswami.

Source | Times of India | 16 June 2012