Nov. 23, 2011 Programme
Transforming our way of living: In memory of 26.11.2008
On 23.11.2011, PCGT and The Orchid Room Experiment organized a program in memory of the tragedy of the 26/11 terror attacks in Mumbai. The theme was in keeping with the spirit of moving forward, ‘Transforming our way of life: Containing Corruption and having Good Governance’.
The program began with a ‘Welcome Note and Theme’ by PCGT Chairman, Mr. Julio Ribeiro. This was followed by interesting mix of short speeches concerning role and responsibilities of society in matters of good governance. Mr. Praful Vora of India Against Corruption spoke on ‘Role of Civil Society’ highlighting the participation of civil society in the movement to fight corruption while Mr. Vallabh Bhansali spoke on the ‘Role of Industry’ emphasizing the need to focus on “growth with purpose” and finally ‘Role of Media’ with responsibility was stressed upon by Mr. Kumar Ketkar, Editor-in-Chief of Dainik Bhaskar Group.
The cultural performance, ‘Let’s Merge’ consisted of a very moving ‘Indo-Western Cross-overs’ by Dhanashree Pandit Rai, an acclaimed Indian classical vocalist and a leading exponent of ‘Thumri’. Ms. Pandit Rai and Keka Sinha, an established Kathak dance artiste later joined together to present ‘Thumri – Kathak Milap’ before a rapt audience.
Symphony Orchestra of India members performed to a rousing applause of the discerning audience. Ms. Kia Scherr of the USA brought tears to many eyes with her poignant poem, written in the Japanese Haiku style, ‘My Mumbai Story’; the poem brought back the loss of lives of her daughter and husband in 26/11 tragedy at The Oberoi and how Kia has looked beyond personal grief in the spirit of forgiveness and her mission-One World.
Two short films were screened, ‘The Power of Positive Thought’ and ‘Dreams for the Future’ focusing on how the victims and their families have moved on with their lives after the horrific attacks.
Mr. Narayan Varma (Jt. Managing Trustee – PCGT) shared his inspiring thoughts on the theme of the evening with Mr. Dara Gandhy (Managing Trustee – PCGT) concluded the program by proposing a Vote of Thanks.

December 2011

Kuchh Aur

Movie Parimahal – focusing Environmental issues was screened at Society of Education for Crippled (SEC) Day School, Agripada on December 5, 2011 followed by question – answer session.

December 6 being the death anniversary of Dr. Baba Saheb Ambedkar movie ‘Hum Honge Kamayab’ – depicting the childhood story of Dr. Baba Saheb Ambedkar was screened at St. Joseph’s school, Agripada followed by distribution of certificates and prizes to those who sat for Gandhi Vichaar Examination conducted on August 15 ,2011 as a follow up activity for ‘Bapu Ne Kaha Tha’ movie.

Movie Nasha – harmful effects of smoking, was screened at SEC Day school, Antop Hill on December 09, 2011 followed by question – answer session.

The same movie was also screened at Shri BPK Sahakari Vidhya Mandir on December 12, 2011 followed by question – answer session.

The movie, Nasha and Tenali Rama were screened at the residential camp of SEC Day school on December 19, 2011 at J.J. Nursing Home, Malad.

At all these places there was positive response from students. Also some of the students accepted that they had the habit of chewing of tobacco and now decided to give up the same and also tell family and friends about the same.

RTI workshop.

RTI workshops were conducted at Ismail Yusuf college, Jogeshwari on December 10 , 2011 and NirmalaniKetan College , Goregaon on December 11 , 2011 for around 100 students. Session started with introduction of PCGT followed by information on RTI and mock session of filling of RTI applications. There were many queries from students which was satisfactorily resolved.

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.10787-10788 OF 2011

(Arising out of S.L.P(C) No.32768-32769/2010) Chief Information Commr. and Another …Appellant(s) – Versus -

State of Manipur and Another …Respondent(s) J U D G M E N T

GANGULY, J.

1. Leave granted.

2. These appeals have been filed by the Chief Information Commissioner, Manipur and one Mr. Wahangbam Joykumar impugning the judgment dated 29th July 2010 passed by the High Court in Writ Appeal Nos. 11 and 12 of 2008 in connection with two Writ Petition No.733 of 2007 and Writ Petition 1

 No. 478 of 2007. The material facts giving rise to the controversy in this case can be summarized as follows:

3. Appellant No.2 filed an application dated 9th February, 2007 under Section 6 of the Right to Information Act ("Act") for obtaining information from the State Information Officer relating to magisterial enquiries initiated by the Govt. of Manipur from 1980-2006. As the application under Section 6 received no response, appellant No. 2 filed a complaint under Section 18 of the Act before the State Chief Information Commissioner, who by an order dated 30th May, 2007 directed respondent No. 2 to furnish the information within 15 days. The said direction was challenged by the State by filing a Writ Petition.

4. The second complaint dated 19th May, 2007 was filed by the appellant No. 2 on 19th May, 2007 for obtaining similar information for the period between 1980 – March 2007. As no response was 2

 received this time also, appellant No. 2 again filed a complaint under Section 18 and the same was disposed of by an order dated 14th August, 2007 directing disclosure of the information sought for within 15 days. That order was also challenged by way of a Writ Petition by the respondents.

5. Both the Writ Petitions were heard together and were dismissed by a common order dated 16th November, 2007 by learned Single Judge of the High Court by inter alia upholding the order of the Commissioner. The Writ Appeal came to be filed against both the judgments and were disposed of by the impugned order dated 29th July 2010. By the impugned order, the High Court held that under Section 18 of the Act the Commissioner has no power to direct the respondent to furnish the information and further held that such a power has already been conferred under Section 19(8) of the Act on the basis of an exercise under Section 19 only. The Division Bench further came to hold that the direction to furnish information is without 3

 jurisdiction and directed the Commissioner to dispose of the complaints in accordance with law.

6. Before dealing with controversy in this case, let us consider the object and purpose of the Act and the evolving mosaic of jurisprudential thinking which virtually led to its enactment in 2005.

7. As its preamble shows the Act was enacted to promote transparency and accountability in the working of every public authority in order to strengthen the core constitutional values of a democratic republic. It is clear that the Parliament enacted the said Act keeping in mind the rights of an informed citizenry in which transparency of information is vital in curbing corruption and making the Government and its instrumentalities accountable. The Act is meant to harmonise the conflicting interests of Government to preserve the confidentiality of sensitive information with the right of citizens to know the functioning of the governmental process in such a 4

 way as to preserve the paramountcy of the democratic ideal.

8. The preamble would obviously show that the Act is based on the concept of an open society.

9. On the emerging concept of an `open Government’, about more than three decades ago, the Constitution Bench of this Court in The State of Uttar Pradesh v. Raj Narain & others – AIR 1975 SC 865 speaking through Justice Mathew held:

"…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. The 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. … To cover with veil of secrecy, the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired."

(para 74, page 884)

5

10. Another Constitution Bench in S.P.Gupta & Ors. v. President of India and Ors. (AIR 1982 SC 149) relying on the ratio in Raj Narain (supra) held: "…The concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to the functioning of Government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands. The approach of the court must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest, bearing in mind all the time that disclosure also serves an important aspect of public interest…" (para 66, page 234)

11. It is, therefore, clear from the ratio in the above decisions of the Constitution Bench of this Court that the right to information, which is basically founded on the right to know, is an intrinsic part of the fundamental right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution. The said Act was, 6

 thus, enacted to consolidate the fundamental right of free speech.

12. In Secretary, Ministry of Information & Broadcasting, Govt. of India and Ors. v. Cricket Association of Bengal and Ors. – (1995) 2 SCC 161, this Court also held that right to acquire information and to disseminate it is an intrinsic component of freedom of speech and expression. (See para 43 page 213 of the report).

13. Again in Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Bombay Pvt. Ltd. & others – (1988) 4 SCC 592 this Court recognised that the Right to Information is a fundamental right under Article 21 of the Constitution.

14. This Court speaking through Justice Sabyasachi Mukharji, as His Lordship then was, held:

"…We must remember that the people at large have a right to know in order to be able to take part in a participatory development in 7

 the industrial life and democracy. Right to know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age in our land under Article 21 of our Constitution. That right has reached new dimensions and urgency. That right puts greater responsibility upon those who take upon themselves the responsibility to inform." (para 34, page 613 of the report)

15. In People’s Union for Civil Liberties and Anr. v. Union of India and Ors. – (2004) 2 SCC 476 this Court reiterated, relying on the aforesaid judgments, that right to information is a facet of the right to freedom of "speech and expression" as contained in Article 19(1)(a) of the Constitution of India and also held that right to information is definitely a fundamental right. In coming to this conclusion, this Court traced the origin of the said right from the Universal Declaration of Human Rights, 1948 and also Article 19 of the International Covenant on Civil and Political Rights, which was ratified by India in 1978. This Court also found a similar enunciation of principle in the Declaration of European Convention for the Protection of Human Rights 8

 (1950) and found that the spirit of the Universal Declaration of 1948 is echoed in Article 19(1)(a) of the Constitution. (See paras 45, 46 & 47 at page 495 of the report)

16. The exercise of judicial discretion in favour of free speech is not only peculiar to our jurisprudence, the same is a part of the jurisprudence in all the countries which are governed by rule of law with an independent judiciary. In this connection, if we may quote what Lord Acton said in one of his speeches: "Everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity"

17. It is, therefore, clear that a society which adopts openness as a value of overarching significance not only permits its citizens a wide range of freedom of expression, it also goes 9

 further in actually opening up the deliberative process of the Government itself to the sunlight of public scrutiny.

18. Justice Frankfurter also opined:

"The ultimate foundation of a free society is the binding tie of cohesive sentiment. Such a sentiment is fostered by all those agencies of the mind and spirit which may serve to gather up the traditions of a people, transmit them from generation to generation, and thereby create that continuity of a treasured common life which constitutes a civilization. "We live by symbols." The flag is the symbol of our national unity, transcending all internal differences, however large, within the framework of the Constitution."

19. Actually the concept of active liberty, which is structured on free speech, means sharing of a nation’s sovereign authority among its people. Sovereignty involves the legitimacy of a governmental action. And a sharing of sovereign authority suggests intimate correlation between the functioning of the Government and common man’s knowledge of such functioning.

(Active Liberty by Stephen Breyer – page 15) 10

20. However, while considering the width and sweep of this right as well as its fundamental importance in a democratic republic, this Court is also conscious that such a right is subject to reasonable restrictions under Article 19(2) of the Constitution.

21. Thus note of caution has been sounded by this Court in Dinesh Trivedi, M.P. & Others v. Union of India & others – (1997) 4 SCC 306 where it has been held as follows:

"…Sunlight is the best disinfectant. But it is equally important to be alive to the dangers that lie ahead. It is important to realize that undue popular pressure brought to bear on decision makers in Government can have frightening side-effects. If every action taken by the political or executive functionary is transformed into a public controversy and made subject to an enquiry to soothe popular sentiments, it will undoubtedly have a chilling effect on the independence of the decision maker who may find it safer not to take any decision. It will paralyse the entire system and bring it to a grinding halt. So we have two conflicting situations almost enigmatic and we think the answer is to maintain a fine balance which would serve public interest."

11

 (para 19, page 314)

22. The Act has six Chapters and two Schedules. Right to Information has been defined under Section 2(j) of the Act to mean as follows:

"(j) "right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to-

(i) inspection of work, documents, records; (ii) taking notes, extracts, or certified copies of documents or records;

(iii) taking certified samples of material; (iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device;"

23. Right to Information has also been statutorily recognised under Section 3 of the Act as follows: "3. Right to information.- Subject to the provisions of this Act, all citizens shall have the right to information."

12

24. Section 6 in this connection is very crucial. Under Section 6 a person, who desires to obtain any information under this Act, shall make a request in writing or through electronic means in English or Hindi or in the official language of the area in which the application is being made, accompanying such fee as may be prescribed. Such request may be made to the Central Public Information Officer or State Public Information Officer, as the case may be, or to the Central Assistant Public Information Officer or State Assistant Public Information Officer. In making the said request the applicant is not required to give any reason for obtaining the information or any other personal details excepting those which are necessary for contacting him.

25. It is quite interesting to note that even though under Section 3 of the Act right of all citizens, to receive information, is statutorily recognised but Section 6 gives the said right to any person. 13

 Therefore, Section 6, in a sense, is wider in its ambit than Section 3.

26. After such a request for information is made, the primary obligation of consideration of the request is of the Public Information Officer as provided under Section 7. Such request has to be disposed of as expeditiously as possible. In any case within 30 days from the date of receipt of the request either the information shall be provided or the same may be rejected for any of the reasons provided under Sections 8 and 9. The proviso to Section 7 makes it clear that when it concerns the life or liberty of a person, the information shall be provided within forty-eight hours of the receipt of the request. Sub-section (2) of Section 7 makes it clear that if the Central Public Information Officer or the State Public Information Officer, as the case may be, fails to give the information, specified in sub-section (1), within a period of 30 days it shall be deemed that such request has been rejected. Sub-section 14

 (3) of Section 7 provides for payment of further fees representing the cost of information to be paid by the person concerned. There are various sub-sections in Section 7 with which we are not concerned. However, Sub-section (8) of Section 7 is important in connection with the present case. Sub-section (8) of Section 7 provides:

"(8) Where a request has been rejected under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be shall communicate to the person making the request,-

(i) The reasons for such rejection;

(ii) the period within which an appeal against such rejection may be preferred; and

(iii)the particulars of the appellate authority.

27. Sections 8 and 9 enumerate the grounds of exemption from disclosure of information and also grounds for rejection of request in respect of some items of information respectively. Section 11 deals with third party information with which we are not concerned in this case.

15

28. The question which falls for decision in this case is the jurisdiction, if any, of the Information Commissioner under Section 18 in directing disclosure of information. In the impugned judgment of the Division Bench, the High Court held that the Chief Information Commissioner acted beyond his jurisdiction by passing the impugned decision dated 30th May, 2007 and 14th August, 2007. The Division Bench also held that under Section 18 of the Act the State Information Commissioner is not empowered to pass a direction to the State Information Officer for furnishing the information sought for by the complainant.

29. If we look at Section 18 of the Act it appears that the powers under Section 18 have been categorized under clauses (a) to (f) of Section 18(1). Under clauses (a) to (f) of Section 18(1) of the Act the Central Information Commission or the State Information Commission, as the case may be, may receive and inquire into complaint of any person who has been refused access to any 16

 information requested under this Act [Section 18(1)(b)] or has been given incomplete, misleading or false information under the Act [Section 18(1)(e)] or has not been given a response to a request for information or access to information within time limits specified under the Act [Section 18(1)(c). We are not concerned with provision of Section 18(1)(a) or 18(1)(d) of the Act. Here we are concerned with the residuary provision under Section 18(1)(f) of the Act. Under Section 18(3) of the Act the Central Information Commission or State Information Commission, as the case may be, while inquiring into any matter in this Section has the same powers as are vested in a civil court while trying a suit in respect of certain matters specified in Section 18(3)(a) to (f). Under Section 18(4) which is a non-obstante clause, the Central Information Commission or the State Information Commission, as the case may be, may examine any record to which the Act applies and which is under the control of the public authority and such records cannot be 17

 withheld from it on any ground.

30. It has been contended before us by the respondent that under Section 18 of the Act the Central Information Commission or the State Information Commission has no power to provide access to the information which has been requested for by any person but which has been denied to him. The only order which can be passed by the Central Information Commission or the State Information Commission, as the case may be, under Section 18 is an order of penalty provided under Section 20. However, before such order is passed the Commissioner must be satisfied that the conduct of the Information Officer was not bona fide.

31. We uphold the said contention and do not find any error in the impugned judgment of the High court whereby it has been held that the Commissioner while entertaining a complaint under Section 18 of the said Act has no jurisdiction to pass an order providing for access to the information.

18

32. In the facts of the case, the appellant after having applied for information under Section 6 and then not having received any reply thereto, it must be deemed that he has been refused the information. The said situation is covered by Section 7 of the Act. The remedy for such a person who has been refused the information is provided under Section 19 of the Act. A reading of Section 19(1) of the Act makes it clear. Section 19(1) of the Act is set out below:-

"19. Appeal. - (1) Any person who, does not receive a decision within the time specified in sub-section (1) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or the State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or the State Public Information Officer as the case may be, in each public authority:

Provided that such officer may admit the appeal after the expiry of the period of thirty days if he or she is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time." 19

33. A second appeal is also provided under sub-section (3) of Section 19. Section 19(3) is also set out below:-

"(3) A second appeal against the decision under sub-section (1) shall lie within ninety days from the date on which the decision should have been made or was actually received, with the Central Information Commission or the State Information Commission:

Provided that the Central Information Commission or the State Information Commission, as the case may be, may admit the appeal after the expiry of the period of ninety days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time."

34. Section 19(4) deals with procedure relating to information of a third party. Sections 19(5) and 19(6) are procedural in nature. Under Section 19(8) the power of the Information Commission has been specifically mentioned. Those powers are as follows:-

"19(8). In its decision, the Central Information Commission or State Information Commission, as the case may be, has the power to,--

(a) require the public authority to take any such steps as may be necessary to secure 20

 compliance with the provisions of this Act, including--

(i) by providing access to information, if so requested, in a particular form;

(ii) by appointing a Central Public Information Officer or State Public Information Officer, as the case may be;

(iii) by publishing certain information or categories of information;

(iv) by making necessary changes to its practices in relation to the maintenance, management and destruction of records;

(v) by enhancing the provision of training on the right to information for its officials; (vi) by providing it with an annual report in compliance with clause (b) of sub-section (1) of section 4;

(b) require the public authority to compensate the complainant for any loss or other detriment suffered;

(c) impose any of the penalties provided under this Act;

(d) reject the application."

35. The procedure for hearing the appeals have been framed in exercise of power under clauses (e) and (f) of sub-section (2) of Section 27 of the Act. They are called the Central Information Commission (Appeal Procedure) Rules, 2005. The procedure of 21

 deciding the appeals is laid down in Rule 5 of the said Rules. Therefore, the procedure contemplated under Section 18 and Section 19 of the said Act is substantially different. The nature of the power under Section 18 is supervisory in character whereas the procedure under Section 19 is an appellate procedure and a person who is aggrieved by refusal in receiving the information which he has sought for can only seek redress in the manner provided in the statute, namely, by following the procedure under Section 19. This Court is, therefore, of the opinion that Section 7 read with Section 19 provides a complete statutory mechanism to a person who is aggrieved by refusal to receive information. Such person has to get the information by following the aforesaid statutory provisions. The contention of the appellant that information can be accessed through Section 18 is contrary to the express provision of Section 19 of the Act. It is well known when a procedure is laid down statutorily and there is no challenge to the 22

 said statutory procedure the Court should not, in the name of interpretation, lay down a procedure which is contrary to the express statutory provision. It is a time honoured principle as early as from the decision in Taylor v. Taylor [(1876) 1 Ch. D. 426] that where statute provides for something to be done in a particular manner it can be done in that manner alone and all other modes of performance are necessarily forbidden. This principle has been followed by the Judicial Committee of the Privy Council in Nazir Ahmad v. Emperor [AIR 1936 PC 253(1)] and also by this Court in Deep Chand v. State of Rajasthan – [AIR 1961 SC 1527, (para 9)] and also in State of U.P. v. Singhara Singh reported in AIR 1964 SC 358 (para 8).

36. This Court accepts the argument of the appellant that any other construction would render the provision of Section 19(8) of the Act totally redundant. It is one of the well known canons of interpretation that no statute should be 23

 interpreted in such a manner as to render a part of it redundant or surplusage.

37. We are of the view that Sections 18 and 19 of the Act serve two different purposes and lay down two different procedures and they provide two different remedies. One cannot be a substitute for the other.

38. It may be that sometime in statute words are used by way of abundant caution. The same is not the position here. Here a completely different procedure has been enacted under Section 19. If the interpretation advanced by the learned counsel for the respondent is accepted in that case Section 19 will become unworkable and especially Section 19(8) will be rendered a surplusage. Such an interpretation is totally opposed to the fundamental canons of construction. Reference in this connection may be made to the decision of this Court in Aswini Kumar Ghose and another v. Arabinda Bose and another – AIR 1952 SC 369. At 24

 page 377 of the report Chief Justice Patanjali Sastri had laid down:

"It is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute".

39. Same was the opinion of Justice Jagannadhadas in Rao Shiv Bahadur Singh and another v. State of U.P. – AIR 1953 SC 394 at page 397:

"It is incumbent on the court to avoid a construction, if reasonably permissible on the language, which would render a part of the statute devoid of any meaning or application".

40. Justice Das Gupta in J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. State of Uttar Pradesh and others – AIR 1961 SC 1170 at page 1174 virtually reiterated the same principles in the following words:

"the courts always presume that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect".

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41. It is well-known that the legislature does not waste words or say anything in vain or for no purpose. Thus a construction which leads to redundancy of a portion of the statute cannot be accepted in the absence of compelling reasons. In the instant case there is no compelling reason to accept the construction put forward by the respondents.

42. Apart from that the procedure under Section 19 of the Act, when compared to Section 18, has several safeguards for protecting the interest of the person who has been refused the information he has sought. Section 19(5), in this connection, may be referred to. Section 19(5) puts the onus to justify the denial of request on the information officer. Therefore, it is for the officer to justify the denial. There is no such safeguard in Section 18. Apart from that the procedure under Section 19 is a time bound one but no limit is 26

 prescribed under Section 18. So out of the two procedures, between Section 18 and Section 19, the one under Section 19 is more beneficial to a person who has been denied access to information.

43. There is another aspect also. The procedure under Section 19 is an appellate procedure. A right of appeal is always a creature of statute. A right of appeal is a right of entering a superior forum for invoking its aid and interposition to correct errors of the inferior forum. It is a very valuable right. Therefore, when the statute confers such a right of appeal that must be exercised by a person who is aggrieved by reason of refusal to be furnished with the information. In that view of the matter this Court does not find any error in the impugned judgment of the Division Bench. In the penultimate paragraph the Division Bench has directed the Information Commissioner, Manipur to dispose of the complaints of the respondent no.2 in accordance with law as expeditiously as possible.

27

44. This Court, therefore, directs the appellants to file appeals under Section 19 of the Act in respect of two requests by them for obtaining information vide applications dated 9.2.2007 and 19.5.2007 within a period of four weeks from today. If such an appeal is filed following the statutory procedure by the appellants, the same should be considered on merits by the appellate authority without insisting on the period of limitation.

45. However, one aspect is still required to be clarified. This Court makes it clear that the notification dated 15.10.2005 which has been brought on record by the learned counsel for the respondent vide I.A. No.1 of 2011 has been perused by the Court. By virtue of the said notification issued under Section 24 of the Act, the Government of Manipur has notified the exemption of certain organizations of the State Government from the purview of the said Act. This Court makes it clear 28

 that those notifications cannot apply retrospectively. Apart from that the same exemption does not cover allegations of corruption and human right violations. The right of the respondents to get the information in question must be decided on the basis of the law as it stood on the date when the request was made. Such right cannot be defeated on the basis of a notification if issued subsequently to time when the controversy about the right to get information is pending before the Court. Section 24 of the Act does not have any retrospective operation. Therefore, no notification issued in exercise of the power under Section 24 can be given retrospective effect and especially so in view of the object and purpose of the Act which has an inherent human right content.

46. The appeals which the respondents have been given liberty to file, if filed within the time specified, will be decided in accordance with Section 19 of the Act and as early as possible, 29

 preferably within three months of their filing. With these directions both the appeals are disposed of.

47. There will be no order as to costs. …………………..J.

(ASOK KUMAR GANGULY)

…………………..J.

New Delhi (GYAN SUDHA MISRA) December 12, 2011

Section 8(2) of the RTI Act mandates that even where disclosure of information is protected by the
exemptions under Section 8(1) of the RTI Act, if public interest in disclosure outweighs the harm to
such protected interests, the information must be disclosed under the RTI Act. There is no requirement
for the existence of any public interest to be established when seeking or giving information. However,
if an exemption applies, then it must be considered whether the public interest in disclosure outweighs
the harm to the protected interests.
Page 3 of 5According to P. Ramanatha Aiyar’s, The Law Lexicon (2
nd
edition; Reprint 2007) at page 1557,
“public interest” ‘means those interests which concern the public at large’. Banks and financial
institutions in India heavily finance various industries on a routinely basis. However, it is a fact that
large sums of such amounts are sometimes not recovered. In some cases, loans availed of are not
repaid despite the fact that the industrialist(s) may actually be in a financial position to pay. Where
financial assistance is given to industries by banks, in the absence of financial liquidity, it would result
in a blockade of large funds creating circumstances that would retard socio- economic growth of the
Nation.
At this stage the Commission would like to quote Thomas J of the High Court of New Zealand 1995,
‘The primary foundation for insisting upon openness in government rests upon the sovereignty of the
people. Under a democracy, parliament is “supreme”, in the sense that term is used in the phrase
“parliamentary supremacy”, but the people remain sovereign. They enjoy the ultimate power which
their sovereignty confers. But the people cannot undertake the machinery of government. That task is
delegated to their elected representatives …
… the government can be perceived as the agent or fiduciary of the people, performing the task and
exercising the powers of government which have been devolved to it in trust for the people.
… the information held by government is essentially the people’s information being held on their
behalf pursuant to this devolution of authority. … The people’s sovereignty ultimately determines their
right to insist upon openness in government’
I wish government and its instrumentalities would remember that all information held by them is
owned by Citizens, who are sovereign. Further, it is often seen that banks and financial institutions
continue to provide loans to industrialists despite their default in repayment of an earlier loan. The
Supreme Court of India in U. P. Financial Corporation v. Gem Cap India Pvt. Ltd. AIR 1993 SC 1435
has noted that “Promoting industrialisation at the cost of public funds does not serve the public
interest; it merely amounts to transferring public money to private account”. Such practices have led
citizens to believe that defaulters can get away and play fraud on public funds. There is no doubt that
information regarding top industrialists who have defaulted in repayment of loans must be brought to
the citizens’ knowledge; there is certainly a larger public interest that would be served on disclosure of
the same. In fact, information about industrialists who are loan defaulters of the country may put
pressure on such persons to pay their dues. This would have the impact of alerting Citizens about those
who are defaulting in payments and could also have some impact in shaming them. RBI had by its
circular DBOD No.BC/CIS/47/20.16.002/94 dated April 23, 1994 directed all banks to send a report
on their defaulters, which it would share with all banks and financial institutions, with the following
objectives:
1. To alert banks and financial institutions (FIs) and to put them on guard against borrowers who
have defaulted in their dues to lending institutions.
2. To make public the names of the borrowers who have defaulted and against whom suits have
been filed by banks/FIs.
Many Revenue departments publish lists of defaulters and All India Bank Employees Association has
also published list of Bank defaulters. It would be relevant to rely on the observations of the Supreme
Court of India in its landmark decision in Mardia Chemicals Ltd. v. Union of India (decided on
08/04/2004). The Supreme Court of India was considering the validity of the SARFAESI Act and
recovery of ‘non- performing assets’ by banks and financial institutions in India. While discussing
whether a private contract between the borrower and the financing institution/ bank can be interfered
with, the Court observed:
Page 4 of 5“…it may be observed that though the transaction may have a character of a private contract
yet the question of great importance behind such transactions as a whole having far
reaching effect on the economy of the country cannot be ignored, purely restricting it to
individual transactions more particularly when financing is through banks and financial
institutions utilizing the money of the people in general namely, the depositors in the banks
and public money at the disposal of the financial institutions. Therefore, wherever public
interest to such a large extent is involved and it may become necessary to achieve an object
which serves the public purposes, individual rights may have to give way. Public interest has
always been considered to be above the private interest. Interest of an individual may, to
some extent, be affected but it cannot have the potential of taking over the public interest
having an impact in the socio-economic drive of the country.” (Emphasis added)
There are times when experts make mistakes, other times when corruption influences decisions. It is
dangerous to put complete faith in the judgment of a few wise people to alert everyone. Democracy
requires reducing inequality of opportunity. Asymmetry of information deprives the citizens of an
opportunity to take proper decisions. The Commission is aware that information on defaulters is being
shared by Reserve Bank with an organisation called CIBIL. In such a situation, it is difficult to
understand the reluctance to share this information with citizens using RTI. RBI’s circular of 1994,-
mentioned above,- infact appears to promise to share this information suo moto with the public.
In view of the arguments given above, the Commission is of the considered view that the details of
defaulters of public sector banks should be revealed since it would be in larger public interest.
Revealing these would serve the object of reining in such defaulters, warning Citizens about those who
they should stay away from in terms of investments and perhaps shaming such persons/entities. This
could lead to safeguarding the economic and moral interests of the Nation. The Commission is
convinced that the benefits accruing to the economic and moral fibre of the Country, far outweigh any
damage to the fiduciary relationship of bankers and their customers if the details of the top defaulters
are disclosed.
Hence, in view of Section 8(2) of the RTI Act, the Commission rules that information on query
2(b) must be provided to the Appellant, since there is a larger public interest in disclosure.
The Commission also directs the Governor, RBI to display this information on its website, in
fulfillment of its obligations under Section 4 (1) (b) (xvii) of the RTI Act. This direction is being given
under the Commission’s powers under Section 19 (8) (a) (iii)
The Appeal is allowed.
The PIO shall provide the complete information as per records on queries 2(b) and 2(c)
to the Appellant before 10 December 2011.
The Commission also directs the Governor, RBI to display this information on its
website, in fulfillment of its obligations under Section 4 (1) (b) (xvii) of the RTI Act.
This direction is being given under the Commission’s powers under Section 19 (8) (a)
(iii). This should be done before 31 December, 2011 and updated each year.

Notice of this decision be given free of cost to the parties.
Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.

Shailesh Gandhi
Information Commissioner
15 November 2011
(In any correspondence on this decision, mention the complete decision number.)(BK)
Page 5 of 5

By Vikas SN on Feb 21st, 2012

As expected, the Indian Government is reportedly booting out Datawind from the Aakash tablet project, and is planning to assemble the tablet on its own, while retaining the same price tag of Rs 2250, reports Livemint. The report quotes Communications & IT Minister Kapil Sibal, who told PTI that the government has now roped in others including PSUs such as C-DAC and ITI, after it encountered problems dealing with Datawind, to manufacture a completely indigenous product. The statement contradicts the government’s earlier claim that the tablet was completely indigenous.

The Indian government had assigned a contract to Datawind to manufacture 100,000 tablets at Rs 1750 ($35) per unit. However, the report points out that Datawind was able to deliver only 10,000 tablets to IIT Jodhpur, while several tablets were reportedly sold in the open market, since it was available for online purchase at Rs 2500 from December 2011 and was sold out within a week of its launch.

Quoting two unnamed senior government officials, the report states that the government is now planning to launch a revamped tablet at the same price tag. The tablet will apparently be completely indigenous and supervised by a committee comprising of members from the Centre for Development of Advanced Computing (C-DAC), Department of Information Technology, IITs including IIT Kanpur, IIT Mumbai, IIT Chennai and IIT Jodhpur, and a few public sector units. The immediate need for tablets, will however be managed by Bharat Electronics Ltd (BEL) and Electronics Corp. of India Ltd.

While this announcement seems promising, we hope that the government doesn’t just focus on compromising on the tablet’s features and specs to bring down its price. After all, a $35 paperweight wouldn’t serve any purpose.

There has been a lot of ambiguity surrounding the number of tablets delivered by Datawind, on the specifications of the next version and on the assignment of responsibility for tendering. We’ve recently filed a Right To Information (RTI) request with Ministry of Human Resource Development, to gather more information on the Aakash Tablet project, to get some clarity. Here are the questions we’ve asked:

How many Aakash Tablets have so far been delivered to the Ministry of HRD and/or IIT Rajasthan as of 15th February 2012. Please provide us with monthwise information, beginning with the month in which the first Aakash Tablet was delivered.
The list of educational institutions to which Aakash Tablets have been distributed, and the total number of Tablets that have been issued to (or via) each of these institutions.
How many students in each educational institution have been issued the Aakash Tablet?
How much money has so far been allocated to the purchase of the Aakash Tablet and how much has been paid to Datawind? Please provide information on the dates on which the payments were made.
Please provide us with a copy of the request for proposal (RFP)/tender document for the Aakash Tablet
Please provide us with copies of the technical and financial documents submitted by Datawind when applying for the Aakash Tablet tender
Please provide us with a list of applicants for the RFP related to the Aakash Tablet
Please provide us with a timeline for delivery of Aakash tablets, and information on penalties if deadlines are not met
Information on steps being taken to ensure that students who purchase government subsidised Aakash Tablets do not sell them in the open market
What is the number of pieces of Aakash Tablets ordered (and delivered) by the Government till date and the price per tablet at which the order has been placed?
What is the number of pieces of Aakash that the Government or Ministry of HRD has contracted to buy in total over time – please provide details of the number of pieces to be bought in each lot and deadlines for purchase of each lot and the purchase price agreed for each lot.
What percentage of the components in the bill of materials of Aakash is manufactured in India and what percentage is manufactured outside India?
Is the supplier contractually obliged to manufacture a certain proportion of components within India by a certain time? If so, what percentage and by when?
What are the warranty terms that the supplier has agreed including duration of warranty, replacement, repair, parts and labour?
Is the supplier required to set up service and support centres across India? If so how many service centres and in which locations and by when?
Does the Government of India, or any State Government or any other Government organisation own any intellectual property rights relating to the Aakash tablet? If not, who owns the intellectual property rights to the design of Aakash?
Does the Government of India, or any State Government or any other Government organisation own the brand name Aakash? If not, who owns the brand name “Aakash”?
Has any surveillance software been installed on the Aakash Tablet?
What is the criteria for selection of third party applications to be preloaded? Please provide us with a list of applications and the conditions under which they have been included.
Is there any custom built application or software pre-loaded on aakash? Who owns the source code of this custom software?
Have any tenders been floated to develop digital educational material specifically for aakash? If yes, please provide us with a copy.
We’ll do a follow-up post as soon as we receive a reply from the Ministry.
Aakash Project Timeline:

Feb 3, 2012: Uncertainty Around The Future Of The Aakash Tablet
Dec 15, 2011: Aakash Tablet Available Online for Rs 2500; Ubislate 7 in Jan 2012
November 2, 2011: What They’re Saying About The Aakash Tablet
October 5, 2011: Indian Govt’s $35 Tablet Finally Launches As Aakash; Costs Rs 2250
Sep 29, 2011: Indian Govt Expected To Launch $35 Tablet On 5th October
Jan 20, 2011: $35 Laptop Still A Distant Dream; HCL’s Tender Cancelled: Report
Sep 10, 2010: The Truth about $35 Android Tablet from Indian Government(AndroidOS.in)
Sep 03, 2010: HCL Wins Contract For 100,000 $35 Tablets For India
Aug 12, 2010: India To Distribute 1 Million Units Of Its $35 Tablet In 2011; Demo
Aug 09, 2010: OLPC India Now Targets 1M XOs In 2010; Negroponte Writes About $35 Tablet
Jul 23, 2010: India Government Develops $35 Tablet; What Can It Do? Features, How It Was Built
Feb 04, 2009: The $10 Laptop: A Myth

In December 2011, the Mumbai police chief Arup Patnaik shunted out 34 clerks from the most lucrative and money making branch in the city police, the licensing department, to replace them with 16 police constables.

Patnaik took the decision in a review of departments, where he learnt that 1,700 files to obtain licences had been hidden or deliberately kept pending since the past three years for reasons unknown.

Surprisingly, by February 2012, the pendency of files had come down to a mere 70. In fact, sources said the step was being cited as a major step to curb corruption in the police department.

One of the most lucrative postings in the police department, the licensing department deals with various kinds of licences, including one to serve liquor in permit rooms, construction no-objection certificates, cyber-cafes, video-parlours, premise licence for disc jockeys, discos, orchestras and theatre, arms licence, hotel licence, performance licence, fire-crackers licence, loudspeaker licence, parking licence and swimming pool licences, all land here for processing.

“It’s mandatory to obtain a police licence for all these works and businesses,” said a police officer.

“It became evident to the commissioner that the licensing staff wasn’t doing its work properly after he learnt that licences had been issued to people, who wanted to own a firearm as a showpiece, while many a file had been kept pending for unknown reasons,” said a senior officer. Following this, 16 constables were given the control and command of the department.

“Since the clerical staff was not well versed with the computers, they would shift the work on the constables anyways. Also, there were other issues like the clerks, working on a five-day week, would take all the government holidays, leave after 5pm, overall resulting in pendency of work,” said an officer of the licensing department requesting anonymity.

The licensing department is now monitored by commissioner and joint commissioner of police (law and order).

28.12.2011

Dear Friends of RTI:

Greetings from PCGT !!!
Herewith, article of December, 45th since I started mailing/ forwarding in April 2008.

DRAFT for CITIZEN’S CHARTER for CIC, proposed by Shailesh Gandhi Excerpts reproduced hereunder:
CENTRAL INFORMATION COMMISSION, NEW DELHI:

? Our Key Commitments to the Stakeholders of RTI Act:

? Secure every citizen?s Right to Information by giving full effect to the provisions of the

RTI Act as mandated by the RTI Act.

? Ensure fair and time- bound disposal of Appeals and Complaints filed before CIC.

? Facilitate suo moto disclosure of most information as per Section 4 and updation of the same routinely by public authorities.
? Services to attain Vision and Mission Statement:
? All Appeals and Complaints filed under Section 18 and 19 of the RTI Act will be decide as expeditiously as possible.
? Appellants and complainants will be given acknowledgement of their appeals or complaints within 30 days.
Steps will be taken to ensure that every public authority including CIC is disclosing the prescribed categories of information suo moto. The CIC will monitor whether such information is being updated periodically.
? Recommendations will be made to public authorities to take steps for confirming with, or promoting the spirit of the RTI Act. This may be done by CIC by way of its decisions, by holding meetings, seminars, etc.
? Efficient work practices will be adopted within every office of CIC. This includes, among others, regular entry and updation of relevant records, speedier movement of files/ correspondence, proper maintenance of files/ documents, response to communications received by CIC in a reasonable time.
? Helpline facilities will be available on all workings days during working hours to assist in relation to matters arising out of the RTI Act.
? Additional Commitments:
? The working and functions of CIC must be subject to systematic and timely review by citizens. A system of inviting suggestions, comments or inputs from citizens by way of a suggestion box or other mean will be put in place. CIC will take cognizance of the feedback received and implement those measures that may improve its working and functioning. CIC will appoint a Advisory Council consisting of Citizen?s representatives and Government officers to suggest ways to provide better services and to evaluate its working with respect to its Citizen?s Charter.
? CIC will strive to increase awareness among citizens, including government officers, about the RTI Act. This may be done by putting information on CIC?s website, notice boards, distributing pamphlets.
? A Complaint Cell will be set up in CIC to take cognizance of all complaints against the Commission or its staff. The Cell which will send a report to the complainant within 60 days of action taken on the complaint.
?Expectations from Citizens:
? Citizens would provide inputs for information which should be available from various public authorities suo moto under Section 4 of the RTI Act.
? Citizens must provide valuable feedback on the working and functioning of CIC to enable us to correct our mistakes and improve.

Objectives to be achieved by 2015:

? To ensure that over 95% of Appeals and Complaints are adjudicated within 120 day of reaching CIC.
? Ensure that non- compliance of CIC?s orders is brought to less than 5%.

? All public authorities are routinely complying with their obligation to disclose certain categories of information suo moto.
? Digitization of records and use of E- processes in the working of CIC.

An interesting information on Jails in India

? Total Number of Jails in the country: 1,276

? Total Capacity of Jails in the Country: 2,77,304

? Total Number of Jail Inmates as on 31.12.2010: 4,76,396

With regards,

Narayan Varma
Trustee PCGT

RTI Clinics being run by four organizations:

BCAS FOUNDATION

7, Jolly Bhavan No. 2, New Marine Lines, Mumbai – 400 020
Email: bca@bcasonline.org Visit us at www.bcasonline.org
runs RTI Clinic on 2nd, 3rd & 4th Saturdays every month between 11.00 a.m. to
13.00 p.m.
• For more details and fixing an appointment call 61377600

PUBLIC CONCERN FOR GOVERNANCE TRUST (PCGT)

B/2 Mahalaxmi Chambers, 22, Bhulabhai Desai Road, Mumbai – 400 026
Email: publicconcern@gmail.com Visit us at www.pcgt.org
runs RTI Clinic on every Tuesday between 04.00 p.m. to 5.30 p.m. .
RTI Helpline No – 93 2288 2288
• For more details and fixing an appointment call 2352 6426

GIANTS INTERNATIONAL CHARITABLE TRUST

2nd floor, Orient Club Building, 9, Chowpatty Sea Face, Mumbai – 400 007
Email:giantwld@mtnl.net.in
Visit us at www.giantsinternational.org
runs RTI Clinic on 1st & 3rd Mondays of every month between 4.30 p.m. to 6.30 p.m.
• For more details and fixing an appointment call 2367 9698

INDIAN MERCHANT’S CHAMBER

IMC Building,Churchgate, Mumbai – 400020
runs RTI clinic on 1st & 3rd Wednesday of every month from 4 .00pm to 6.00 pm.
• For more details and fixing an appointment call 22046633

Please visit any of these clinics

Right to Information
Narayan Varma
Chartered Accountant

Part A: Orders of Courts

? Education: Section 8(1)(e) of the RTI Act:

Shaunak Satya appeared in CA final examination of November, 2007. He was not successful and hence applied for verification of marks. He was informed that there was no discrepancy in evaluation of answer scripts. He then filed application under the RTI Act seeking information under 13 heads:

Among them 3 being.
Instructions issued to the examiners, and moderators oral as well written, if any. Model answers, if any, given to examiners and moderators.
Number of times that the Council has revised the marks of any candidate, or any class of candidates, in accordance with regulation 39 (2) of the Chartered Accountants Regulations, 1988, the criteria used for such discretion, the quantum of such revision, the authority that decides such discretion, and the number of students along with the quantum of revision affected by such revision in the last 5 exams, held at all levels (i.e. PE1/PE2/PCC/CPE/Final with break up).

ICAI responded by replying all 13 points. Among them 3 being:

Evaluation of answer books is carried out in terms of the guidance including instructions provided by Head Examiners appointed for each subject. Subsequently, a review thereof is undertaken by moderators.
Solutions are given in confidence to examiners for the purpose of evaluation.
Service of moderators is utilised in the context of paper setting.
The Examination Committee, in terms of Regulation 39 (2), has the authority to revise the marks based on the findings of the Head Examiners and incidental information in the knowledge of the Examination Committee, in its best wisdom. Since the details sought are highly confidential in nature and there is no larger public interest warrants disclosure, the same is denied under Section 8 (1)(e) of the Right to Information Act, 2005.

He was not satisfied with the reply and filed an appeal to First Appellate Authority. Same was dismissed. Then he filed the second appeal in the office of CIC. CIC by Order dated 23.12.2008 rejected the appeal in regard to queries 3, 5 and 13 (as also Query 2) while directing the disclosure of information in regard to the other questions.

Feeling aggrieved by the rejection of information sought under items 3, 5 and 13, the student approached the Bombay High Court by filing a writ petition. The High Court allowed the said petition by order dated 30.11.2010 and directed the Institute to supply the information in regard to queries 3, 5 and 13, on the following reasoning:

According to the Central Information Commission the solutions which have been supplied by the Board to the examiners are given in confidence and therefore, they are entitled to protection under Section 8(1) (e) of the RTI Act. Section 9(1)(e) does not protect confidential information and the claim of intellectual property has not been made by the Respondent No. 2 anywhere. In the reply it is suggested that the suggested answers are published and sold in open market by the Board. Therefore, there can be no confidentiality about the suggested answers. It is no where explained what is the difference between the suggested answers and the solutions. In the opinion of the court, the orders of both Authorities in this respect suffer from non-application of mind and therefore are liable to be set aside. The Court held that the right given under the Right to Information Act has been dealt with by the Authorities under that Act in most casual manner without properly applying their minds to the material on record. In our opinion, therefore, information sought by queries No. 3, 5 and 13 could not have been denied by the Authorities to the Petitioner. The principal defence of the Respondent No.2 was that the information is confidential. Till the result of the examination is declared, the information sought by the petitioner has to be treated as confidential, but once the result is declared, in our opinion, that information cannot be treated as confidential. The Court held that nothing has been shown which would indicate that it was necessary to keep the information in relation to the examination which is over and the result of which was also declared as confidential.

The said Order of the High Court is challenged by ICAI in appeal by special leave. ICAI after elaborate submissions contended as under:
“The information sought as per queries (3) and (5) – that is, instructions and model answers, if any, issued to the examiners and moderators by ICAI cannot be disclosed as they are exempted from disclosure under Clauses (d) and (e) of Subsection (1) of Section 8 of RTI Act. It is submitted that the request for information is also liable to be rejected under Section 9 of the Act.” They also contended that in regard to query No. (13), whatever information was available had been furnished, apart from generally invoking Section 8 (1) (e) to claim exemption.

The Supreme Court after dealing with the queries under 3 heads as above concluded as under:

“ICAI submits that there should be an effective control and screening of applications for information by the competent authorities under the Act. We do not agree that first Respondent had indulged in improper use of RTI Act. His application is intended to bring about transparency and accountability in the functioning of ICAI. How far he is entitled to the information is a different issue. Examining bodies like ICAI should change their old mindsets and tune them to new regime of disclosure of maximum information. Public authorities should realise that in an era of transparency previous practices of unwarranted secrecy have no longer a place. Accountability and prevention of corruption is possible only through transparency. Attaining transparency no doubt would involve additional work with reference to maintaining records and furnishing information. Parliament has enacted the RTI Act providing access to information, after great debate and deliberations by the Civil Society and the Parliament. In its wisdom, the parliament has chosen to exempt only certain categories of information from disclosure and certain organizations from the applicability of the Act. As the examining bodies have not been exempted, and as the examination processes of examining bodies have not been exempted, the examining bodies will have to gear themselves to comply with the provisions of the RTI Act. Additional workload is not a defence. If there are practical insurmountable difficulties, it is open to the examining bodies to bring them to the notice of the government for consideration so that any changes to the Act can be deliberated upon. Be that as it may.”

“We however agree that it is necessary to make a distinction in regard to information intended to bring transparency, to improve accountability and to reduce corruption, falling under Section 4 (1) (b) and (c) and other information which may not have a bearing on accountability or reducing corruption. The competent authorities under the RTI Act will have to maintain a proper balance so that while achieving transparency, the demand for information does not reach unmanageable proportions affecting other public interest, which include efficient operation of public authorities and government, preservation of confidentially of sensitive information and optimum use of limited fiscal resources.”

“In the view of the above, this appeal is allowed in part and the order of the High Court is set aside and the order of the CIC is restored, subject to one modification in regard to query (13): ICAI to disclose to the first Respondent, the standard criteria, if any, relating to moderation, employed by it, for the purpose of making revisions under Regulation 39 (2).”

[The above decision was delivered on 02.09.2011: The Institute of Chartered
Accountants of India vs. Shaunak H. Satya & ors.]

Part B: The RTI Act,

Q & A with Chief CIC, Satyananda Mishra:

Q In the last few weeks, questions have been raised on certain quarters on the use of information culled out through RTI for settling personal scores. Do you think steps are required to correct this situation?

A I also read about that…hear about that…..but what is the misuse? If the law provides for disclosure of information and if it is disclosed, then why do you call it a misuse?

Q Investigating agencies have raised the issue that a majority of the RTI applications are filed to settle personal scores…..

A The law didn?t probably anticipate this. There is no such provision to prevent any class of information that is intended to be used in the manner in which you are saying. The RTI Act has outlined different situations in which the information should not be given – national security, strategic interest of India, foreign relation, economic stability
of India, commercial confidence, trade secrets, intellectual property rights, breach of privileges of Parliament, contempt of Court, smooth investigation and prosecution of offenders, privacy of individual and personal information. In all these circumstances, information should not be given. In the rest, information has to be given. In what way the information will be used is beyond law. If there are certain things that people feel can be put to misuse, well the law has no remedy for them.

Q Do you think there should be some deterrent mechanism in the law to curb misuse of
RTI and frivolous applications?

A. That will be a dangerous kind of a provision. Who will define what is frivolous? Whether the information will be put to any misuse or settle personal scores is subjective.

If such a clause comes, then in most of cases information officer would conclude it is frivolous. So the law will suffer. If we try to whittle down the law, then probably you would be able to stop one or two bad cases. But that will stop the flow of information.

Generally, this law has succeeded in bringing out the information. We should not be really short– sighted in this matter. It might initially appear to be a setback, but in the real sense it might not be a setback. While bringing the law, the government was well aware of what all it can do.

Now when the information is trickling, if you think the law is not good, it is not correct. I feel this is just a passing phase and people will mature in the use of RTI in coming times.
Citizens Right to Grievance Redress Bill, 2011 Draft Bill called as above is prepared by the Department of Administrative Reforms and Public Grievances.It is believed that:
Common man faces day-to-day hassles with regard to delivery of Public services and corruption in service delivery
Currently inadequate institutionalised mechanism to address these problems. Lok Pal Bill will not address these day-to-day Issues

Need for a Citizen’s Right to Grievance Redress Bill as part of a basket of measures

Bill contains 53 sections and Keyprovisions of the Bill are:

1. There will be a Citizens Charter, containing category of goods and services rendered by it, the time within which such goods or services be rendered.
2. Any violation of the Citizens Charter will result in time bound grievance redressal and also penalty / disciplinary action.
3. Bill can be enacted as a Central legislation under the concurrent list item 8 (actionable wrongs) and can cover:

a. Central Schemes and Central Government Departments
b. Provision of a platform to the States to make this a Grievance Redressal
Mechanism applicable State Schemes and Departments
4. Bill will incorporate the institution of Information and Facilitation Centre in all Public authorities to ensure that citizens can be facilitated and grievances are systematically recorded and tracked using telephone, Sms, web etc.
5. First level Redressal should be within concerned department as proposed. This should be done through a Grievance Redressal Officer in each department.
6. The first level redress/appeal will be to the Head of the Department of the Public authority.
7. Central / State level Grievance Commissions should be set up as second level appellate authorities.

Key features of the Bill are:

Statement of Obligations in Citizens Charter
Grievance Redress Officers
Head of Department to be Public Authority (First Appeal Level) Central & State Grievance Commissions
Action Taken Report (ATR)

Information and Facilitation Centres (IFCs) Penalty Provisions
Citizens Charter
Process of Complaints
Information Technology Framework
Tackling Corruptions.

Part C: Information On & Around

? RTI activist stabbed in Ahmadabad:
Another Tragedy

An RTI activist, known for his opposition to various illegal activities in Juhapura area of Ahmadabad was hacked to death. Nadeem Saiyed, 38, who was also an eyewitness in the Naroda Patia riots case, was stabbed 25 times with a butcher?s knife and axes.

The gruesome murder has once again sparked off a controversy about policing in the state. Saiyed was also suspected of being a police informer. He is believed to have informed senior police officers that the people who were arrested following a recent incident in which a police vehicle was torched while trying to rescue cows brought for slaughter in Juhapura, were not the real culprits.

The sources said that because of Saiyed?s past of exposing criminals, the real motive behind the murder could be of eliminating him from Juhapura for good.

RTI Impact:

Chief Minister Prithviraj Chavan said that he does not take decisions in haste as, “I am
aware that I have to face the Right to Information Act.”

A decade ago, there were no problems but now, one moves with caution. “There is
cautiousness in the administration. Nobody is willing to take a decision,” he added.

Post mortem Centre at JJ Hospital, Mumbai:

A STARTLING expose made by an ‘aam aadmi’ using the Right to Information Act, has revealed that the chief of postmortem centre at JJ Hospital has been neglecting his primary responsibility at the hospital and instead, has been running a private hospital in Badlapur. Moreover, he continues to derive benefits of the Non Practicing Allowance (NPA)while he is busy treating patients at his private hospital.

Fed up with the delay in securing an autopsy report of a deceased relative who was admitted at JJ hospital in April, Asad Patel, a resident of Jogeshwari, decided to investigate the reason for this delay.

Having decided to expose Rathod, Patel got admitted at the Rathod Hospital in Balapur on April 27, complaining of tension and chest pain. According to Patel, Dr. Rathod personally treated him and had carried out an ECG and a blood test. Patel was later discharged after paying Rs. 750.

After collecting various documents from Dr. Rathod?s hospital, Patel filed an RTI query, enquiring about Rathod?s presence in the hospital on April 27. Patel was in for a rude shock as the hospital authorities in their reply stated that Dr. Rathod was present at the hospital on April 27, and was even paid Rs. 7,368 as NPA.

Following this revelation, Patel lodged a complaint against Dr. Rathod on August 24 with
Health Minister Suresh Shetty, demanding action against the doctor.

“I have also learnt that Dr. Rathod visits the hospital just once a week and is bribing the clerks to mark his attendance for the remaining working days,” alleged Patel.

Penalty on PIOs:

The central Information Commission is handling babus with “Kid gloves” for not providing information within the prescribed timeframe or flouting rules of the Right to Information Act, statistics have revealed. Under the Act, the information commissioner can impose a penalty or order compensation and disciplinary action against erring public information officers.

Since 2006-07, the CIC has imposed penalties in only 648 cases (less than 1%) under the
Act, even though it has disposed of 75,284 appeals/complaints out of 94,209 since 2006-
07. Of these 648 cases, the CIC recovered penalties in only 532 cases in five years, amounting to around Rs.60 lakh. Thus, the CIC is yet to recover penalties in 18% cases.

The CIC sanctioned compensation in only 134 cases in six years. In 22 cases, disciplinary action against the chief public information officer (CPIO) was sanctioned.

Year wise applications received etc.

Year Received Disposed Of Disposal Rate
2006-07 6839 4074 59.57%
2007-08 11261 7722 68%
2008-09 15426 13322 66.36%
2009-10 22800 19482 85%
2010-11 37883 30684 80%

Part D: RTI & Success Stories

Mr. Dhiraj Rambhai’s success story

WHAT A SURPRISE! THINGS WHICH WERE NOT DONE IN 90 DAYS GOT DONE IN 9 MINUTES

Government departments which were working at lesiure at tortoise speed have started working at hare speed due to RTI ACT, 2005. Here is one more example.

Kanti Gada & Priti Gada stay at Mulund Vinanagar having business of plastic drum manufacturing.

They own a farm house in the outskirts of Mumbai at Asangaon district, Thane. On 5th June 2011 due to heavy rains the wires supplying electricity to their farm house got short circuited and the power supply to their farm house was cut as safety measures. After 2-3 days when the weather was normal Preeti Gada requested local MSEDCL office to restore the supply but no action was taken on their repeated complaints. They lodged the complaint in writing 5-6 times but it went to files only and their farm house remained in dark for almost three months. One fine day they read one of the success story of the RTI in Dhiraj Rambhia column „JAN JAGE TO SAVAR? on the RTI in Gujarati news paper MUMBAI SAMACHAR. Inspired by the column they approached TARUN MITRA MANDAL, Thane RTI guidance centre on 27th August. After listening to Preeti Gada?s problem, Thane centre volunteers prepared the RTI application asking for the information on (1) steps taken on Preetiben?s earlier complaints (2) the reasons recorded regarding delay in action on complaints (3) the name and designation of the officer responsible for
the delay in action. On 28th August, Priti Gada went to local MSEDL office to submit the application, When the officer in the office read the application his fuse got blown. He immediately pleaded to Priti Gada not to make the application and immediately phoned the concerened line men to connect the electric supply thus; action which was not taken for 90 days was done in 9 minutes.

Your feedback may be sent to rti@bcasonline.org/publicconcern@gmail.co

Bombay Chartered Accountant Journal, December 2011

31.1.2012

Dear Friends of RTI:

Greetings from PCGT !!!
Herewith, article of January 2012, 46th since I started mailing/ forwarding in April 2008.

Citizen ’s Charter

It is reported that, The ?aam admi‘may soon receive services, including grievance redressal, within specified timeframes. The Centre is initiating a process to evolve a citizen‘s charter for every Union government department despite the legislation concerned being stuck in political wrangling.
The cabinet secretariat is in discussion with Union ministries about citizen‘s/ client‘s charters to fix the services and timeline in which they should be delivered. Services rendered by the central government, such as environmental and other clearances and transferring funds to states could all become time-bound now.

It could revolutionize the delivery system at the Central by putting the onus of expediting services and grievance redressal on the babu-driven establishment. The ability to keep grievances and requests endlessly pending is seen as the main reason behind corruption, with
extraneous favours for officials emerging as the lubricant of the slothful machine.

The Centre‘s failed attempt to push through the legislation on grievance redressal in the just- concluded winter session of Parliament seems to have added urgency to the issue

With regards,

Narayan Varma
Trustee PCGT

Encl: Article for January 2012

RTI Clinics being run by four organizations:

BCAS FOUNDATION

7, Jolly Bhavan No. 2, New Marine Lines, Mumbai – 400 020
Email: bca@bcasonline.org Visit us at www.bcasonline.org
runs RTI Clinic on 2nd, 3rd & 4th Saturdays every month between 11.00 a.m. to
13.00 p.m.
• For more details and fixing an appointment call 61377600

PUBLIC CONCERN FOR GOVERNANCE TRUST (PCGT)

B/2 Mahalaxmi Chambers, 22, Bhulabhai Desai Road, Mumbai – 400 026
Email: publicconcern@gmail.com Visit us at www.pcgt.org
runs RTI Clinic on every Tuesday between 04.00 p.m. to 5.30 p.m. .
RTI Helpline No – 93 2288 2288
• For more details and fixing an appointment call 2352 6426

GIANTS INTERNATIONAL CHARITABLE TRUST

2nd floor, Orient Club Building, 9, Chowpatty Sea Face, Mumbai – 400 007
Email:giantwld@mtnl.net.in
Visit us at www.giantsinternational.org
runs RTI Clinic on 1st & 3rd Mondays of every month between 4.30 p.m. to 6.30 p.m.
• For more details and fixing an appointment call 2367 9698

INDIAN MERCHANT’S CHAMBER

IMC Building,Churchgate, Mumbai – 400020
runs RTI clinic on 1st & 3rd Wednesday of every month from 4 .00pm to 6.00 pm.
• For more details and fixing an appointment call 22046633

Please visit any of these clinics

Right to Information
Narayan Varma
Chartered Accountant

Part A: Orders of Courts

? Section 8(1)(a) & (e) of RTI Act:

CIC, Shailesh Gandhi has made an order of great interest. The following information was sought:
1. Total amount of money deposited by Indian citizens in nationalised Indian banks during the period 2006 to 2010. Provide information for each year separately;

2. (a) Information till date regarding total amount of loan taken but not repaid by industrialists from Indian nationalised banks and total amount of interest accumulating on such unpaid loans; and
(b) Details of default in loans taken from public sector banks by industrialists. Out of the above list of defaulters, top 100 defaulters, name of the businessman, address, firm name, principal amount, interest amount, date of default and date of availing loan.

(c) Steps being taken for putting information sought in query 2(a) and list of defaulters on the website of the respondent — Public authority.

By letter dated 14-10-2010, the CPIO informed the appellant that query 1 was transferred to DEAP; queries 2(b) and (c) were transferred to DBOD/DBS.

By letter dated 22-10-2010, the CPIO denied information on query 2(b) on the basis that it was held in fiduciary capacity and was exempt from disclosure u/s.8(1)(a) and (e) of the RTI Act.

In the first appeal, the FAA stated inter alia that the CPIO, DEAP had provided certain information vide letter dated 12-10-2010. Further he stated: ?As regards the contention of the appellant with respect to his query at point 2(b) (which relates to the default in loans taken by industrialists from public sector banks and matters associated with them), I find that the CPIO, DBS has specified that the information received from banks, in this regard is held by the Reserve Bank in fiduciary capacity and as such it cannot be disclosed in terms of clauses (a) and (e) of section 8(1) of the Act. There can be no doubt that the information on defaulters received from banks is held by the Reserve Bank in a fiduciary capacity and confidential in nature. Therefore, the exemption claimed u/s.8(1)(e) is, without doubt, proper in the eyes of law. Whether the exemption provided by clause (a) of section 8(1) would be attracted in given case would depend upon the factual position. In this matter, since section 8(1)(e) is clearly attracted, I do not propose to consider the other exemption which the CPIO, DBS has made use of for withholding the information.‘

The order of CIC is very powerful and I consider it as gem, for information analysis of section 8. Hence, instead of my summarising it, I reproduce the Completer Decision announced on 15th November, 2011:

?Based on perusal of papers and submission of parties, it appears that no information has been provided in relation to query 2(c), despite the order of the FAA. As regards query
2(b), the respondent has contended that the information sought was exempt u/s.8(1)(a) & (e) of the RTI Act. The Commission will first consider the claim of exemption u/s.8(1)(a) of the RTI Act made by the PIO. The PIO has claimed exemption u/s.8(1)(a) but not explained how this would apply. The first Appellate Authority has not given any comment on this. No justification was offered at the time of hearing as well. Section
8(1)(a) exempts, „information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;?. It appears that the PIO is claiming that the economic interests of the State would be prejudicially affected. It is impossible to imagine that any of the other interests mentioned in the provision could be affected. This Bench rejects the contention of the PIO that the economic interests of India would be affected by disclosing the names and details of defaulters from public sector banks. If it means that such borrowers would not bank with public sector banks for fear of exposure, it would in fact be in the economic interest of the nation. This Commission does not accept the claim of exemption u/s.8(1)(a) by the PIO. It is also unlikely that the economic well-being of the nation could get affected adversely by disclosing the names and details of defaulters. The Indian economy is dependent on far stronger footings.
By letter dated 22-10-2010, the CPIO denied information on query 2(b) on the basis that it was held in fiduciary capacity and was exempt from disclosure u/s.8(1)(a) and (e) of the RTI Act.

In the first appeal, the FAA stated inter alia that the CPIO, DEAP had provided certain information vide letter dated 12-10-2010. Further he stated: ?As regards the contention of the appellant with respect to his query at point 2(b) (which relates to the default in loans taken by industrialists from public sector banks and matters associated with them), I find that the CPIO, DBS has specified that the information received from banks, in this regard is held by the Reserve Bank in fiduciary capacity and as such it cannot be disclosed in terms of clauses (a) and (e) of section 8(1) of the Act. There can be no doubt that the information on defaulters received from banks is held by the Reserve Bank in a fiduciary capacity and confidential in nature. Therefore, the exemption claimed u/s.8(1)(e) is, without doubt, proper in the eyes of law. Whether the exemption provided by clause (a) of section 8(1) would be attracted in given case would depend upon the factual position. In this matter, since section 8(1)(e) is clearly attracted, I do not propose to consider the other exemption which the CPIO, DBS has made use of for withholding the information.‘

The order of CIC is very powerful and I consider it as gem, for information analysis of section 8. Hence, instead of my summarising it, I reproduce the Completer Decision announced on 15th November, 2011:

?Based on perusal of papers and submission of parties, it appears that no information has been provided in relation to query 2(c), despite the order of the FAA. As regards query
2(b), the respondent has contended that the information sought was exempt u/s.8(1)(a) & (e) of the RTI Act. The Commission will first consider the claim of exemption u/s.8(1)(a) of the RTI Act made by the PIO. The PIO has claimed exemption u/s.8(1)(a) but not explained how this would apply. The first Appellate Authority has not given any comment on this. No justification was offered at the time of hearing as well. Section
8(1)(a) exempts, „information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;?. It appears that the PIO is claiming that the economic interests of the State would be prejudicially affected. It is impossible to imagine that any of the other interests mentioned in the provision could be affected. This Bench rejects the contention of the PIO that the economic interests of India would be affected by disclosing the names and details of defaulters from public sector banks. If it means that such borrowers would not bank with public sector banks for fear of exposure, it would in fact be in the economic interest of the nation. This Commission does not accept the claim of exemption u/s.8(1)(a) by the PIO. It is also unlikely that the economic well-being of the nation could get affected adversely by disclosing the names and details of defaulters. The Indian economy is dependent on far stronger footings.
The Commission will now examine the claim for exemption u/s.8(1)(e) of the RTI Act.

Section 8(1)(e) of the RTI Act exempts from disclosure “information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information”.

This Bench, in a number of decisions, has held that the traditional definition of a fiduciary is a person who occupies a position of trust in relation to someone else, therefore requiring him to act for the latter‘s benefit within the scope of that relationship. In business or law, we generally mean someone who has specific duties, such as those that attend a particular profession or role, e.g., doctor, lawyer, financial analyst or trustee. Another important characteristic of such a relationship is that the information must be given by the holder of information who must have a choice — as when a litigant goes to a particular lawyer, a customer chooses a particular bank, or a patient goes to a particular doctor. An equally important characteristic for the relationship to qualify as a fiduciary relationship is that the provider of information gives the information for using it for the benefit of the one who is providing the information. All relationships usually have an element of trust, but all of them cannot be classified as fiduciary. Information provided in discharge of a statutory requirement, or to obtain a job, or to get a licence, cannot be considered to have been given in a fiduciary relationship.

Information provided by banks to RBI is done in furtherance of statutory compliances. In fact, where RBI requires certain information to be furnished to it by banks and such banks have no choice but to furnish this information, it would appear that such requirement of RBI is directory in nature. Moreover, no specific benefit appears to be flowing to the banks from RBI on disclosure of the information sought by the appellant. Consequently, no fiduciary relationship is created between RBI and the banks.

The respondent has also argued that information about customers is held by banks in a fiduciary capacity and hence disclosure of the same would violate the fiduciary — trust placed by borrowers of the banks. The Commission finds some merit in this argument. Information of customers is held by banks in a fiduciary capacity. If this information is disclosed to the RBI and subsequently furnished to the citizens under the RTI Act — it may violate the fiduciary relationship existing between the customers and the banks. Therefore, the information sought in query 2(b) is exempt from disclosure u/s.8(1)(e) of the RTI Act. However, if a customer defaults in repayment, should the information about the default also be considered as information held in a fiduciary capacity, is a moot question. The lender is likely to take all measures including filing suits to recover the money due, and these actions would mean publicly disclosing the default amounts. In such circumstances the bank would make these details public, and not feel fettered by the
fiduciary nature of the relations.
However, I am not going into delving into this trend of thought and accept that the information about the default by a borrower may be considered to be information held by a bank in a fiduciary capacity. When the Commission comes to the conclusion that the exemptions of section 8(1) of the RTI Act apply, it needs to consider the provision of section 8(2) of the RTI Act which stipulates as follows:

?Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with s.s (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.?

Section 8(2) of the RTI Act mandates that even where disclosure of information is protected by the exemptions u/s.8(1) of the RTI Act, if public interest in disclosure outweighs the harm to such protected interests, the information must be disclosed under the RTI Act. There is no requirement for the existence of any public interest to be established when seeking or giving information. However, if an exemption applies, then it must be considered whether the public interest in disclosure outweighs the harm to the protected interests.

According to P. Ramanatha Aiyar‘s, The Law Lexicon (2nd edition; Reprint 2007) at page 1557, „public interest? „means those interests which concern the public at large?. Banks and financial institutions in India heavily finance various industries on a routinely basis. However, it is a fact that large sums of such amounts are sometimes not recovered. In some cases, loans availed of are not repaid despite the fact that the industrialist(s) may actually be in a financial position to pay. Where financial assistance is given to industries by banks, in the absence of financial liquidity, it would result in a blockade of large funds creating circumstances that would retard socio-economic growth of the nation.

At this stage the Commission would like to quote Thomas J. of the High Court of New Zealand 1995, „The primary foundation for insisting upon openness in government rests upon the sovereignty of the people. Under a democracy, parliament is „supreme?, in the sense that term is used in the phrase „parliamentary supremacy‘, but the people remain sovereign. They enjoy the ultimate power which their sovereignty confers. But the people cannot undertake the machinery of government. That task is delegated to their elected representatives . . . . . . the government can be perceived as the agent or fiduciary of the people, performing the task and exercising the powers of government which have been devolved to it in trust for the people.

I wish the Government and its instrumentalities would remember that all information held by them is owned by citizens, who are sovereign. Further, it is often seen that banks and financial institutions continue to provide loans to industrialists despite their default in repayment of an earlier loan. The Supreme Court of India in U.P. Financial Corporation
v. Gem Cap India Pvt. Ltd., AIR 1993 SC 1435 has noted that “Promoting
industrialization at the cost of public funds does not serve the public interest; it merely amounts to transferring public money to private account?. Such practices have led citizens to believe that defaulters can get away and play fraud on public funds. There is no doubt that information regarding top industrialists who have defaulted in repayment of loans must be brought to the citizens‘ knowledge; there is certainly a larger public interest that would be served on disclosure of the same. In fact, information about industrialists who are loan defaulters of the country may put pressure on such persons to pay their dues. This would have the impact of alerting citizens about those who are defaulting in payments and could also have some impact in shaming them. RBI had by its Circular DBOD No. BC/CIS/47/20.16.002/94, dated 23rd April 1994 directed all banks to send a report on their defaulters, which it would share with all banks and financial institutions, with the following objectives:

1. To alert banks and financial institutions (FIs) and to put them on guard against borrowers who have defaulted in their dues to lending institutions.
2. To make public the names of the borrowers who have defaulted and against whom suits have been filed by banks/FIs.

Many Revenue Departments publish lists of defaulters and All India Bank Employees Association has also published list of bank defaulters. It would be relevant to rely on the observations of the Supreme Court of India in its landmark decision in Mardia Chemicals Ltd. v. Union of India, (decided on 8-4-2004). The Supreme Court of India was considering the validity of the SARFAESI Act and recovery of ?non-performing assets‘ by banks and financial institutions in India. While discussing whether a private contract between the borrower and the financing institution/bank can be interfered with, the Court observed:

?. . . . it may be observed that though the transaction may have a character of a private contract yet the question of great importance behind such transactions as a whole having far-reaching effect on the economy of the country cannot be ignored, purely restricting it to individual transactions more particularly when financing is through banks and financial institutions utilising the money of the people in general, namely, the depositors in the banks and public money at the disposal of the financial institutions. Therefore, wherever public interest to such a large extent is involved and it may become necessary to achieve an object which serves the public purposes, individual rights may have to give way. Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact in the socio-economic drive of the country.” (Emphasis added)

There are times when experts make mistakes, other times when corruption influences decisions. It is dangerous to put complete faith in the judgment of a few wise people to
alert everyone. Democracy requires reducing inequality of opportunity. Asymmetry of information deprives the citizens of an opportunity to take proper decisions. The Commission is aware that information on defaulters is being shared by Reserve Bank with an organisation called CIBIL. In such a situation, it is difficult to understand the reluctance to share this information with citizens using RTI. RBI‘s Circular of 1994, — mentioned above, — infact appears to promise to share this information suo moto with the public.

In view of the arguments given above, the Commission is of the considered view that the details of defaulters of public sector banks should be revealed since it would be in larger public interest. Revealing these would serve the object of reining in such defaulters, warning citizens about those who they should stay away from in terms of investments and perhaps shaming such persons/ entities. This could lead to safeguarding the economic and moral interests of the nation. The Commission is convinced that the benefits accruing to the economic and moral fibre of the country, far outweigh any damage to the fiduciary relationship of bankers and their customers if the details of the top defaulters are disclosed.

Hence, in view of section 8(2) of the RTI Act, the Commission rules that information on query 2(b) must be provided to the appellant, since there is a larger public interest in disclosure.

The appeal is allowed.

?The PIO shall provide the complete information as per records on queries 2(b) and 2(c)
to the appellant before 10th December 2011.

The Commission also directs the Governor, RBI to display this information on its website, in fulfil-ment of its obligations u/s.4(1)(b)(xvii) of the RTI Act.

This direction is being given under the Commission‘s powers u/s.19 (8)(a)(iii). This should be done before 31st December, 2011 and updated each year?.

[Mr. P. P. Kapoor v. PIO & Chief General Manager, Reserve Bank of India, Mumbai, [Decision No. CIC/SM/A/2011/001376/SG/15684, Appeal No. CIC/ SM/A/2011/001376/SG]

[Note: Full decision is posted on website of BCAS & PCGT]

As reported in The Times of India on 10-12-2011, this judgment has been stayed by the
Delhi High Court.
The Delhi High Court on 9-12-2011 stayed the direction of the Central Information Commission (CIC) asking the Reserve Bank of India to provide details of industrialists who have defaulted in repayment of loan taken from nationalised banks.

A Bench of Justice Vipin Sanghi, in its interim ex parte order, asked the information seeker to respond to petition filed by RBI challenging the CIC order.

The Court listed the next hearing on 27th February, 2012, on RBI‘s petition which said the CIC‘s directives were in violation of the Right to Information Act.

Counsel T. R. Andhiyaarjuna, appearing for the RBI, contended that the CIC‘s order would have a farreaching impact as this kind of information is confidential and the Information Commissioner has dealt with the matter in a wrong way, without considering all the relevant provisions under the RBI Act.

He also said the order of the CIC was beyond its jurisdiction under the transparency law, as RBI is exempted from providing such info u/s.8(1)(a).

? Sections 18 and 19 of the RTI Act:

On 12th December, 2011, the Supreme Court of India has delivered judgment, very powerful and detailed, running into 30 pages dealing with the provisions of sections 18 and 19 of the RTI Act. As decision reported is of many pages, the same is posted on BCAS and PCGT websites. Those interested may view it there. Only one para of it is reproduced hereunder:
?We are of the view that sections 18 and 19 of the Act serve two different purposes and lay down two different procedures and they provide two different remedies. One cannot be a substitute for the other.

[Chief Information Comm. and Another v. State of Manipur and Another under civil
Appeal Nos. 10787-10788 of 2011 (arising out of S.L.P. (c) Nos. 32768-32769/2010)]

Note: Please see part B for DNA‘s report on above decision.
Part B: The RTI Act,

DNA report dated 14-12-2011 on the Supreme Court judgment referred to in Part A.

Confidentially can‘t hide Information: SC strengthening the arms of the Right to Information Act in a manner that thwarts the Government‘s procedural antics to stall information regarding corruption and human rights violations by investigation agencies under the garb of confidentiality, the Supreme Court has ruled that a Notification issued by a State for that purpose in mind can‘t be made effective from retrospective date.

In a significant judgment on Monday, the Apex Court held that the Notifications under the RTI Act cannot apply retrospectively. It means, information in response to an RTI query can‘t be denied merely because a Notification has been issued after the date of application.

The right of an aggrieved applicant must be decided on the basis of the law as it stood on
the date when the request is made. ?Such a right cannot be defeated on the basis of a

Notification if issued subsequently at a time when the controversy about the RTI is pending before the Court,? a Bench of Justices Asok Kumar Ganguly and Gyan Sudha Misra ruled while disposing of an appeal filed by a resident of Manipur, Wahangbam Joykumar, who had moved the State in February, 2007 under RTI seeking information regarding the magisterial enquiries initiated by the State from 1980 to 2006.

The Government denied this information on the basis of Notification issued in 2007.

Allowing Joykumar‘s appeal, the Bench asked him to seek the requisite information now as it directed the State to provide him the information.

Stressing the importance of the RTI Act, the Apex Court said its preamble would show that it ?is based on the concept of an open society. Way back in 1975, the Apex Court had underscored the need of an ?open government‘ and observed that ?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?.

It had also said that people are entitled to know the particulars of every public transaction in all its bearing. The right to know 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 transaction which can rate, have no repercussion on public security.

It also warned saying that ?to cover with veil of secrecy, the common routine business, is not in the interest of public. Such secrecy can seldom be legitimately desired.

Part C: Information On & Around

? RTI and Consumer Protection Act:

The Pune District Consumer Disputes Redressal Forum (Consumer Court) has ordered an educational institution to pay compensation to an RTI applicant, a former employee of the institute, for delay in providing him information he had sought to buttress a case he had filed in the Bombay High Court.

The consumer forum ordered the Information Officer and the principal of Deccan Education Society‘s Technical Institute to pay Rs.15,000 to Haribhau Kakade for not providing the information despite a state information commission order to do so. The institute argued that Kakade was not a ?consumer‘ as per the definition in the Consumer Protection Act. The Court panel of president of the forum Anjali Deshmukh and member S. K. Kapse disagreed and relied on a National Consumer Rights Commission order that stated, ?In our view, therefore the State Commission was wrong while holding that once the complainant had availed the remedy against which appeal was provided, he could not maintain a complaint under the Consumer Protection Act.? The Consumer Court stated that although it cannot direct the institute to make the documents available to Kakade, it can order the institute to pay a compensation for mental and physical agony faced by him. The Court ordered the institute to pay Rs. 15,000 as compensation and Rs.1, 000 as
litigation cost. (As reported on 9-12-2011 in Indian Express)

? MMRDA for furnishing certain information

Information comes at a price, but Thane resident Omprakash Sharma learnt that the cost could be prohibitive when the information concerns public issues and is to be given by a public body like the Mumbai Metropolitan Region Development Authority (MMRDA).

The state-run agency has told Sharma to pay Rs. 50,000 for copies of a study report on transportation strategies in Thane and Raigad districts.

The Right to Information (RTI) Act activist had on November 14 filed an application with the MMRDA, inquiring if the agency had conducted any surveys on the monorail or metro in the Mumbai Metropolitan Region (MMR) area. Sharma offered to pay for the study report.

MMRDA promptly replied to the query on November 26, stating that a comprehensive transportation study for the region was carried out by the agency along with M/s. Lea Associates, and the study report was ready by 2008. Another report, on the proposed master plan for a monorail in Thane and Raigad, was also prepared and is with the MMRDA.

However, Sharma was asked to pay up Rs.50,000 for securing these reports as they are said to be ?priced reports‘. ?It shows how innovative they could be in keeping away citizens and activists who seek information using the RTI Act?, Sharma said.

He added that the report is now MMRDA property and ideally it should follow the RTI Rules, which state that the information seeker be charged Rs.2 for every copy which is photocopied.

?Alternatively, the agency could charge me Rs.50 for transmitting the report on a floppy
or disc? Sharma said.

? Statement on RTI in Rajya Sabha:

Minister of personnel, public grievances and pensions, V. Narayanasamy replied in the affirmative on a query in the Rajya Sabha regarding concerns raised by Ministers on the RTI Act affecting the Government‘s functioning.

When asked about bureaucrats expressing apprehension about putting their view on controversial issues because of the Act, the Minister said:

?Some concerns have been expressed that the improper use of RTI Act and indiscriminate and impracticable demands for disclosure of sundry information unrelated to transparency and accountability in the functioning of public authorities may adversely affect the efficiency of administration.?
c On a separate question, he said the Central Information Commission has a pendency of 20,232 cases as on 1st September.

? Non-refund of deposits by the college:
In the elation of securing admission to a college of their choice, students often forget to check that the miscellaneous fees and deposits paid to the institution are actually refundable.

These deposits are taken by the institute as cover in the event of any breakages or damage to the facility caused by the student. And these deposits are refundable after completion of the course, however a majority of students are unware that they are entitled to the refund. A former student of Ramniranjan Jhunjunwala (RJ) College in Ghatkoper approached the management to claim the refundable deposit. Surprisingly, his request to the college administrators was met with uncooperativeness. Fed up with the tactics of management, the ex-student who was made to run from pillar to post to recover his security deposit exposed the college through an RTI query.

In August this year, Singh sought information through an RTI, querying why the management is not refunding the student‘s money. But the management refrained from giving him a reply. On 1st, October, Singh then appealed to a higher authority in the college. A week later, the college replied that the management had refunded money to all those students, who have asked for a refund. The authorities also presented a list of 14,000 students who had paid deposits to the college. However, more than 30% of the students did not receive their dues, which means that the college had pocketed approximately Rs.45 lakh in the last 10 years.

?It‘s shocking and shameful for our educational system that the college is not interested in refunding the money. The college should be investigated and action should be taken against those guilty of misappropriation,said Singh.

Following the RTI revelation, on 23rd November, Singh wrote (copy with MID DAY) to the Education Minister, State Education Minister, Governor and the Vice-Chancellor of
Mumbai University to look into the matter.

Part D: RTI & Success Stories

? Mr. S. K. Nangia’s success story:

This is actually a case of success-cum-threat from the IT Department after use of RTI. I am a retired person 71 years of age. I am a regular taxpayer from 1964-65 onwards. After my retirement, apart from the pension that I get, my other income comprises of interest
earnings on deposits with the bank and dividend from equity investments which is tax free. Bank deducts TDS from periodical interest payments made. I file Income-tax return in early April every year with position of refund due, which I receive subsequently.

The position regarding release of refund(s) by the IT Department is often erratic and generally delayed. While I had received refund for A.Y. 2009- 10 in end-September
2010, refund for A.Y. 2008-09 was yet to be received till that stage.

Besides, I had received in March, 2008 a demand notice for Rs.1450 for A.Y. 2006-07, which was replied by me vide letter of 15-3-2008. Thereafter, there was no further communication from ITO for well over two years and the position regarding finalisation of rectification for that year‘s demand remained uncertain.

In the backdrop of given situation, I filed RTI application on 4-10-2010 desiring to know (i) when can I expect refund for A.Y. 2008-09 as also A.Y. 2010-11, and (ii) status of disposal of my letter written well over two years ago on 15-3-2008 praying for rectification of demand for A.Y. 2006- 07. I had simultaneously also filed another RTI application with the Office of Chairman, CBDT, New Delhi primarily desiring to know the time norm prescribed in Citizens‘ Charter for providing refund in normal cases. In response to my application, PIO of the CBDT advised that in normal cases refund is given within three months from the end of month in which claim for refund is made, and in cases of delay beyond the period thus specified, the Department shall pay assessee simple interest @ 15% p.a. on the total amount of refund determined. Simultaneously, APIO of the CBDT endorsed a copy of letter addressed to me, to the Additional Commissioner of Income-tax at Aayakar Bhavan, Mumbai asking him to urgently make the refund to me.

Initially PIO & ITO at BKC, Bandra East with whom I had filed RTI application on 4-10-2010, behaved tough and funny. He even rejected my request for information saying that it falls under exemption clause u/s.8(1)(j) of the RTI Act. When I contested his stance of denying information and even filed an appeal, he softened his stance.

Later when copy of the letter from the CBDT had also been received at Mumbai-end, he started adopting a positive and co-operative attitude. He promptly passed rectification order in respect of A.Y. 2006-07 which matter was held pending and un-attended for nearly three years, revising the demand to NIL.

In respect of A.Y. 2008-09, he said the release of refund though approved in system, was pending for adjustment against a demand for A.Y. 2003-04, which I was not aware of as I had not received any demand notice from the IT Department. To sort out the issue, he adjusted the refund for A.Y. 2008-09 against outstanding demand of A.Y. 2003-04 and asked me to make payment of net resultant demand amount, which I promptly paid. He even released refund for A.Y. 2010-11.

Julio Ribeiro
To
Shri Prithviraj Chavan
Chief Minister of Maharashtra
Mantralaya,
Mumbai – 32

GEETANJALI MINHAS
Principal Correspondent (Mumbai) GOVERNANCEnow

A convention ‘Youth for Governance’ was held in Mumbai last week to encourage students to get involved in governance issues, facilitate their understanding on how to contribute to nation building and fight against corruption. Organised by Public Concern for Governance Trust (PCGT) in association with 20 NGO’s, the event was attended by N R Narayana Murthy, Mumbai Police commissioner, Arup Patnaik, Ajit Ranade of association for democratic reforms, actor Rahul Bose, senior journalist Kumar Ketkar and joint CP traffic Vivek Phansalkar. Students from various colleges attended the convention.

Retired DGP Julio Riberio and chairman PCGT, said, “Anna Hazare movement has led people to talk about corruption. The PCGT believes that instead of concentrating on Jan Lokpal, we must ensure that present laws, particularly the anti-corruption laws are strictly and impartially enforced ”. It asked the youth to identify cases of corruption, injustice, bad governance by enforcement authorities like the police, the BMC, the ACB and others and bring it to the notice of the PCGT so that they can assist in whatever way we can.

Riberio said that every college should form a cell called ‘Youth for Governance’ drawn from bodies like the NCC, the NSS and others from where interested students can participate to agitate on governance issues.
Prodding students to become role models for future generations, rise above issues of caste, religion, race and party affiliations, Infosys ex-chief Narayan Murthy told students that in his young age he did not have the confidence today’s youth have. He encouraged them to lead by example and become exemplary leaders and create an environment of openness for new ideas irrespective of where they come from. “Educate yourself to become a productive and an honest citizen and do good to the country by fighting corruption, participate in the voting process, be secular, use data and facts in arguments and debates to bring out best decisions and remove people biases against you,” Murthy told the students.

He advised youth not to be emotional and discourteous during discussions and debates and added that there is a need to bring excellence, efficiency, equity and most importantly execution in the country’s public governance system.

Ajit Ranade of ADR and chief economist Aditya Birla Group asked students to start infecting society with good things starting with one thing at a time. He said that students should vote for an individual after checking the person’s details and told students to get additional 10 people to vote.

Lamenting that professional efficiency of the Mumbai police which has come down as compared to what it was 30 years ago, Mumbai police commissioner Arup Patnaik told students that since the law and society has given immense power to a policeman, his job carries burden and responsibility. The police chief said that he is often asked how many policemen for how many people? “It is actually a question of how many policemen for how many bad people and the ratio is very less. With a strength of 50,000 personnel, the Mumbai police is short-staffed but due to compliance of law here as compared to other cities, we are overstaffed,” Patnaik said.

Senior journalist Kumar Ketkar told students that every republic is not necessarily a democracy and though they appear to be synonymous both have different connotations and values. “We do not recognise that we are not only a democracy but also a republic and we have constitutional responsibilities on us.” Giving the examples of different kinds of corruption, the senior journalist while speaking about Punjab where there is a very high rate of girl child infanticide said, “This is a country which has terror at the level of family, community and organised groups. It is not ruled by laws of the republic but laws of the vandals. If we want to preserve our democracy and republic, it’s time to save our country not only from corruption but also from vandals.”

After retirement he was a Chairman, President, Trustee and Director of various organizations and NGOs like KEM Hospital, Pune, Chhatrapati Shivaji Maharaj Vastu Sangrahalaya (Prince of Wales Museum), Mohalla Committee Movement Trust and many more. He has written books like ‘A Cabinet Secretary Thinks Aloud’, ‘A Cabinet Secretary Looks Around’, ‘Poona to Prime Minister’s Office’, ‘A Cabinet Secretary Looks Back’.