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karira

Hearing on MPs, MLAs as “public authorities”

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karira

As reported by N. Rahul in thehindu.com on 15 September 2008:

The Hindu : Andhra Pradesh / Hyderabad News : Hearing on MPs, MLAs as “public authorities”

 

Hearing on MPs, MLAs as “public authorities”

 

 

2008091553990401.jpg

Wajahat Habibullah

 

HYDERABAD: The Chief Information Commissioner of India Wajahat Habibullah will hear on Sundayat New Delhi a case whether Members of Parliament, Assemblies and Legislative Councils could be judged as ‘public authorities’ so that they were liable to scrutiny by public about developmental activities in their constituencies.

 

RTI Act

 

Mr. Habibullah told The Hindu here on Sunday that the case came up before him after some petitioners unsuccessfully appealed to a few MPs seeking information on developmental programmes under the Right to Information (RTI) Act.

 

The Lok Sabha Secretariat also expressed helplessness to resolve the problem.

 

It was then that the matter came up before him with an argument that unless MPs were made public authorities, they could not be held responsible for dispensation of information.

 

I-T issue

 

Mr. Habibullah recalled the intervention of the commission a couple of months ago making political parties disclose to public the Income Tax paid by them.

 

It gave a ruling that the public had a right to know the amount of Income Tax paid by the parties as they were not private citizens.

 

Another order of the commission declaring the Stock Exchanges, Power Distribution Companies and the Indian Olympic Association as public authorities was challenged in court.

 

While declaring them public authorities, the commission felt that they should include organisations owned, controlled or substantially financed by the government.

 

The Union Public Service Commission (UPSC), however, lost in the Delhi High Court a petition challenging the order of the Central Information Commission that the UPSC disclose cut-off marks of candidates taking its examinations after the declaration of results.

 

Computerisation

 

The Chief Commissioner regretted that not enough work had gone into computerisation of records for the success of RTI Act.

 

The basic structure of the act rested on computerisation, he said.

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ganpat1956

As reported by "The Hindu" News Update Service(Sept 16,2008)

 

New Delhi (PTI): Central Information Commission (CIC) is seeking a legal opinion whether MPs and MLAs are bound to respond to queries sent to them under the Right to Information Act.

 

The CIC decided to seek the opinion after some RTI applicants approached the Commission over the issue alleging that they had not got replies from UPA Chairperson Sonia Gandhi, Rahul Gandhi and several others elected representatives.

 

The hearings in the matter started yesterday before the Chief Information Commissioner Wajahat Habibullah where lawyer Prashant Bhushan presented his arguments.

 

"We heard first set of arguments but there was no one from the respondent's side to answer. Our registrar kept the point of respondent.

 

"We are seeking legal opinion on the matter and will soon announce dates for further hearings," Chief Information Commissioner Wajahat Habibullah told PTI.

 

There are a growing number of complaints that MPs and MLAs despite being public representatives have avoided questions sent to them under the RTI.

 

A resident of Uttar Pradesh Awdhesh Mishra had sought information from Congress MP Rahul Gandhi regarding his recommendations made to several social groups and NGOs working in Amethi.

 

When Mishra did not get any answer from the MP, he approached the Lok Sabha secretariat which said that the information is not with it and can only be given by the MP. It added that MP was not a public authority as defined under the RTI Act.

 

The Hindu News Update Service

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vijendra singh

Mr Wajahat should know that MLA/ MP is funded sufficiently by govt. He obtains salary/ allowances / claims / food / house etc from the public funds. His all acts are for public. He is elected by public . Then how & why he is not under RTI ? Commonsense of a common person says that MP /MLA is certainly under RTI Act 05. Legal opinion can define the things as per convinience.

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karira

 

"We heard first set of arguments but there was no one from the respondent's side to answer. Our registrar kept the point of respondent.

 

 

 

This is a very objectionable precedent !

 

If respondents do not come, the order should be ex-parte.

 

CIC had issued a "Public Notice" on 31st July 2008 on this issue.

http://www.cic.gov.in/PublicNotices/NoticeForHearing-31072008.pdf

Copies were marked to the the Secretary Generals of the Lok Sabha and Rajya Sabha, with a request to circulate amongst all MP's. Still the respondents did not turn up. That means "they are not interested in pursuing the matter further" (A line oft repeated in CIC/IC orders when the appellant is absent for a hearing)

 

The Registrar of the CIC has no business to keep points for anyone and hold brief for anyone.

 

As per Sec 4 disclosure on the CIC website, the section on "Powers & Duties of its officers and employees" (http://cic.gov.in/CIC-Section4/Section-4-1-b-ii.pdf), the duties of the Registrar are described as:

Overall supervision of all administrative work,

monitoring the work of the Registry and any

other work delegated by CIC as per section

12(4) of the RTI Act 2005

 

Further, Sec 12(4) of the RTI Act speaks about "general superintendence, direction and management of the affairs of the CIC........."

 

Nowhere is it said that the Registrar has the powers or has the duty to keep brief/point for respondents or that the CIC can delegate such powers to Registrar.

 

If the CIC can delegate powers, that also means he has the power to exercise it himself ! Does that mean, that a day will come, when the CIC himself will hold brief and keep point for a respondent ?

 

There are thousands of orders of the CIC and IC's where the appellant has not been present and the orders have been passed ex parte. Why did the Registrar of the CIC not "keep the point of the appellant" in those cases ? What was he doing then ?

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sidmis

"We are seeking legal opinion on the matter and will soon announce dates for further hearings," Chief Information Commissioner Wajahat Habibullah told PTI."

 

Legal opinion on what? From whome?

 

CIC is still seeking legal opinion on this despite putting up a notice months back. They had ample time for the same.

 

Is this dilly dallying by CIC is due to the parties involoved ?

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gurkirat.dhillon

Hi,

 

what is the latest on this matter ?

 

This is the most important case of the year , if it goes the way of the

 

common citizen, India will become a very nice place .

 

I mean if MP's and MLA's can be held accountable under RTI and the CIC rules

 

so..

 

rgds..

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rajub

A very important point raised by Karira in post #4.

 

Has the case been dumped by the CIC?

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shail6675

Has any decision been given in this regard!! This is ridiculous decision and should be contempt as we can and at all levels.

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monicasood2009

If we see section 2 © (viii) of Prevention of corruption Act, 1988. it defines public servant as any person who holds an office by virtue of which he is authorized or required to perform any public duty.

So MPs and MLAs should be covered under this section.

A clarity of law is needed for this important aspect. Orissa high Court judgement of 1993 supports this arguement, but that later got merged in SC judgement, so will not have a binding effect.

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R Madhok

Kindly go through Prevention of Corruption Act-1988, U/s 2© Public servant means (i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty.

1. Whereever the words public servant occur they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.

With further elaboration of the definition we should go through:Bribery, corruption, criminal misconduct (Prevention of Corruption Act, 1988) Definition:

Under 2.5. A Minister, Prime Minister and Chief Minister inclusive, decidely a public servant in terms of Cl. (12) of Sec. 21 IPC itself, which corresponds to Cl. (i) of C,.© of Sec. 2 of the 1988 Act. The Supreme Court held that a Minister is appointed and dismissed by the Governor and is therefore subordinate to him that he gets salary for the public work done or the public duty performed by him and that the sadi salary is paid to him from ht Government funds (M. karunananidhi Vs. Union of India, 1979 Crl.L.J. 773. AIR 1979 SC 598).

2.6 M.L.A., it was however held, is not a public servant under Sec.21 IPC but he comes within the purview of the new cl.(viii) of cl.© of sec. 2 of the 1988 P.C.Act as, as held by the High Court of Orissa, an M.L.A. “holds an office” and “performs public duty” (Habibulla Khan vs. State of Orissa, 1993 Crl.L.J. 3604). In the appeal, the Supreme Court proceeded “assuming” that M.L.A. is a public servant (Habibulla Khan vs. State of Orissa 1995 Crl.L.J.2071). In a later decision in the case of P.V. Narasimha Rao vs. State (C.B.I.), 1998 Crl.L.J.2930 (decided on 17-4-1998), a 5-judge Bench of the Apex Court laid down that a Member of Parliament holds an office and by virtue of such office he is required or authorised to perform duties and such duties are in the nature of public duties. An MP would therefore fall within the ambit of sub-cl.(viii) of cl.© of section 2 of the Prevention of Corruption Act, 1988 even though there is no authority who can grant sanction for his prosecution under section 19(1) of the Act. Sanction is not necessary for the court to take cognizance of the offences and the prosecuting agency shall, before filing a charge sheet for offences punishable under sections 7,10,11,13 and 15 of the Act against an M.P. in a criminal court, obtain the permission of the Chairman of the Rajya Sabha or Speaker of the Lok Sabha as the case may be.

So MP's and MLA's can be held accountable under RTI and the CIC as they are public servant and so comes under the purview of RTI Act, 2005

Rajneesh Madhok,

B-xxx/63, Nehru Nagar,

St. No. 2, Railway Road,

Phagwara (Pb)

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R Madhok

I am very thankful for Karira Sir, who has provided very valuable guidance regarding MPs, MLAs as public authorities. It has been declared in the days of elections that the Justice must not only be done but must also be seen to be done. It is time that they are also brought into the ambit of RTI so that citizens have the right to ask them about the projects undertaken by them for the welfare of general public. This is a matter of great concern.

Rajneesh Madhok

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pooorabyoura

Actually I am happy that individuals have been ignored and that the institutions/bodies they belong to have been held responsible for information about such individuals. This, if taken seriously by such institutions/bodies , is a wise step towards strengthening RTI as an "institution". In practical terms, the individuals have been put under closer and tighter scrutiny, and obtaining information about them been made that much easier.

 

 

 

My congratulations to the decisionmakers!! They have shown that they can defy activist pressure in the discharge of their duties.

 

Regards,

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