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umapathi.s

FOR HEARING AT CIC SCHEDULED ON 21ST APRIL-08. and clarification on sec 8(1)(g)

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umapathi.s

1)dear RTI friends, I have been given an hearing at CIC for the four appeals against Reserve Bank of India (RBI) and nine appeals against State Bank of Saurashtra(SBS). these appeals are being scheduled at CIC, August Krant Bhavan on 21st April. I would be attending the appeal to defend my case since in most of the cases, in the absence of the appellant, the decision are given favouring the Public Authroity since most of the time they are present and they can present the case effectively. I need the assistance of any Delhi based RTI VOLOUNTERES/ ACTIVISIT who can accompany me and help to defend the case at CIC. It is clarified that there is no such restrictions for the same. kindly keep me posted reply to this help at your earliest.

 

2) secondly I request the RTI friends/activists to clarfify the appliction of section 8(1)(g) of the Act. I had made some serious complaints to RBI but even after my continous follow up , they didnot process my compliants within the time norms fixed and as per the complaint handling policy . there some officails of the RBI who deliberately delyed for alomost 20 months to get the reply from RBI. so one of the Informations I asked in the RTI application was name and designations of the officials who handled my complaints,who were in charge of these complaints and made deliberate delay in finalisation of these complaints. I asked this in order to complain to higher authorites for their negiligence and derilication of duty by not following the prescribed procedures. CPIO claimed exemptions u/s 8(1)(g) of the Act. the AA of RBI too upheld the stand of the CPIO and I was denied the name and designations of the RBI officials .whether their calim is justified? how can the inefficient and lethargic officials be identified in order to initiate actions under their service Regulations ? is it not in public interest ? kindly give definite and logical answers supported by CIC decisions , if any. I feel the sections 8(1)(g) of the act is to applied in case of law enforcement and enuiry procededins. but in this case it is only about the non-adherence of complaints as per law and hence the accountability must be fixed for their inefficiency and derilication of duties. the main spirt of the ACT is to ensure transperancey and accountability in the working of Public Authorities whcih can be acheived if such lethargic public officails name and designation sare disclsoed to initiate actions as per law. but sectios 8(1)(g) of the act is being used to cover up these officials and are responsbile for delay in public works. so kindly offer your valauable suggestios and advice which can be used by me to defend my line of arguments at CIC. Regards (umapathi.s)

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karira

umapathi,

 

In order to prepare for your Second Appeal hearing it is advisable to see some old decisions of CIC which concern:

 

- RBI

- Complaints about Banks

- Section 8(1)(g)

 

Reading some of them will give you an idea as to how to approach and argue your case before the CIC.

 

Some of the decisions you can look at:

 

http://cic.gov.in/CIC-Orders/Decision_17082006_11.pdf

http://cic.gov.in/CIC-Orders/Decision_06092006_5.pdf

http://cic.gov.in/CIC-Orders/Decision_11072007_17.pdf

http://cic.gov.in/CIC-Orders/Decision_07122006_1.pdf

http://cic.gov.in/CIC-Orders/Decision_17092007_27.pdf

http://cic.gov.in/CIC-Orders/Decision_28052007_35.pdf

http://cic.gov.in/CIC-Orders/Decision_30082007_02.pdf

(In this decision see about severability clause on application of Sec 8(1)(g))

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slchowdhary

Your contention as to 8(1)g being misused is perfectly right in letter and in spirit. No need to be argumentative. Just keep cool. It is the respondent who have to argue. They may bring some baseless issues. Just say that they are irrelevant, unnecessary and uncalled for(remember parry mason?). Be brief and precise. I hope some RTI activist will find time to accompany you

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TSBehera

Be brief,logical,patient listen to illogical arguments that shall be definitely pleaded by those erring pio/AA.One need not have voluminous books to take there.Think of natural justice........only asking one question in which way disclosure of their names shall be so personal invasive to them.There is two construct in that clause that may be pleaded:

 

1.Restrictive Construct:Restrictions imposed on very information as to their friends,love life ,sexual life their likes,dislikes etc.that should not be dsclosed .

 

2.Enlarged Construct : Restrictions imposed beyond connotation of statutes enacted like their properties,income,home address ....more enlarged....their names...more enllarged...whether they are employee or not.

 

Please Quote : In Craies on Statute Law (1971 ed. Chapter 21), the principle regarding penalBut penal statutes must never be construed so as to narrow the words of the statute to the exclusion of cases which those words in their ordinary acceptations would comprehend. . But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair commonsense meaning of the language used, and the court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument

 

In Statutory Interpretation by Francis Bennion (Third ed.) para 313, the principle has been stated in the following manner

 

The court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have been intended by Parliament. Sometimes however, there are overriding reasons for applying such a construction, for example where it appears that Parliament really intended it or the literal meaning is too strong."

 

Sheffield City Council v. Yorkshire Water Services Ltd. (1991) 1 WLR 58 at 71, where it was held as under :

 

Parliament is taken not to intend the carrying out of its enactments to be unworkable or impracticable, so the court will be slow to find in favour of a construction that leads to these consequences. This follows the path taken by judges in developing the common law. ' the common law of England has not always developed on strictly logical lines, and where the logic leads down a path that is beset with practical difficulties the courts have not been frightened to turn aside and seek the pragmatic solution that will best serve the needs of society."

 

In S.J. Grange Ltd. v. Customs and Excise Commissioners (1979) 2 All ER 91, while interpreting a provision in the Finance Act , 1972, Lord Denning observed that if the literal construction leads to impracticable results, it would be necessary to do little adjustment so as to make the section workable. Therefore, in order that a victim of a crime or criminal justice , namely, the person aggrieved is able to exercise his right conferred by law to initiate prosecution of the offender, it is necessary to place a restrictive interpretation .

 

Tell that the information sought does not pertain to any personal information seen in a restricted construct ,it relates to enlarged construct but , I only want those informations as I am a victim ,a criminal victim and needs their names to procecute them in view of contentions of Denning for the needs of society in general and to give solace to the injury to person This can only be done only when information sought is furnished to the appellant by the Public Authority by taking a restricted view.

 

Moreover, in the said provision of Section 8 (1) of the RTI Act 2005, it has been enacted that the information which can not be denied to the Parliament or a state Legislature shall not be denied to any person. Prudence decision of the Appellate Authority must be sought for the question as to whether the information sought can be denied to the Parliament or a State Legislature and review the decision of the PIO /FAA accordingly.Further, it must be reiterated that the Appellate Authority may take recourse to the Section 8(2) of the RTI Act 2005 read as : “Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub section (1) , a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests”

 

All the best ! and tell me your experience.

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slchowdhary

Thanks To T S Behra for excellent piece

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umapathi.s

thanks for the suggestions and decisions of CIC. I shall make use of these to defend the case. I shall inform about the outcome of the appeals. regards

 

Thank You TSBehera for the detailed interpreation of Restrictive and enlarged construct whcih would can be used in the present context. though it is techincal in nature, it is a good source and thanks for the excellent article. regards. (umapathi.s)

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opsharma

Umapathi,I would sincerely suggest,you read and clearly understand CIC's decisions refered to by Karira,in particularly Decisions: 17082006 and 07122006.Even though you have not mentioned even an iota of your case/requirements,RBI is very much justifiable to politely refuse certain information affecting economic well being of nation and may be in turn people at large.

I would also sincerely suggest not to use derogatory language when seeking information,there are a thousands of very valid reasons why a particular info cannot be divulged to public.And another thing ,there are still many public institutes in India,where working zeal and professionalism of people is above board and worth emulating.

I donot agree with TSBehera's examples,these donot qualify in this particular case.Although,you are a better judge,being an aggrieved party.

my best wishes to you.

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umapathi.s

thanks for your advice and best wishes. As you pointed out I didn't mention my case/requirement as it is too lengthy , though such disclosure would help friends like you to understand the case so that they can tender their valuable advices and suggestions. However I am unable to agree to your point that RBI is justifiable to refuse the informations, since whatever may be the reasons the RBI is bound to reject the request only on the grounds of section 8 of the Act. I have underwent much harassment to get my grievances redressed by RBI and finally I had to take recourse to RTI Application. Thanks once again for your response. regards

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TSBehera

Dear Sharma OP ji !

I have not given any examples of my own creations , rather the postulations on law are given by the masterpieces of law on this earth and the contentions well accepted by our hon'ble Supreme Court,the apex court , whose decisions are bound by law to be accepted by the sub-ordinate courts including the comissions.

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opsharma

Mr Behera,my sincere regrets if my remarks touched your sensibilities.As I understand,aim of discussions is to maximise relevant points/arguements/literature/existing decisions,to help out the information seeker.context and relevance are the operating words.

thanks.

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jps50

CIC as under:

A Through this Order the Commission now wants to send the message loud and clear that quoting provisions of Section 8 of the RTI Act ad libitum to deny the information requested for, by CPIOs/Appellate Authorities without giving any justification or grounds as to how these provisions are applicable is simply unacceptable and clearly amounts to malafide denial of legitimate information attracting penalties under section 20.1 of the Act CIC/OK/A/2006/00163 dtd

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umapathi.s

thanks to JPS50 for the relevent points and decisions of CIC. These points may help me during hearing. regards (Umapathi.s)

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karira

Umapathi.S,

 

Congratulations !

You really prepared your self very well.....

 

Most of the points raised by you in your Second Appeal and Complaints have been ruled in your favour by CIC.

 

Please see:

 

http://cic.gov.in/CIC-Orders/PB-23042008-04.pdf

http://cic.gov.in/CIC-Orders/PB-23042008-05.pdf

 

I have just one doubt about File No. 1234, where CIC has ruled:

 

File No.1234: In this appeal the appellant is aggrieved that the information which he has received has not been certified. However, during the hearing, it was clarified that whenever the documents are enclosed along with a covering letter on the letter pad, the enclosures are deemed to have been certified.

 

Can any member with legal background and knowledge clarify if this position is correct ?

 

Umapathi.s, with your experience of a CIC hearing under the belt and well thought out arguments, I request you to visit this forum often and help many others.

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umapathi.s

yes sir, you are right in asking the clarification about the certified copies of the documents. generally whenever the citizen ask the documents, it should be certified by the CPIO as "true copy" with his seal and signatures.I have been requesting the same in application, and appeals. but, I still feel that the decision of the cic is wrong. though covering letter of the CPIO bears his signatures, the documens accompanying the same are not certified and hence I insisted that these documetns shuld be certified so that the geniueness of the documets can be assured.in other cases, like in the case of "central Vigilance Commission and RBI the documents of every page is certifed by the official as "true copy". but in this case despite my specific request the CIC brushed aside my request. can you through some light how to overcome this confusion ?.

 

Regards

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slchowdhary

should we not file a review petition with CIC?

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karira
should we not file a review petition with CIC?

 

But what is the legal position ?

It is better to file a review petition with complete facts and well thought of arguments. This is because as per CIC (Management) rules, a review can be granted based on the discretion of the CIC. Therefore reasons for review have to be watertight in order to avoid disappointment.

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jps50

Section 2 [j] (ii) mandates certified copies of documents or records. Even if covering letter is signed by cpio, it is difficult to prove in court/tribunal that the enclosures are the same which have been forwarded by cpio under the covering letter signed by him. In my friend's case, 201 papers were enclosed to letter by cpio without certifying these papers, though we had asked for certified photocopies. The matter is now pending with CIC, with other issues against a nationalised bank.

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karira

jps50,

 

Umapathi has already asked for "certified copies".

He got them with a signed covering letter and the copies attached (without certification)

He was aggrieved by this and therefore went for First Appeal and Second Appeal.

 

In the second appeal, the respondent has claimed that copies given with a signed covering letter is as good as "certified copies". CIC has agreed with the respondent.

 

The review petition has to filed on this point.

 

Your point about applicability of Sec 2(j)(ii) is already over and done with.

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TSBehera
CIC as under:

A Through this Order the Commission now wants to send the message loud and clear that quoting provisions of Section 8 of the RTI Act ad libitum to deny the information requested for, by CPIOs/Appellate Authorities without giving any justification or grounds as to how these provisions are applicable is simply unacceptable and clearly amounts to malafide denial of legitimate information attracting penalties under section 20.1 of the Act CIC/OK/A/2006/00163 dtd

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opsharma

Are you looking for CIC decision on Umapathi's cases? Karira has already posted these at 13 above.

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