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Atul Patankar

Still no clarity on RTI for state bar council

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Atul Patankar

As reported by Ashutosh Shukla at dnaindia.com on january 1, 2009

 

In a bizarre case, an RTI activist’s appeal was turned down by none other than the state information commission on the pretext that the RTI Act does not cover the organisation the activist sought information from.

 

What left the applicant even more flummoxed was the fact that the Bar Council of Maharashtra and Goa (BCMG), the organisation in question, was of the opinion that the RTI Act was binding on them.

“I do not understand where to go and what to do. How can a commissioner who is supposed to uphold the spirit of the Act be so ignorant about it? What is he doing on that chair? He has not just denied the information, but set a very bad precedent,” said Rajan Alimchandani, 63, who provides free consultancy on housing-related issues.

Alimchandani had asked for information from the BCMG in October last year. The reply was first delayed, and when given, was not complete. He then appealed to information commission.

After the hearing, the order signed by state information commissioner Ramanand Tiwari stated, “The Bar Council does not fit into the definition of public authority…. it is true it has been established by law but any organization or body which claims to be doing anything legitimate has to be registered under some or other law.” The order further states, “I conclude that the Bar Council is not a public authority, therefore, the appeal is dismissed.”

Contrary to this, the CIC, in a reply signed by its registrar LC Singhi, said, “During the course of discussions at the last convention, it was clarified that the Bar Councils are constituted under Central law and as such, the Central Information Commission has the jurisdiction to deal with all RTI matters concerning Bar Councils.”

 

Source : DNA - Mumbai - Information commissioner unaware of law: RTI applicant

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sandeepbaheti

All Bar Councils have been constituted under the Advocates Act, 1961 and therefore clearly fall within the definition of public authority under Sec 2(h)(b) of the RTI Act. There is no scope for any doubt regarding this.

IC Tiwari needs to understand the difference between establishment and registration. While all authorities established or constituted by law are Public Authorities, the requirement of registration under any law is not, by itself, sufficient to make the organization fall under the definition of PA.

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vijendra singh

ICs think they are not public servants.They think public is their servant . This is the reason public is nothing for them. They often damage the appellants/ public knowingly & openly; but public can not damage them even in dreams.

Situation is alarming; needs urgent remedy.

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arshadindia

"The word "Constituted" does not necessarily mean "created" or "set up" though it may mean that also. It also includes the idea of clothing the agreement in legal form. The word in its wider significance, word include both the idea of creating or establishing and the idea giving a legal form to, a partnership/giving legal shape".

 

(M/s R.C. Mitter and sons v/s Commission of Income Tax, AIR

1959 SC 868.)

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vraj

can you provide me the email address of ashutush shukla of dna times who appears to be covering RTI matters in DNA Times. I am also interested in email address of reporters of other newspapers as well who may be normally covering RTI issues.

 

Thanks.

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sandeepbaheti
can you provide me the email address of ashutush shukla of dna times who appears to be covering RTI matters in DNA Times. I am also interested in email address of reporters of other newspapers as well who may be normally covering RTI issues.

 

Thanks.

 

Beyond the scope of discussion on this portal.

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Atul Patankar

As reported by Ashutosh Shukla at www.dnaindia.com on 08 April 2009

 

Mumbai: In what might make the seeking of information from the Bar Council of Maharashtra and Goa (BCMG) more difficult, the registrar at the Central Information Commission (CIC) has said that since all bar councils came into effect through a central legislation, applications seeking information from any bar council should be sent to the CIC in New Delhi.

Talking to DNA from New Delhi, LC Singhi, the CIC registrar said, "Ideally, the second appeal to a bar council in the country should be sent to the CIC since the bar councils exist under a central legislation. However, the law is open to interpretation and it is up to the state to give a decision." The first appeal is to the local appellate authority and the second appeal can go either to the state information commissioner (SIC) or the CIC.

 

Singhi was reacting to a clarification sought by Rajan Alimchandni, who was not satisfied with the information he had received from the BCMG and the local appellate. He filed his second appeal to the SIC, Ramanand Tiwari, who claimed the BCMG is beyond the RTI Act's purview.

But while Singhi said that bar councils do come under the RTI Act, he told Alimchandani to file an appeal to the CIC. Though Singhi said that the SIC too can decide on the case, state information commissioner Dr Suresh Joshi is not so sure.

 

"There are a few matters pertaining to the bar council and I am yet to decide on them. There are contradictory views on whether it comes under our purview or not. I will decide in a week's time."

Alimchandani said the ruling was absurd. "When the SIC hears all the matters of the state government, why should an appeal against the BCMG go to the CIC?"

 

RTI activist GR Vora backs Alimchandani. "When second appeals on matters relating to the Bombay High Court go to the SIC, why make an exception for the bar council?" asked Vora.

 

Another activist, Krishnaraj Rao, said the CIC's interpretation will make the process more cumbersome. "It flies against the spirit as it will lead to delays. The RTI is all about timely information. Why should people from all over the country send appeals to Delhi?" he asked

 

Source: DNA: Mumbai: Still no clarity on RTI for state bar council

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karira

There is already a Punjab & Haryana High Court order ruling that Bar Councils are under the Centre and not the State.

 

It can be read here:

 

http://www.rtiindia.info/downloads/p13_sectionid/2/p13_fileid/30'>http://www.rtiindia.info/downloads/p13_sectionid/2/p13_fileid/30

 

(This is on a sister website: http://www.rtiindia.info but since it is hosted on a separate server you need to register on that portal separately, in order to download the attachment)

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karira

As reported by Ashutosh Shukla in dnaindia.com on 13 August 2009:

'Bar Council comes under RTI Act' - DNAIndia.com

 

'Bar Council comes under RTI Act'

 

Mumbai: In a major reprieve to RTI applicants and long awaited clarity needed on the scope of RTI Act, 2005, the state chief information commission (SCIC) has ruled that the bar council is a 'public authority' and hence will come under RTI Act.

 

The decision comes after an already floating contrary order by state information commissioner (Mumbai) stating the bar council is not a public authority. The bar council after getting to know of the said order had refused to entertain any RTI application or appeal stating that it was not even financed by the government. The recent order by SCIC was given on July 31, Dr. Suresh Joshi.

 

The order reads, "The preamble of the Advocates Act 1961, under which the council is created, itself is clear that bar council is constituted by law made by parliament." It further states "....A closer look of the definition of 'public authority' reveals that public authority is either, established or constituted under the constitution or Parliament or state legislature or order by appropriate government. A public authority does not have to satisfy all the requirements or get financial aid from government."

 

Talking to DNA, Dr Suresh Joshi said, "There is clarity on it now after much deliberations and since the Bar Council of Maharashtra and Goa constituted by law made by Parliament, it is a public authority. The decision is taken after discussion and opinions from the expert and even Ramanand Tiwari has reflected this in another hearing that had come to him."

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karira

If the Bar Council has been constituted under a law made by Parliament it should come under the CIC and not the SIC.

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sandeepbaheti
In a major reprieve to RTI applicants and long awaited clarity needed on the scope of RTI Act, 2005, the state chief information commission (SCIC) has ruled that the bar council is a 'public authority' and hence will come under RTI Act.

 

First time hearing about State Chief Information Commission. It seems that some reporters need RTI training more than PIOs and FAAs.

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sandeepbaheti
If the Bar Council has been constituted under a law made by Parliament it should come under the CIC and not the SIC.

 

I am not very sure if we can conclude this. All SICs have been constituted under Sec 15(1) of the RTI Act which is an Act of Parliament. Despite that an appeal against the decision of an SIC's PIO will go to the SIC itself and not the CIC.

However, I am myself confused on which commission should have jurisdiction over state bar councils. For that we need to point out which would be the appropriate government for bar councils.

There is one Bar Council for the states of Maharashtra & Goa and Union Territories of Dadra and Nagar Haveli and Daman and Diu. Why should Maharashtra SIC alone have jurisdiction over it?

But again, most Bar councils are for single states and central government has apparently got nothing to do with them.

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karira

The Punjab & Haryana High Court has already ruled that State Bar Councils are under the Centre and not the State. Therefore CIC has jurisdiction, not the SIC:

 

http://www.rtiindia.org/forum/8437-bar-council-punjab-haryana-pa-under-centre-not-state.html?highlight=bar+council

 

h) "public authority" means any authority or body or institution of self- government established or constituted—

a) by or under the Constitution;

b) by any other law made by Parliament;

c) by any other law made by State Legislature;

d) by notification issued or order made by the appropriate Government, and includes any—

1 body owned, controlled or substantially financed;

2 non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government;

 

 

The Bar Council of India and the State Bar Councils were created by the Advocates Act, 1961. This was an Act of Parliament. Therefore, as per Sec 2(h)(b) they are PA's under the Centre and the jurisdiction is of the CIC.

 

Please also see: Laws - The Advocates Act - Section 3

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Atul Patankar

As reported at deccanherald.com on January 17, 2010

 

The Bar Councils are open to public scrutiny under the Right to Information Act (RTI) and should set-up a mechanism to facilitate processing of applications directed to them under the transparency law, the Central Information Commission (CIC) has held.

The Bar Council of India and Bar Council of Punjab and Haryana had rejected several RTI applications saying though they were set-up under the Advocates Act, 1961 they did not get direct or indirect funding from Government, hence out of the purview of the RTI Act.

However, the Commission in a recent order held that the councils might not have been financed by the Central or State governments but they were set-up under an Act passed by the Parliament and hence they are covered by the RTI Act.

 

"It is held that the Bar Councils - Bar Council of India and the State Bar Councils - are public authorities within the RTI Act...the Bar Councils are directed to take all necessary steps to carry out their duties and responsibilities assigned by the RTI Act," Information Commissioner A N Tiwari said while directing them to respond to all RTI queries addressed to them.

 

The Commission had clubbed 10 cases for hearing as in all of them information was rejected by the Bar Councils saying their "main source" of fund was not the Government but Enrolment fee collected from members and that the Government had provided some grants only occasionally.

 

The Councils also put forth a decision of Maharashtra State Commission that they are analogous to cooperative societies, hence not covered under the transparency law.

"It is admitted by them that the Bar Council of India and other State Bar Councils...were 'statutory bodies'. But, they oppose any proposition that for that reason alone they are a public authority...Their plea is that they did not satisfy the requirement of being substantially funded directly or indirectly by the government," Tiwari said.

 

He said their argument is that unless an entity satisfies all elements of qualifications mentioned in the RTI Act, it cannot be defined as a public authority under it.

Tiwari said qualification specified under the RTI Act for bringing some entity under it are mutually exclusive although one or more than one element may be present in a given entity.

 

"Even one of these elements is sufficient for an entity to be characterised as public authority," he said.

Source: Bar Councils open to public scrutiny under RTI Act: CIC

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Atul Patankar

As reported By T S Sekaran at expressbuzz.com 27 Jan 2010

 

Bar councils subject to RTI Act: CIC

CHENNAI: The Bar Council of India (BCI) and the Bar Councils in the states, the statutory bodies governing the legal education and the profession in the country, will come under the purview of the Right to Information (RTI) Act, the Central Information Commission (CIC) in New Delhi has ruled.

CIC Information Commissioner AN Tiwari made the ruling while passing orders on a batch of nine complaints and one appeal from Prof S Mahalingam of Chennai and others in various parts of the country, on January 11, 2010. The BCI submitted that it was a body established by the Advocates Act and was not directly or indirectly funded either by the Central government or the respective State governments.

Therefore, the Bar Councils were not public authorities within the meaning of Section 2(h) of the RTI Act. Even though the Bar Councils were established by the Advocates Act, enacted by Parliament, they could not be defined as a public authority, unless an entity satisfied all elements of qualifications mentioned in Section 2(h).

Even if an entity was established by an Act of Parliament, if such an entity was not directly or indirectly financed by the government, it would not qualify to be a public authority, the Bar Councils contended, adding that hence, the request for information under the RTI Act could not be provided.

Rejecting the submissions, the Information Commissioner oberved that admittedly the BCI and other Bar Councils in the States were established under the Advocates Act and were statutory bodies. Section 2(h) spelt out the several ways in which an entity was qualified to be a public authority.

These elements of qualification were mutually exclusive although one or more than one element might be present in a given entity.

Even one of these elements was sufficient for an entity to be characterised as a public authority.

Direct or indirect funding was germane to sub-section (d) of Section 2(h), where an entity became a public authority through notification issued by the government.

This element of qualification was entirely independent of sub-section (b) of Section 2(h) and at present it was not applicable to the Bar Councils, given the circumstances and nature of their creation. Therefore the argument that as Bar Councils were not directly or indirectly funded by the government, they were not public authorities, was not square with the requirement of Section 2I(h) of the RTI Act.

The Advocates Act was not an umbrella Act like the Co-operatives Societies Act or the Societies of Registration Act, but was a specific Act, which brought into being specific organisations, that is the Bar Councils.

The authorities were entirely right in stating that theirs was a statutory body, but wrong in claiming that that was not sufficient condition for their being christened public authority under Section 2(h) (b), the CIC observed and directed them to take all necessary steps to carry out their duties and responsibilities assigned by the RTI Act.

 

Source: http://www.expressbuzz.com/edition/story.aspx?Title=Bar+councils+subject+to+RTI+Act:+CIC&artid=tTOOzwK|wYM=&SectionID=lifojHIWDUU=&MainSectionID=wIcBMLGbUJI=&SectionName=rSY|6QYp3kQ=&SEO=

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