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  1. An Interview with Shailesh Gandhi, convener of the National Campaign for People's Right to Information by Rediff.com readers on the Right to Information Act. The Right to Information Act 2005 is hailed as a revolution in India's evolution as a democracy. It empowers the ordinary citizen who has hither-to been armed with only his vote, with the tools of information that propel government decisions. Thanks to the legislation, citizens can seek -- and get within 30 days - information on how the government arrived at decisions, be it about his ration card application or the money spent on lighting a bridge outside his home. Shailesh Gandhi, convenor of the National Campaign for People's Right to Information, answered questions put forth by rediff.com readers on the Right to Information Act. Here's the transcript: ff asked, Do you think RTI Act should be all pervasive? Shailesh Gandhi answers, Transparency and truth would help everyone. tester asked, I have been cheated by a foreign bank and want to sue them legally...can any one of you guide me please Shailesh Gandhi answers, This would not be covered under RTI.tester asked, Hi, I will like to know if we can get the RTI act for foreign bank who operate in India or how is it possible Shailesh Gandhi answers, We can get information on foreign banks to the extent that the RBI or any other regulator under the law can access. pajama asked, Do you think the RTI act should encompass the judiciary? Shailesh Gandhi answers, The law covers the judiciary very clearly and it is not the matter of anybody's opinion. desi asked, Hi Mr Gandhi, How do you think common man should benefit from RTI? Shailesh Gandhi answers, The test of RTI will be how much the common man benefits. If the common man does not benefit, it will remain one more tool in the hands of the powerful. The popularity of RTI is its potential promise to really benefit the individual common citizen. sanjay asked, Sir, can we give someone the copies of Cashbook, copies of Tenders without informing the Third Party. Shailesh Gandhi answers, Copies of cashbook of third party cannot be given. Tenders and quotations must be given since there can be no exemption clause under RTI, which would normally cover these. pramod asked, Sir, Are the unaided, recognised public Schools under purview of RTI? IF yes, who is PIO in their case - is it Dte of education or Principal Shailesh Gandhi answers, Unaided schools or colleges are not under the purview of RTI. ASC asked, how to catch people and get their details who default paying government dues Shailesh Gandhi answers, You could ask for details of defaulters and the amounts of default. Simultaneously, you could ask about action taken against defaulters, which would achieve the desired objective better. cxvczxv asked, how to get upsc cut off marks Shailesh Gandhi answers, In my opinion, they should be available though there is some controversy about this. Going by the letter and spirit of the RTI, the UPSC cut-off marks should be available. daya asked, Can we get All the accounts of the properties of MLA,MP and IAS and State administrative officers and their dependents by RTI. Can any action be taken to forfeit the ILLGOTTEN wealth ? Shailesh Gandhi answers, The accounts properties of MLA,MP, IAS and state administrative officers are supposed to be submitted to the govt regularly and hence can certainly be accessed. sp asked, Mr.Gandhi is there a website or from where we can learn more about RTI? Shailesh Gandhi answers, I am giving you two or three websites. there are others as well. www.righttoinformation.com www.righttoinformation.org www.satyamevajayate.info Mahesh asked, Can I get the copies of my Income Tax Returns from the IT Dept under the RTI Act. My petition was rejected U/s.8(1)(j) Shailesh Gandhi answers, This should 100 per cent be available and the rejection is wrong. Please do file the appeal arguing that you cannot possibly invade your own privacy.anandpankaj asked, Hi Sir, I have recently filed an application with a reputed public school in Delhi seeking certain information. My sense is that they will either not provide information in 30 days or may come back saying that they are not a public authority as defined in RTIA, 2005. What is the recourse for me? Shailesh Gandhi answers, If the public school is substantially aided by the govt or controlled by govt, then they are obliged to give you information since they are a public authority. In spite of this if they do not, file a first appeal and subsequently if required a second appeal to the information commission. cxvczxv asked, some state public service commissions have been ordered to disclose answer sheets are they obeying the orders by respective information commissions? Shailesh Gandhi answers, I am not exactly sure about the current position, but I think some case has been filed in the courts on this. anandpankaj asked, Sir you say that recognised unaided public schools are not covered but the CIC in a recent order against Sanskriti School, New Delhi termed them as public authority because they had accessed government funds/resources for infrastructure at the time of their inception. This order was passed by the IC, Mr Kejriwal and is a strong precedence. Shailesh Gandhi answers, What you are describing means there is funding of the government. deven asked, How many days govt officials take to provide information? and if he or she failed to reply what is the course of action Shailesh Gandhi answers, The public information officer has to reply to you in 30 days. Failure to do this without reasonable cause can invite a personal penalty of Rs 250/day. In case you do not receive a reply in 30 days, please ensure that you file your first appeal to the first appellate authority within 60 days of your RTI application. vijay asked, as an individual do I have the rti why a company is withdrawing a product from the market and to reintroduce it again with a different name ? Shailesh Gandhi answers, No bharati asked, How to secure information on Compensation on land acquired by Municipal Corporation for Road widening without giving and accepting any claim (even not single paise) Shailesh Gandhi answers, One method could be to get the record of the previous owner and then ask under RTI what compensation was paid for acquiring this land. pavithran asked, hello sir good evening. is it possible to get details regarding departmental promotional committee proceedings as well as the proceedings relating to appointments which are closed door sessions and said as confidential through RTI methods. Shailesh Gandhi answers, Yes. sp asked, Sir Can I ask for the mark sheets of my college examinations which were held between 1999-2002 Shailesh Gandhi answers, If your college is govt-aided and the mark sheets are available, you can get them under RTI. Please remember, information has to exist for you to be able to get it. sandeepjain asked, hello, thanks for your contribution with reg to RTI. Can I ask PSU to give information regarding pricing policy to various customers. We are already customers to Hindustan Copper Ltd. We doubt difference in their sales policy Shailesh Gandhi answers, This might be difficult unless you feel that for the same quantities and terms they are charging different prices. However, I think their need for commercial confidence and decision making would probably lead to their denying this information. Mayank asked, Is there any website available to submit request for any information under RTI? Shailesh Gandhi answers, There is no such website (But things have changed now and we are having an online facilities now) ali asked, I want right to information on line. so all you query should be submitted online also Shailesh Gandhi answers, Presently, it is not very practical though the law does have a provision. The main reason is that most govt offices are not email savvy and the other problem is linking the application fee of Rs 10 with your email. Lu asked, Photocopies of Cash book can be given to anybody. Shailesh Gandhi answers, Whose cash book are you referring to? sp asked, Sir I would like to know the scope of RTI , whether it is only regarding matters of our concern or matters which we have an interest in or general cases like details regarding land ownership of other person Shailesh Gandhi answers, Under RTI, you need no purpose or locus standi. However, you should read the 10 exemption clauses of the RTI Act given under Section 8(1). PSen asked, Dear Sir, I want to see my ACR .is it possible using RTI? thanks a lot Shailesh Gandhi answers, Yes, as per the RTI Act, it is certainly possible to see your own ACR. Mahesh asked, Sir can the SC direct the CIC to furnish information or the CIC is the final authority Shailesh Gandhi answers, As far as giving the information is concerned, the information commission is the authority to order giving of information. The SC can only be approached if someone feels that the law has been wrongly interpreted by the information commission. RTIGenie asked, Do you think the rules of Delhi High Court contravene the RTI Act? If so, what can we do about it? Shailesh Gandhi answers, Unfortunately, most courts across the country have been defiant of the RTI law. I have really no solution as to how we can counter the lawlessness of the law interpreters. Raju asked, Hi, Mr. Gandhi ! Sir, some times RTI is used to ask for information harass the PIO or the Public Servant as it would take far too much labour and time to compile. Also, too many RTI applications made in too many repetitive presumptive allegations. It seems to border on absurdity. Is it mandatory to respond to everything asked ? Is there any remedy where such a harassing motive is visible? Shailesh Gandhi answers, The RTI act provides for no such remedy. However, if it requires very large amount of resources to furnish the information, then it can be refused. However, one must always remember that giving information and keeping records properly should be the norm. tejas asked, Sir, Is it possible for us to apply online to any govt. organisation asking for the details under RTI Act? If Yes, How? Shailesh Gandhi answers, Theoretically, it is possible. But in practice, it doesn't work presently in most cases. Coelho asked, Sir my organization has making decisions that have no basis. Can one seek information on how they could arrive at such decisions, through RTI? Shailesh Gandhi answers, If the organisation is a govt organisation or a govt-aided organisation, then yes. Prasad asked, Dear Sir, Can the Public Authority deny on the ground that the information sought is personal nature and is not having any public interest? Shailesh Gandhi answers, Certainly, if your question if your query is an invasion on someone else's privacy and has no public interest, it would be refused. It is necessary to realise and understand that all citizens also have right to privacy. vbkondalkar asked, Hello Sir, I have prepared a small book consisting nearly 25 pages on the RTI can i forward it you to comment on the same Shailesh Gandhi answers, You can forward it to my email. Coelho asked, Sir Can queries regarding decisions be made under RTI Shailesh Gandhi answers, You can ask for information on the basis of which these decisions were arrived at. aries13 asked, I want to get details of all arms license issued in my district in the last 5 years. Will RTI suffice ? Whom should I give the Rs 10 fees ? Shailesh Gandhi answers, You will have to find out the authority, which gives the arms licenses. You can ask the public information officer of the authority and also pay the fees to to him. Ramkumar asked, Sir, Whether the Govt. employee who seeks info through RTI act should apply through proper channel? Shailesh Gandhi answers, Under RTI, all citizens of India have right to apply and there is no 'proper channel.' rami asked, I didn't get my pf amount and also tax refund. Is there any possibilities are there to get my amount through rti act? Shailesh Gandhi answers, This is the kind of problem for which RTI acts very well. You ask about the progress of your file specifically asking which officer had the file for how many days and what action did he/she take on it. Also ask for the norms for doing work as per Section 4 of the Act. teomal asked, can we know i.e. have information about agreements made govt of India with maharaja of Kutch and Kashmir Shailesh Gandhi answers, To my understanding, Yes. scp asked, With the latest High Court judgment asking UPSC to divulge the preliminary results , can I apply for old mark sheets also ?? Shailesh Gandhi answers, If the old mark sheets are kept by the UPSC, you will get them. PSen asked, why CIC does not contain a High court or Supreme Court judge? will it help RTI cause? Shailesh Gandhi answers, Some of the commissions do have retired judges. And I am personally not at all impressed or happy with the way our courts are functioning. I think the commissions should have a mix of various professions. But I am not really in favour of people from the judiciary to whom delays are a habit. prashant asked, it is necessary and bound to the govt organization to place the board stating the names and designations of PIO Shailesh Gandhi answers, This is a requirement of the Act. However, as an applicant, you can submit your application to the PIO of a particular office and need not worry about his name. vijay asked, sir, in continuation of my query, pl tell whether I have rti to know why a product is sold by a company for a period of time and then withdraw it from the market. isn't it something like the mnc's are taking advantage of our legal loopholes. Shailesh Gandhi answers, No, there is no such provision. teomal asked, should already information supplied through be published on web sites Shailesh Gandhi answers, It would be a good idea to do this. But I don't think this is being done by most organisations. sp asked, sir regarding my prev question is there a govt rule which states how long the papers are to be retained because now under RTI it would become compulsory for such institutions to maintain such records Shailesh Gandhi answers, How long records of any nature will be kept is primarily the prerogative of the organisation depending on its needs for record-keeping. teomal asked, can supreme court and I courts give particulars of orders to third parties Shailesh Gandhi answers, Even without RTI, this is being done. anandpankaj asked, Sir I have filed two identical applications to two different bodies, both of who can provide information on the subject. What should I do if there is variance in their reply? Who do I move to? Shailesh Gandhi answers, If there is a variance in their reply, make a complaint to the information commission that one of them has given you false information. prashant asked, for making appeal it is possible that person other than the applicant be present at the appeal hearing Shailesh Gandhi answers, The law does not make any special proviso. However, it is commonly accepted that someone else can appear for the applicant if a letter of authority is given. ak asked, Is it mandatory to give all replies under RTI Act? Shailesh Gandhi answers, Yes. The reply can be the information is not available or exempt but giving a reply to a citizen is a normal courtesy, which the government should be following. The RTI act only reinforces this. ajoyksen asked, Sir, I would like to get interest calculation for determination of EMI against home loan from ICICI. Am I eligible & can I ask them to give in writing? Shailesh Gandhi answers, I am not sure but ICICI is not owned by the government. However, if the govt has a significant take, then it is covered and you can ask for the information. Tushar asked, I am in central govt job. Every year we use give Annual assessment report(AAR) in prescribed format. But we don't know, what our reporting authority is doing regarding gradation(marking. Can we see our AAR/CR through RTI, Please guide us. Shailesh Gandhi answers, You can access your own ACR. varun asked, Aren't nuisance-mongers trying to abuse n misuse this wonderful piece of legislation, sir? Shailesh Gandhi answers, Any human endeavour or activity will always have some people using it wrongly, but overall the RTI is a great boon for citizens of India. Abhinav asked, How to use RTI by post Shailesh Gandhi answers, I personally sent all my RTI queries through registered AD post or courier. The POD that we get is the proof that the RTI application has been given. Saivani asked, Can the information be denied stating that it is having commercial interest? Shailesh Gandhi answers, Some commercial interests are safeguarded under RTI if there is no public interest. jayesh asked, May I get the copy of last 10 years question papers for the post of P&A Officer and IRO of Graduate Trainee Test conducted for ONGC, MRPL or any company of ONGC Group under RTI Act. Shailesh Gandhi answers, Yes. if they are available with the public authority. Question: - You think some peoples are misusing the Act and started job of white collar extortion, if yes what could be steps you think to stop them and the benefit of intention of the Act should be delivered to poor people Shailesh Gandhi answers, Some public authorities have talked of this and my suggestion is that they should put the names of such applicants with the questions and their answers in public domain. This can be done on Internet or even on a notice board. sudhakar asked, why is the fee for rti application not standard in all the states Shailesh Gandhi answers, There is very great need for a uniform fee, application format and payment mode to be uniform throughout the country. This will come about only when citizens exert themselves to bring this about. nlad asked, Is there any guideline available on writing RTI requests as how they should be drafted ? For eg : Whether it should be written as "I would like to know" or "I demand to know". Shailesh Gandhi answers, The better method is to only state: "I want the following information" udai asked, Sir, after getting information under RTI if I find the information does not matches with the actual implementation. Can I file a case in court? Shailesh Gandhi answers, The court is always available but is a fairly painful exercise. If you use RTI and bring into public domain things that are wrong, it does have a salutary effect on the govt. dev asked, sir I want to see CBI report of Nithari. Can I? if yes how. Shailesh Gandhi answers, Presently, this may be denied by saying that the investigations are on. shelendra asked, Mr. Gandi- can we seek details to collection and expenditure accrued by GOI under some head (say education cess) for last FY (06-07). I am interested in following details: 01. Amount collected state wise. 02. Amount spent on creating the facilities (state wise). 03. Amount spent for paying the salaries or revenue expenditures (state wise). 04. The total surplus or deficit for FY 06-07. Shailesh Gandhi answers, Yes, if accounts are maintained in this manner. Coelho asked, Sir, Can a officer designated as Assistant Public Information Officer seek information from his own office when certain irregularities in functioning have been detected and no action is taken? Shailesh Gandhi answers, The assistant public information officer is also a citizen of India and therefore has a right to ask for information under RTI. sucker asked, are there any other countries having acts like RTI sailesh??? Shailesh Gandhi answers, Around a hundred countries now have similar acts. Freedom of information and right to information are synonymous words and the first such act came in Sweden in 1766. sp asked, Can we use RTI to get information of the activity in the Lok Sabha and Rajya Sabha Shailesh Gandhi answers, All information that is recorded is available. unnikrishnan asked, Sir, What we do in case if the information is not given by a particular Govt. Dept in a stipulated period. Shailesh Gandhi answers, You can file an appeal and ultimately move the commission asking for penal provisions to be applied. Pravin asked, Hello Sir, can we get the information from tahsildar related NA Shailesh Gandhi answers, Yes. raki asked, hello sir, what happens if we did not get the information that we want to the respective officer? what should we do if we didn't get the information we want from the respective officer. should we file a case in the court? Shailesh Gandhi answers, In such a case, please file a first appeal. It is useful to follow the simple process of RTI, which can be done sitting at your house. Anand asked, Sir I have applied for passport in lucknow office in feb 2005, all the process has been complete. I haven't got the passport ,I applied for RTI regarding the passport. It has been more then 30 days and still don't have any information. I want to ask is it still working, or it's just an act which is there but does not get implemented. What should i do now next? Shailesh Gandhi answers, Please file a first appeal and if your particular passport office is really lawless and still does not reply, do file a second appeal to the commission. A lot of govt offices are used to adopting an arrogant attitude towards citizens and a consistent use of RTI will bring about a positive change. scp asked, Sir ,under this act Can I ask to divulge the cabinet discussions or the frivolous India-Pakistan talk details ?? Shailesh Gandhi answers, You cannot ask for minutes of the Cabinet meetings but you can ask for the decisions taken at these meetings and the basis on which these decisions were taken. aries13 asked, We are a Residents Welfare association ( all are senior citizens) but we are not registered - just a voluntary body. Can we use RTI collectively ? or our society needs to be registered in order to file RTI application ? kindly clarify Shailesh Gandhi answers, RTI is available to the individual citizen of India. There is no need to form any society to use this. You or any of your members can use the RTI act. vbkondalkar asked, Do you think the Government Machinery are well educated enough to implement the Act. Shailesh Gandhi answers, At present, the govt machinery and society in general does not have the attitude to observe all laws. However, all of us need to work towards this. harshada asked, is any such thing which cannot b included in this act? Shailesh Gandhi answers, Except the 10 exemptions listen under Section 8 (1) and some of the security organisations mentioned in the act, all other information is available. HSB asked, Hello Sir. Its not very clear whether File notings for Public servants can be made public or not. Can you please clarify the same Shailesh Gandhi answers, File notings are clearly included in the definition of information as per the act. The information commissions have also consistently given rulings on this. The controversy however continues because the department of personnel and training of the Central govt continues to maintain an illegal stand. Awadhesh asked, Sir my builder is maintaining the society where we lived. he charged Rs 1400/ per month per flat. Is there any provision in RTI to ask my builder to provide me the details of the expenses like electricity bill for the lifts, plumber /gardener/ security payments etc Shailesh Gandhi answers, No. Prasad asked, Dear Sir, Can the Public Authority deny on the ground that the information sought by an individual with regard to his own ACR's and other files, is personal nature and is not having public interest? Shailesh Gandhi answers, An interpretation of this nature, which says that one can invade one's own privacy is laughable. This would be like saying I can't see myself undressed. aries13 asked, In Jharkhand RTI is in very dire straits. Recently officials in the District Magistrate laughed when I went to submit an RTI application. They said it is not valid in Jharkhand. Is it true ? Shailesh Gandhi answers, It is certainly valid in Jharkhand, which is a part of India. If they refuse to take it in person, please try and send it by registered AD. vbkondalkar asked, When the appeal in the Information Commissioner stand dispose off then we do not have any remedy in the case, and don't you think Mr. Suresh Joshi have acted in some case in bias manner, I think the provision to appeal in the directly High Court or Supreme Court should be get incorporated after the appeal been heard by Information Commissioner Shailesh Gandhi answers, If a citizen feels that the information commission has not interpreted the law properly, there is a provision for going to court. sp asked, Sir Regarding the question asked by aries13 , isn't it invasion of privacy when one asks for the details of all arms licence issued. The detail is not going to help anyone in anyway Shailesh Gandhi answers, I was referring to details in terms of numbers issued and so on. The issue of whether the names should be given or not would lie in a grey area of the law. Mahesh asked, Can the sister of a Labour ask information about from a PSU (Employer)about the suspension/dismissal of her brother. Shailesh Gandhi answers, The sister can ask. But it would useful to attach a letter from the brother saying that he has no objection to the information being given under the RTI application. Otherwise the PIO might say that this would be an intrusion on the privacy of the brother. Alternately, it could be a good idea for the aggrieved employee himself to ask. aries13 asked, Can I ask the Municipality, Notified area for copies of building plans of my neighbour using RTI ? Shailesh Gandhi answers, Yes. kja asked, What is the time limit within which a reply can be expected on any question asked under RTI?? Shailesh Gandhi answers, 30 days. Prasad asked, Dear Sir, Even after closing an investigation, the Public Organisation is responding that information can not be disclosed as investigation in the case is going on. As Charge sheet is filed in the case, can they refuse the information? Shailesh Gandhi answers, If chargesheet is filed and information is being refused, it is wrong and you should appeal. vbkondalkar asked, don't you think the upper level appellant authorities are bias in case of RTI, because the appellant authorities are from the same organisation and they normally try to protect the mistake done by their juniors Shailesh Gandhi answers, The appellate authority is a device basically for a review within the organisation. In the absence of this, the likelihood would be that the load on the information commissions would be impossible to handle. aries13 asked, Does State bank of India com under RTI ? My loan application was rejected can I ask the reasons using RTI ? Shailesh Gandhi answers, SBI does come under RTI. You can ask for the details. sp asked, sir Can we use the RTI act to get board resolutions general/special of public sector companies Shailesh Gandhi answers, Yes. Ramkumar asked, I have asked some info about the complaint lodged against me: i) Copy of complaint ii) Copy of supportive evidences and proof submitted by the witness iii) Decision taken by the authorities But the info has not been provided to me under clause 8(h). Guidance please... Shailesh Gandhi answers, If the investigation is continuing, the information is likely to be refused. Rajat asked, Sir, My retirement benefits are pending for last 8 yrs with department . Can I ask explanation from the department. Shailesh Gandhi answers, You should use RTI using the simple device of asking the progress of your case or file. If you have not sent any written application in the last few years, you could first sent the written application and then follow up with an RTI asking for the progress. teomal asked, will you like to publish answers given by you to some web site Shailesh Gandhi answers, All my answers are in public domain. aries13 asked, Are co-operative housing societies covered under RTI ? My society refuses to answer RTI application. Can you site some judgements ? Shailesh Gandhi answers, Cooperative societies are not covered unless they are govt-funded. http://www.rediff.com/news/report/rtichat/20070417.htm
  2. Right to Information is Slowly but Surely Being Suffocated BY SHAILESH GANDHI ON 07/08/2015 - The Wire Those who say that the Right to Information has made a great impact point out that it is responsible for creating the culture of transparency in the government. The widespread usage of RTI is proof of this. This claim is reasonable and is obvious in the empowerment of citizens and the scams it has exposed. The sudden feeling that corruption has risen in the last few years, and the India Against Corruption movement were also partly the outcome of greater confidence of citizens to demand and get accountability. However, accountability and transparency have not yet become embedded in the DNA of those with power, and this is a change that will take much longer. Indeed, there are now worrying signs that we may have reached a point of stagnation, which could lead to RTI’s regression. This cannot be good for the citizen. Many techniques have been developed by the officers to stall RTI inquiries. At times absurdly high charges in tens of thousands are sought as costs for gathering the information. Another way is to offer piles of files for inspection without indexing and pagination. I once asked a government department about a list of transfers of senior officers in violation of Act 21 of 2006; they sent it to over 30 different offices. One more technique is to transfer the application multiple times. All these are against the letter and spirit of the law. First let us analyse the reasons for RTI’s success and wide proliferation. The main reason was the fact that it was reasonably well crafted because of active civil society intervention and participation. There were people’s movements like Mazdoor Kisan Shakti Sangathan which had championed this law. The teeth of the act were the penalty provisions which for the first time provided for a financial penalty up to Rs. 25000 to be paid by a public information officer, if he/she did not provide information without reasonable cause. This for the first time recognised the sovereignty of the individual citizen. Government fears Civil society organisations and individuals very enthusiastically took upon themselves the job of educating people. Citizens took ownership of this law. Government officials feared the Information Commissions and felt they would have a difficult time if the matters went to courts in writs. Among the first few cases which went to courts, various high courts acknowledged that this was a fundamental right of citizens which had been earlier defined in various Supreme Court judgements, such as the in Raj Narain case, R.Rajagopal, SP Gupta, ADR-PUCL and others. However after the first few years of this honeymoon, the resistance to RTI began building up within the establishment. The establishment soon realised that it had unleashed a genie, which curbs its powers for arbitrariness and corruption. In less than a year the government decided to amend the act to dilute its effectiveness. There were intense protests across the country by citizens and the government had to retract. After that there were at least two more efforts to dilute the Act but these too failed. The last time was when the Central Information Commission ruled that six major political parties were ‘public authorities’ as defined by the law and hence would have to give information in RTI. The parties ganged up together so that they could carry on with their opaque operations with black money, undemocratic working and in contravention of their constitutions. Citizen opposition managed to again stop this. But political parties have jointly decided to defy the orders of the Commission to display their pompous arrogance. They have refused to appoint Public Information Officers or give any information in RTI. They are disregarding the orders of the Commission with not even a fig leaf of getting a stay from a Courts. Most state governments and the present one at the centre are showing great reluctance to follow the RTI Act. They have developed techniques to wear out the applicant. The lackadaisical ways of the Information Commissions have helped and emboldened them. It has been noticed that most Information Commissions impose fines penalties in the rarest of cases, as if they are imposing a death penalty. Governments often do not appoint Commissioners. Amongst the few times that the former PM spoke he had mentioned his distress at what he called ‘frivolous and vexatious’ RTI applications and the time taken up in these. A RTI query about this revealed that it was a casual observation based on his perception and irritation with pestering RTI queries by the powerless citizen. There was no evidence. The present PMO has refused to even provide information about the visitors to the PM! Why should this be so? The PM works round the clock in the service of people and such reluctance appears suspicious. Will revealing those names hurt the PM’s image? The present government appears to be institutionalising mechanisms whereby citizens know only what the government wants them to know. It is absurd that citizens who are mature enough to elect those who should govern the nation are not mature enough to be trusted about information on those who represent them. This claim is made by those who are in power, and who do not understand and subscribe to democratic working. After getting power, people’s mindset undergoes a transformation. It is a matter of deep distress that even the present CM of Delhi Arvind Kejriwal, who become nationally famous for his work in the RTI campaign, has not brought about any significant change in his government towards transparency. Information Commissioners are mainly selected as an act of political patronage. Many of them have no predilection for transparency, though they may pay lip service to it. The lack of effective working, accountability and transparency at most of the commissions is heart wrenching. Many commissioners do not understand the law, nor the basic rationale for transparency or democracy. Apart from this the lazy way in which many work has built up mounting pendencies, and it appears that they will be largely responsible for frustrating RTI. Too many exemptions It is unfortunate that the last few years have seen decisions by most quasi-judicial and judicial bodies expanding the interpretations of the exemptions and constricting the citizen’s right. Former Supreme Court judge, Justice Markandey Katju has said “I therefore submit that an amendment be made to the RTI Act by providing that an RTI query should be first examined carefully by the RTI officer, and only if he is prima facie satisfied on merits, for reasons to be recorded in writing that the query has some substance that he should call upon the authority concerned to reply. Frivolous and vexatious queries should be rejected forthwith and heavy costs should be imposed on the person making them.” A former Chief Justice of India said in April 2012, “The RTI Act is a good law but there has to be a limit to it.” At this rate and logic, we may be asked to justify why we wish to speak or express ourselves! A study of all the Supreme Court judgements by this writer appears to show that the Right to Information is being constricted by interpretation. Government departments get stays from Courts to many progressive orders of the Information Commissions. Citizens do not have the wherewithal to fight protracted legal battles. It is clear that the citizen’s fundamental right to information is now facing fairly strong challenges, owing to its great success and the fact that it has changed the discourse and paradigm of power. Our democracy is at a crossroads. The next decade could result in increasing the scope of transparency to result in a true democracy. However if the forces opposing transparency gain over the demos a regression can take place. If this happens, those in power must note that the citizen will not stand for it. Citizen groups must take active measures to defend their right, including demanding a transparent process of selecting commissioners and making the political leadership aware that they will resist any dilution of the law. RTI has to be saved and allowed to flower. Author - Shailesh Gandhi is a former Central Information Commissioner. https://thewire.in/7970/right-to-information-is-slowly-but-surely-being-suffocated/
  3. What are some of the shocking, weirdest, silliest RTI requests made in India? As Abraham Lincoln said “Government is of the people, by the people, for the people” The government is our servant and we have no duty to explain why we seek information from them. The government holds all the information in our behalf, in trust. Like a banker can’t ask you why you want to see your bank account statement, similarly the government can’t deny if you ask them how they are governing our country. With the mechanism of RTI we can actually participate in the working of the government. RTI or Right To Information is an act of Indian parliament that empowers the common people to seek information from the government. It empowers the Indian citizens to inspect the government work, take notes and get certified photocopies to know the status of work. It’s been ten years since the RTI Act came into existence to empower people and bring transparency to the system. However, people have been using it in rather unconventional ways. The queries that the government receives often fall in the range from being funny to outright absurd. In technical terms, these queries fall under the frivolous or vexatious category which means they denote an action or the bringer of an action that is brought without sufficient grounds for winning, purely to cause annoyance to the defendant. In the language of the internet, they were filed just to troll people. Here are some of the funniest RTI applications filed by people in India: 1. RTI for Indian nuclear launch code: A guy has asked in his Right To Information query undoubtedly is too much of funny. The Twitterati could not believe their eyes when Vivek Kumar, deputy secretary at the Prime Minister’s Office (PMO) and an Indian Foreign Services (IFS) officer, shared on the micro blogging site that a person has filed a RTI seeking the launch codes to India’s nuclear arsenal. Could you believe it? Does the person not know that nobody but the serving prime minister of India has access to the launch codes of nuclear weapons? Please do not take it as a joke, for statutory fee of Rs 10 had also been deposited in this regard. The application was obviously rejected. It had to be. It is a funny story of a RTI activist whose identity remained hidden. 2. RTI regarding Lord Venkateshwara: Yes you read that right. In 2014, Mr Narashimha Murthy, a social activist, allegedly filed a RTI to the TTD (Tirumala Tirupathi Devasthanam) trust questioning them whether Lord Venkateshwara's debt to Kubera had been cleared or how much was still left. His basis of filing the RTI was his allegation that the trust had hoodwinked the public by weaving a story about the Lord owing a debt. A funny RTI query has been made by a Bengalurean to Tirumala Tirupati Devastanam (TTD), asking for information about the money Lord Venkateshwara has borrowed from Kubera at the time of his marriage with Padmavathi and how much he has returned. TTD is yet to give a reply. The RTI applicant alleges that TTD is hoodwinking people by stating that the lord is still paying back interest for the principal amount he had borrowed from Kubera from the proceeds of the famous Tirupati 'Hundi'. Narasimha Murty, a Bangalore-based RTI activist, visited Tirupati and saw a board which spoke about the money borrowed from Kubera, the lord of wealth, by Lord Srinivasa and the need for the latter to pay interest on the loan among other things. "After I saw the board, I was taken aback at the way people are being fooled by this mythology. They all use god's name to make gains, which made me file this RTI query," Narasimha Murty said. Murty has addressed this RTI to the accounts officer and to the public information officer. "TTD says that the lord is still paying interest to Kubera and it is the money given by devotees that only can help in this mission. As a citizen of this country, I have all rights to know the accounts of the TTD. But even after much time, TTD has not given me any details about the accounts. So, I have gone before the Andhra Pradesh information commissioner. Even after repeating request letters, TTD is not answering the questions I have posed," Murty said. The story: According to mythology, Lord Venkateshwara who was believed to be an incarnation of Vishnu, was named as Srinivasa. There was a king called Akasha Raja who was ruling the state that time. Many a time, Srinivasa quarrelled with his divine consort Lakshmi and on one occasion came to Tirupati to do penance in an anthill. He was doing penance all day and no one knew about this. Every day, one cow used to come to that place and give milk to Srinivasa. Once the cow was back home, it stopped giving milk. Confused by this, shepherds who were looking after this cow followed it, and found it looking after Srinivasa who was inside the anthill. They went to hit the cow with a stick but to safeguard the animal, Srinivasa came out and took the blows on his head. While the attackers left the place, a bleeding Srinivasa was rescued by a woman called Okkala Devi who took him to her place and brought him up as her son. He started staying with her and one day he saw Padmavathi, the Princes of the region. Srinivasa fell in love with her which she also reciprocated. Okkala Devi then approached the king Akasha Raja requesting him to allow the two to marry. The king asked Okkala Devi about her status and about money she had to conduct the wedding. It is at this juncture that Srinivasa was forced to go to Kubera, the lord of wealth and riches, for a loan. After processing the loan, Srinivasa got to marry Padmavathi. Mythology says that from that day till date, Srinivasa is repaying Kubera his loan. "Based on this story, the Devastanam still says that Lord Balaji is paying the interest and it is pressuring devotees to give more and more money. Emotional devotees believe all this and part with crores of rupees. I have heard of rich people like the Amabanis, Vijay Mallya and several other politicians donating huge sums to Lord Balaji. Is there an account for all this," Murty questions and says he will fight till he gets answers for his questions. Narasimha Murty is an RTI activist who has been fighting regarding the property and the gold which came out after opening of the doors at Padmanabha Swamy temple in Kerala, as well as the death of an IAS officer who was looking after the temple. Post-this battle, Karnataka Golf Association was also declared a public authority based on his application. Well, the story in the News article has few discrepancies; nevertheless the gist is the same. This must have possibly been a creative petition to let the people think twice before donating at the temple. 3. RTI Query: “Whether Prime Minister Narendra Modi, before he came into politics, worked in any Ramlila Troop? If yes, what role he played?” The PMO replied: “Information sought is not part of record.” 4. RTI Query on of another applicant wanted to know “how many and which type of cylinder” were “used in (the PM’s) kitchen” in October 2014 and May 2015. The applicant also sought “copies of bills of cylinders” and “copies of bills and spices” bought in May 2015. The PMO replied: “The kitchen expense of the Prime Minister is personal in nature and not incurred on government account.” This exchange is just one example of the nature of queries relating to Prime Minister Narendra Modi that have been raised by applicants and responded to by the Prime Minister’s Office (PMO) under the Right To Information (RTI) Act. The below are some of the RTI Queries: Q: Records and documents which show that the Prime Minister of India, Narendra Modi, is the Prime Servant of India and not the Prime Minister. A: “There is no proposal to change the official designation of PM.” Q: Has the Prime Minister read the Indian constitution? Is the Prime Minister supposed to read the Indian constitution? Is the Prime Minister assumed to have read Indian constitution? Has anyone in the PMO till date told the Prime Minister what his duties are towards India? A: “Information sought does not fall under the definition of information.” Q: Who helps the Prime Minister in sending tweets in regional and foreign languages? Names of individual (s) for each regional language. A: “Information sought is not maintained on record.” (Another reply says that the “Prime Minister himself is managing his personal social media accounts.”) Q: Number of sick or casual or health leave availed by the Prime Minister in the last 10 years. A: “No leave has been availed by the present Prime Minister since taking over the office.” (Replying to a related query on whether Prime Minister Modi was on leave during the Bihar election campaign last year, the PMO responded: “Tours on election campaign are not official.”) Q: Percentage of marks Modi secured while graduating in 1977 from Delhi University. A: “Does not form part of records.” Q: Can one get the mobile number of the PM under RTI? A: “The PMO has not given any mobile phone to Prime Minister.” Q: Legal status of announcements made by the Prime Minister. A: “Once the announcement is made, the ministries concerned are entrusted with the responsibility of implementing the announcements and monitoring their implementation.” Q: Does the PMO communicate; send letters, etc., in the official language Hindi? A: “Letters in Hindi received from Union Ministers, Governors, Chief Ministers, etc., are replied to in Hindi… Hindi letters from public are also replied in Hindi.” Q: Roza iftar parties Prime Minister Modi attended in 2014 and 2015. A: “None.” And finally this: Q: Has the Principal Secretary to the PM, Nripendra Misra, ever taken his colleagues in the PMO on a picnic? If yes, who all went, how much money was spent, were family members also invited on such excursion, and what was the food menu? Was the food ordered from an external caterer? Was the venue fixed by general consensus or was it decided solely by Misra? A: “No picnic/excursion was ever organised by Nripendra Misra.” 5. A RTI Application also asked Who officially declared Gandhi as Father of the Nation (since we always read it in our text books) The 10 year old girl had filed an RTI query seeking information on Gandhi Ji’s title of ‘father of nation’ In a written reply, the government said that Mahatma Gandhi cannot be accorded the 'Father of the Nation' title by government as the Constitution does not permit any titles except educational and military ones. While giving reference to the Article 18 (1) of the Constitution, the MHA had said that it does not permit any titles except education and military ones. The MHA had transferred her appeal to the National Archives of India. The Central Information Commissioner Basant Seth then had stated, "There is no order/document on record by which Gandhiji was given the title of "Rastrapita". Ans: No official declaration done till now. 6. Who declared Gandhi Jayanti, Republic day, Independence Day as national holidays? Ans: Such orders were never issued. Bangalore, Aug 14: The reply to an RTI query has come as a shock to all those Indians who believed that Aug 15, Jan 26 and Oct 2 are national holidays. Apparently, these three dates were never notified by the government. It was the persistent efforts of one Aishwarya Parashar that revealed this amazing fact. Earlier this year in April, the 10-year-old had asked the Prime Minister's Office (PMO) for a copy of the particular government order (GO) that specified the national holidays. The PMO passed on her query to the Ministry of Home, which at first claimed that the matter does not pertain to it. The Department of Personnel and Training (DoPT) should provide the answer, the Home Ministry averred. Finally, the latter clarified on May 17 that it could not find any GO that notified Republic Day, Independence Day and Gandhi Jayanti as national holidays. Aishwarya was bemused by the reply because she has been taught in school that Jan 26, Aug 15 and Oct 2 are national holidays. When she filed an appeal to find out the truth, the appellate authority not only confirmed that the Home Ministry's statement was correct but also requested the National Archives to provide the 10-year-old a copy of the GO if any exists. A determined Aishwarya has since shot off letters to the President and the Prime Minister, demanding the GO. Now the onus is on both Pranab Mukherjee and Manmohan Singh to satisfy her curiosity. 7. A RTI Applicate asked what is the Speed of internet at the PMO? Is his internet faster than ours? Brave Right to Information warriors have exposed how fast Modi’s wifi is! The average Indian gets 2Mbps, and Modi gets 34Mbps. (If you think that’s fast, the ‘Startup Village’ in Kochi has 1Gbps connectivity - 30 times as fast as the PM’s office!) The RTI also found that the PMO (Prime Minister’s Office) uses Windows 7/Windows 8, and there's no money spent on running the @PMOIndia Twitter handle. While the RTI was brought in for transparency, some geniuses are turning it into a joke. Sample these RTI petitions. Yes these are real. Ans: 34 Mbps. 8. Did you know that Hockey is not our National game? This was revealed in an RTI filed by a class VII student, Aishwarya Parashar who sought information on a government order pertaining to India’s national game. Quite surprisingly, the Ministry of Youth Affairs and Sports in its response stated that ministry has not declared any sport as its national game. Same as ENERGY, STUPIDITY can be neither created nor be destroyed, but it transforms from one form to another. All these does not ends here only as many have asked: • Can we have the election symbols with the rainbow filter? (On Voting Machines) A political activist asked Election Commission of India why elections symbol used in electronic voting machines are black and white and not colourful. • An RTI doesn't really have an age limit - legally, even a six year old can file one. And 9 year old Pranav filed an RTI that forced the Delhi police to register his stolen bike. He even asked for a Rs. 2500 compensation, and demanded action against the assistant sub-inspector! The police were given a challenge by a 9-year-old boy named Pranav who used an RTI to force the police officers to file an FIR for his lost bicycle. The police had initially refused the to file the FIR for a trivial offense. I have a feeling that this kid is going to grow up and do some great stuff. • Do you know what underpants should you wear before the Prime Minister? It is one of the most absurd queries received by RTI act provoked by a ridiculous reason. A “troubled” citizen filed a petition asking what undergarments can be worn before the Prime Minister. The question was asked directly to the PMO’s Office asking for the exact “specification of undergarments.” Why? Because previously he had been arrested for stripping down to his briefs scribbled with anti-government slogans in a government convention addressed by the PM. I am so impressed by this guy’s guts. • RTI vs. RTI! In 2009, a Pune RTI activist revealed how local politicians were using the RTI to spy on him, and try to stop him before he revealed their illegal activities! • Um, just for research purposes. An RTI applicant literally asked where exam papers for the Aligarh Muslim University were printed, and where they were checked. • Some people can confuse RTI with Shaadi.com A man in his late forties from Kutch Gujarat filed a request under the RTI Act demanding information on the eligible females in the government department for marriage. The request was made to the Tamil Nadu state information commission. In his application, he also stated the fact that an eligible bachelor from any government department would do for him. He just really wanted to get married to a government employee. • Kya Ache Din Aa Gaye Hain? Someone literally asked the Prime Minister's office if "achhe din" are here. We can imagine the response was “Work in progress” • Time is money, but how much money exactly? Time is money, but how much money is it according to Indian scriptures? An RTI asked the Punjab University this question. • Saar, how much is cost of 1 wife @ MRP? The same Punjab University RTI also asked how much a pretty and religious bride would cost, according to the Ramayana and the Mahabharata! • How religious in the governor ? A resident of Hyderabad sought details from Andhra Pradesh governor on how many times does he visit temples in a day and also copy of the dinner menu hosted at his official residence. • How much ‘paan’ do MCD officials really chew ? Blood red stains might be compulsory artwork at every sarkari office, but this Delhi resident had had enough! He filed an application asking how much 'paan' and tobacco an MCD official consumes on average in a day, and even asked about the paan ingredients! • Where'd I go wrong? A wannabe Delhi University (DU) lecturer who didn't get the university job filed an RTI asking DU where his answers weren't as good as other people who applied. • RTI = student discount? A duplicate Delhi University marksheet costs Rs. 500. An RTI costs Rs. 10. Which is why Delhi students thought they'd get a duplicate marksheet for Rs. 10. Nah, it doesn't work like that. • A disgruntled applicant wanted to know if Arvind Kejriwal’s reads the comments on his social media channels. In his application, he asked that when Arvind Kejriwal posts asks “silly and stupid questions” on Facebook and twitter, does he check the comments he receives on such posts. This information being personal in nature, can’t be answered under RTI. Even then, it doesn’t stop people from trying their luck! • A Delhi University student, filed an RTI against the girl he fell in love with. After few months of dating, he found out that she was married! He wanted to know what he can do to complain against her and get her punished for the mental agony she had caused. • This is around the time our country directed a lot of anger towards Fawad Khan. We had questions coming in asking if Fawad Khan was allowed to legally work and stay in India for his movie “Ae dil hai mushkil”. • An emotional applicant had asked whether astrologists and priests are authorized to declare someone a “manglik”. If someone has “mangal dosh” and their spouse dies, is there any reason to believe that the “manglik” person is to be blamed? Quite a few RTI cases demand information from religious bodies. • Private companies do not fall under RTI, which is a problem for many people. We received a query demanding call recording of a TataSky customer support call. Unfortunately, private companies are not required to answer RTI questions. • RTI Registration number : MHOME/R/2016/50729: Applicant : Ajay Kumar Information sought: I am concerned about the readiness of our government in the event of an invasion by Aliens Zombies and Extradimensional beings . 1. What are our chances against them? 2. What means does the ministry of Home affair have at its disposal to defeat them? 3. Can we do it without Will Smith? The government promptly replied that information that is available can be shared under RTI . Since no info about hypothetical situations is available, it cannot be given. This has to be the most polite reply given under the RTI act! • The applicant, a resident of Ahmedabad, had sought information about Mahatma Gandhi, some of the former Presidents of India and other Ministers asking for their correct date and time of birth, their blood group and above all their IQ. • How many bullock cart tracks are in Delhi? How many trees in the capital are green and how many are dead? How many cups of tea are consumed by the police personnel? • Where did the laddoos go ? A UP girl sent the erstwhile President George Bush some laddoos for 'Raksha bandhan'. Either he ate them and forgot about them, or his Secret Service did. Either way, she didn’t get a thank you mail. Our brave girl then approached the National Human Rights Commission to take action! A UP girl asked NHRC on why 'ladoos' sent by her to US President George W. Bush on 'Rakshabandhan' never reached him and requested the commission to take appropriate action. • In January 2010, a 47-year-old man from Kutch, Gujarat, requested the Tamil Nadu state information commission to provide him information on life partner for marriage from any govt department. • How much maggie was wasted during its ban? • Please send sarkari wife! A 47-year-old man asked the Tamil Nadu state information commission to let him know about a suitable life partner working at any government department. • Who made you Bapu? A class VI girl asked if MK Gandhi ever got an actual ‘Father of the Nation’ title. What was even more awesome was that this was in 2012, when the Congress party was in power. The question went to the PMO, the Ministry of Home Affairs (MHA) and then to the National Archives of India– no one had an answer. • Perhaps this is who people on Twitter refer to as ‘chaddi warriors’! An activist protested by stripping naked at a convention where former PM Manmohan Singh was speaking, and then filed an RTI asking the PMO if they needed to approve his brand of underwear! • Someone asked about how much tea is used in Indian Army on daily bases. • Haryana Police: Wives of Haryana Police officers filled a series of RTIs, asking for the information related to the salary of their husbands and what are there duty timings. • RTI revealed how the President Pratibha Patil tried to construct a retirement home out of govt. funds much in excess of her entitlement. It also revealed the hundreds of crores spent on her foreign travel which had little impact on the future of India. • Hindi, not a national language: Court Gujarat High Court has observed that though majority of people in India have accepted Hindi as a national language, there was nothing on record to suggest that any provision has been made or order issued declaring Hindi as a national language of the country. The observation was made by division bench of Chief Justice S.J. Mukhopadhaya and justice A.S. Dave recently while rejecting a Public Interest Litigation (PIL) by one Suresh Kachhadia. Mr. Kachhadia had filed the PIL last year seeking direction to Central and State government to make it mandatory for manufacturers to print details of goods like price, ingredients and date of manufacture in Hindi. The court observed, “Normally, in India, majority of the people have accepted Hindi as a national language and many people speak Hindi and write in Devanagari script but there is nothing on record to suggest that any provision has been made or order issued declaring Hindi as a national language of the country.” “No mandamus can be issued on any manufacturer or others for giving details or particulars of package in Hindi in Devanagari script,” it further said. It was contended by Mr. Kachhadia’s lawyer that Hindi was the national language and was understood by a large number of persons in the country. The Counsel representing central government submitted that specific provision has been made under the Standard of Weight and Measures (Packaged Commodities) Rules of 1977 that particulars of declaration should be in Hindi in Devanagari script or in English. The court said that the Constituent Assembly while discussing the Language Formula noticed the recommendation of the Sub-Committee on Fundamental Rights, which recommended the formula as per which, “Hindustani, written either in Devanagari or the Persian script at the option of the citizen, shall, as the national language, be the first official language of the Union. English shall be the second official language for such period as the Union may, by law, determine.” However, in the constitution, Hindi was declared as an official language and not a national language. The court in its order said Part XVII of the Constitution deals with Official Language. Under Article 343, official language of the Union has been prescribed, which includes Hindi in Devanagari script and English. • Highest number of Indian prisoners are in Saudi Arabia: As many as 6,569 Indian nationals are currently lodged in prisons of 67 foreign countries, including 254 in Pakistan reveals a RTI query. The Arab countries topped the list with Saudi Arabia (1691), Kuwait (1161) and UAE (1012), according to the information provided by the MEA on April 22 to lawyer and RTI activist DB Binu. Italy has 121 Indian prisoners. The list also showed that UK has 426, USA 155, China 157, Bangladesh 62, Afghanistan 28, Bahrain 18 and Nepal 377 Indian prisoners. • IIM reveals admission criteria: Despite an impressive percentile Vaishnavi Kasturi, a visually-impaired student, in 2007 was denied a seat in the Indian Institute of Management in Bangalore, one of the country’s premier management institutes. She then filed an RTI application to request the institution to disclose the admission process. Though Vaishnavi did not get admission in any of the IIMs, her doubts over admission procedure were clarified. In a response to the query, the Chairman said “CAT scores are just one-fifth of the criteria for admissions. Forty per cent weight age is given for class X, XII and bachelor's scores. Work experience is given weight age too but it’s mostly performance in the group discussion and interview that counts which is up to 35 per cent, plus 5 per cent weight age is there if you have done a chartered accountancy course.” • The national anthem of India does not contain the word - "Sindh" - since 1950. Prof. Shrikant Malushte, a retired professor, challenged the word "Sindh" in the national anthem of India on the following grounds: "When Rabrindranath Tagore's poem was adapted by the Constituent Assembly in 1950 as the national anthem, the word 'Sindh' was replaced by 'Sindhu' considering the fact that the region was part of Pakistan partitioned from India. The newly replaced word Sindhu denotes the river that originated in Pakistan but flows through the Indian valleys," said 75-year-old Shreekanth Malushte. However, despite the correction made by the Constituent Assembly, the government continued to prescribe the original poem written by Tagore, leading to a situation where the anthem was sung in two versions[1]. Prof. Shrikant then availed the RTI Act and obtained papers from the Ministry of Home Affarirs which confirmed that the correct version of the national anthem had the word 'Sindhu'[2]. He then moved the Bombay High Court that agreed with his observations and said that 'Sindh' in national anthem is probably a mistake and directed the center to provide its point of view. However, in 2005, the Supreme court had dismissed a similar case by mentioning that the authentic text contained "Sindh". Therefore, eventually the Bombay High court decided that 'Sindh will remain in the national anthem' • You know there's money being flushed down the toilet - or the Ganga, when startups can build empires from bedrooms, and yet a single 'Clean Ganga' meeting costs over 40 lakh Rupees. That was the budget for a single Vigyan Bhawan meeting by the Modi government's high level team to clean the Ganga! This was revealed through by RTI application. They've somehow managed to spend Rs 75,000 on "floral decorations"- and here's the other math: Meetings and accommodation of guests: Rs 26.7 lakh Officials' travel: Rs 8.8 lakh Advertising the event: Rs 5.1 lakh. Other arrangements: Rs 2.3 lakh Actually cleaning the Ganga: JEERO! • If the legal age of a Man to get sexually active is 18 years and the legal age for him to get married is 21... Then what are we actually suggesting he should do these 3 years? • Now if the legal age for a Man to get married is 21 years and the legal age for him to start drinking is 25 years... then how do you suggest he survives the first 4 years of marriage??? • The most awkward RTI demanded copies of all RTIs filed in the country and their replies. 1. https://www.quora.com/What-are-some-of-funny-question-asked-by-RTI-applicant 2. https://www.quora.com/What-are-some-of-the-weirdest-silliest-RTI-requests-made-in-India 3. https://www.quora.com/What-are-some-interesting-RTI-questions-asked 4. http://indianexpress.com/article/india/india-news-india/prime-minister-narendra-modi-right-to-information-act-rti-application-2922517/ 5. https://www.quora.com/What-are-some-of-the-weirdest-silliest-RTI-requests-made-in-India 6. http://www.ndtv.com/offbeat/is-india-prepared-for-a-zombie-apocalypse-rti-asking-this-goes-viral-1464688 7. http://www.outlookindia.com/news/article/bizarre-rti-query-what-is-mahatma-gandhi-iq-level/708015 8. http://www.firstpost.com/living/many-trees-green-many-cups-tea-drink-bizarre-rti-queries-sent-delhi-police-2026359.html 9. http://economictimes.indiatimes.com/slideshows/consumer-legal/6-funniest-rti-applications-filed-in-india/slideshow/39658972.cms 10. http://www.bangaloremirror.com/bangalore/crime/He-seeks-answers-from-the-god-of-big-things/articleshow/45461478.cms 11. http://www.thehindu.com/news/national/Hindi-not-a-national-language-Court/article16839525.ece 12. https://www.oneindia.com/2012/08/14/august-15-not-a-national-holiday-home-ministry-1053692.html 13. https://www.quora.com/What-are-the-greatest-truths-that-RTI-Right-to-Information-Act-India-revealed 14. http://articles.timesofindia.indiatimes.com/2011-09-08/mumbai/30130317_1_national-anthem-sanjeev-bhatnagar-word 15. https://www.indiatimes.com/culture/who-we-are/these-are-the-most-ridiculous-rti-petitions-filed-in-india-228214.html 16. https://www.storypick.com/funny-rti-application/
  4. Critical Analysis of Supreme Court Judgements on the RTI Act, 2005 By Shailesh Gandhi, Former Central Information Commissioner Judgment : Reserve Bank of India Vs. Jaynatilal N. Mistry & Ors. (2016) 3 SCC 525 This is a landmark judgement given by Apex Court on 16 December, 2015 and it must be included since it is the first clear pro-transparency judgement after the advent of the RTI Act. A bench of Justice M.Y. Eqbal and C. Nagappan delivered the most significant judgment on the law and laid down standards of transparency in line with the letter and spirit of the RTI Act. The apex court was hearing a batch of transferred petitions filed by various financial institutions and Banks against eleven decisions2 of the Central Information Commission. Since the issues were similar the eleven cases were transferred from the Bombay and Delhi High Courts to the Supreme Court. Eight had been filed by RBI, two by NABARD and one was filed by ICICI Bank. As per the RTI Act denial of information is permitted only if it falls in the ambit of Section 8 of the Act, or providing the information infringes copyright. A few organizations which are security and intelligence agencies specifically mentioned in the second schedule to the Act are completely exempted, unless the information sought relates to corruption or human rights violations. The Act is complete by itself and to obviate the possibility of any laws circumscribing this fundamental right of citizens, Section 22 states: “The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.” Insertion of a non- obstante clause in Section 22 of the RTI Act was a conscious choice of the Parliament to safeguard the citizens’ fundamental right to information from convoluted interpretations of other laws adopted by public authorities to deny information. The presence of Section 22 of the RTI Act simplifies the process of implementing the right to information both for citizens as well as the PIO; citizens may seek to enforce their fundamental right to information by simply invoking the provisions of the RTI Act. To understand this, two scenarios may be envisaged: 1. The existence of an earlier law/ rule whose provisions pertain to furnishing of information and is consistent with the RTI Act: Since there is no inconsistency between the law/ rule and the provisions of the RTI Act, the citizen is at liberty to choose whether she will seek information in accordance with the said law/ rule or under the RTI Act. If the PIO has received a request for information under the RTI Act, the information shall be provided to the citizen as per the provisions of the RTI Act and any denial of the same must be in accordance with Sections 8 and 9 of the RTI Act only; and 2. An earlier law/ rule whose provisions pertain to furnishing of information but is inconsistent with the RTI Act: Where there is inconsistency between the law/rule and the RTI Act in terms of access to information, then Section 22 of the RTI Act lays down that it shall override the said law/ rule and the PIO would be required to furnish the information as per the RTI Act only. The Supreme Court has reinforced the correct position of the law. Section 8 of the RTI Act, which details information which can be denied states: 8. (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,- (a) 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; (b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court; (c) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature; information including commercial confidence, trade (d) secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; (e) 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; (f) information received in confidence from foreign government; information, (g) of which would the disclosure endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes; (h) information which would impede the process of investigation or apprehension or prosecution of offenders; (i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; (i) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. (2) Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with subsection (1), a public authority may allow access to information, if public interests in disclosure outweigh the harm to the protected interests. (3) Subject to the provisions of clauses (a), (c) and (i) of subsection (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under section 6 shall be provided to any person making a request under that section: Provided that where any question arises as to the date from which the said period of twenty years has to be computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this Act. The main points of information which were being denied in the matters before the court were: 1. Investigations and audit reports of banks by RBI 2. Warning or Advisory issued to Bank. 3. Minutes of meetings of governing board and directors 4. Details of Top defaulters. 5. Grading of banks In the instant case one of the grounds for denial was that information could not be disclosed as per the Banking Regulations Act. The other grounds on which refusal of information was justified was on the basis of Section 8(1) and the fact that the impugned judgments issued by a single member bench of the commission had disagreed with an earlier full bench decision taken by a four member bench. The single member bench had held the earlier decision per incuriam. It was argued by RBI that the single member bench was bound to follow the earlier decision of the full bench. RBI had claimed exemption under Section 8(1)(a), (d) and (e) of the RTI Act and also argued that there was no larger public interest in disclosure and hence did not fulfil the requirement of Section 8(2). It had claimed that the economic interests of the state would be adversely affected by disclosure. It was also stated that the commercial interests of the banks would be affected. The most insistent claim for exemption was that the information was held by RBI and NABARD in a fiduciary relationship. The Apex court did not accept any of these grounds. It held in para 43: “The submission of the RBI that exceptions be carved out of the RTI Act regime in order to accommodate provisions of RBI Act and Banking Regulation Act is clearly misconceived. RTI Act, 2005 contains a clear provision (Section 22) by virtue of which it overrides all other Acts including Official Secrets Act. Thus, notwithstanding anything to the contrary contained in any other law like RBI Act or Banking Regulation Act, the RTI Act, 2005 shall prevail insofar as transparency and access to information is concerned.” There have been many instances of PIOs,- including those of High Courts,- insisting that they will give information only on the basis of their regulations or earlier laws. This has now been settled the Supreme Court. The Supreme Court has recorded the contention of RBI that the single member bench could not have given a ruling contrary to that of a four member full bench of the commission. It has however upheld the decision of the single member bench since the commissioner had given logical reasons to show how the full bench decision was per incuriam. This opens the way for information commissioners to interpret the law as per its letter and intent, instead of being tied down by earlier decisions given in ignorance of the law, provided a proper reasoning is given. On RBIs contention that disclosure would harm the nation’s economic interest the court upheld the commission’s ruling and echoed in para 61: “The baseless and unsubstantiated argument of the RBI that the disclosure would hurt the economic interest of the country is totally misconceived. In the impugned order, the CIC has given several reasons to state why the disclosure of the information sought by the respondents would hugely serve public interest, and non-disclosure would be significantly detrimental to public interest and not in the economic interest of India. RBI’s argument that if people, who are sovereign, are made aware of the irregularities being committed by the banks then the country’s economic security would be endangered, is not only absurd but is equally misconceived and baseless.” A claim is often made that information given to regulators and statutory authorities in discharge of statutory obligations is held in a fiduciary relationship and hence is exempt as per Section 8 (1)(e) of the Act. The information commission had rejected this claim on the ground that information provided in discharge of statutory requirements cannot be considered as being held in a fiduciary relationship. The Supreme Court has reinforced this by stating in paragraph 62: “where information is required by mandate of law to be provided to an authority, it cannot be said that such information is being provided in a fiduciary relationship. As in the instant case, the financial institutions have an obligation to provide all the information to the RBI and such information shared under an obligation/ duty cannot be considered to come under the purview of being shared in fiduciary relationship.” The Court has taken note of the obstructionist and secrecy wedded PIOs response to RTI applications. It has expressed its strong disapproval of denying the citizen’s fundamental right in paragraph 64: “it had long since come to our attention that the Public Information Officers (PIO) under the guise of one of the exceptions given under Section 8 of RTI Act, have evaded the general public from getting their hands on the rightful information that they are entitled to”. This should serve as a warning and wake up call to all PIOs, First appellate authorities and information commissioners. If information commissioners penalize PIOs who are using every innovative pretext to deny information, it would reduce the unhealthy practices being adopted to deny information. This is a landmark judgment and all those responsible for implementing the RTI Act must imbibe the letter and spirit of this. A very heartening impact of this judgment was seen within a fortnight when Mr. Raghuram Rajan the then RBI Governor in his New Year message to bank officers for the year 2016 said: “It has often been said that India is a weak state. Not only are we accused of not having the administrative capacity of ferreting out wrong doing, we do not punish the wrong-doer – unless he is small and weak. This belief feeds on itself. No one wants to go after the rich and well-connected wrongdoer, which means they get away with even more. If we are to have strong sustainable growth, this culture of impunity should stop. Importantly, this does not mean being against riches or business, as some would like to portray, but being against wrong-doing. …... there is a sense that we do not enforce compliance. Are we allowing regulated entities to get away year after year with poor practices even though these are noted during inspections/scrutinies? Should we become more intolerant of sloppy practices at regulated entities, so that these do not result in massive scams years later? Should we haul up accountants who do not flag issues they should detect? My sense is that we need a continuing conversation about tightening both detection as well as penalties for non-compliance throughout the hierarchy….. Finally, we are embedded in a changing community. What was OK in the past is no longer all right when the public demands transparency and better governance from public organisations. …. Transparency and good governance are ways to protect ourselves from roving enquiries – everyone should recognise that an effective regulator has enemies, and like Caesar’s wife, should be above all suspicion.” However within three months RBI started playing a different tune and again refusing information which latter RTI applications sought on the same matter. The Supreme Court has given a clear unambiguous judgment on the RTI Act specifically with respect to Section 8 (1) (a), (e) and section 22 of the Act. It has castigated those who deny information by using Section 8 (1) without justification. The then Governor of RBI has also responded positively and the writer has confirmation that information has been provided as per the CIC orders. We should build on this to bring transparent and accountable governance for our nation. RBI is no longer willing to abide by the judgment and a contempt petition has been filed against it. It is unfortunate that RBI is taking an arrogant position on transparency and has now come up with a Non-Disclosure policy which they are labeling as a ‘Disclosure Policy’. About the Authors: Shailesh Gandhi is a first generation entrepreneur and a Distinguished Alumnus awardee of IIT Bombay. He sold his company to become an RTI activist. Shailesh was part of the National RTI movement which was involved in drafting the National RTI Act. He was convener of the National Campaign for People’s Right To Information. He used RTI and also trained many citizens and government officials in over 1000 workshops to use it. He is perhaps the only RTI activist to have been chosen as a Central Information Commissioner. He disposed a record of over 20,000 cases in his tenure of 3 years and 9 months, and ensured that most cases were decided in less than 90 days. He gave many landmark decisions on RTI, apart from organizing the first digital paperless office in the Commission. He is now at his home in Mumbai to further and deepen RTI to empower citizens to take effective participatory charge of their democracy. He is also passionately pursuing the cause of evolving ways for a time bound justice delivery system, and improving governance systems. Amongst many awards, he has been awarded the Nani Palkhiwala Civil Liberties award, and the MR Pai award. Sandeep Jalan is an Advocate, practicing in Bombay High Court and also in Subordinate Courts and Tribunals. He writes extensively on various legal issues. He has developed a website / Legal Referencer vakeelkanumber.com wherein the pressing issues of our society have been identified, with all probable legal remedies which may be pursued, are suggested therein, and followed by articulate legal drafts and procedure. He also write Blogs. http://commonlaw-sandeep.blogspot.in/ http://thepracticeoflawjalan.blogspot.in/ http://judgmentshighcourtsapexcourt.blogspot.in/ http://legaldraftsjalan.blogspot.in/ http://www.rti.india.gov.in/cic_decisions/CIC_SM_A_2011_001487_SG_15434_M_69675.pdf satyamevajayate.info/wp-content/uploads/2017/08/Analysis-of-Supreme-Court-judgments-on-RTI.pdf
  5. Critical Analysis of Supreme Court Judgements on the RTI Act, 2005 By Shailesh Gandhi, Former Central Information Commissioner Judgment No: - Kerala Public Service Commission Versus State Information Commission AIR 2016 SC 711 Issue before the Court: In this case the question which arose was whether respondents are entitled to the scanned copies of their answer sheet, tabulation-sheet containing interview marks; and if they are entitled to know the names of the examiners who have evaluated the answer sheet. Observation of Kerala High Court justifying the disclosure of identity of examiners Para 7: 17. We shall now examine the next contention of PSC that there is a fiduciary relationship between it and the examiners and as a consequence, it is eligible to claim protection from disclosure, except with the sanction of the competent authority, as regards the identity of the examiners as also the materials that were subjected to the examination. We have already approved TREESA and the different precedents and commentaries relied on therein as regards the concept of fiduciary relationship. We are in full agreement with the law laid by the Division Bench of this Court in Centre of Earth Science Studies (supra), that S.8 (1)(e) deals with information available with the person in his fiduciary relationship with another; that information under this head is nothing but information in trust, which, but for the relationship would not have been conveyed or known to the person concerned. What is it that the PSC holds in trust for the examiners? Nothing. At the best, it could be pointed out that the identity of the examiners has to be insulated from public gaze, having regard to issues relatable to vulnerability and exposure to corruption if the identities of the examiners are disclosed in advance. But, at any rate, such issues would go to oblivion after the conclusion of the evaluation of the answer scripts and the publication of the results. Therefore, it would not be in public interest to hold that there could be a continued secrecy even as regards the identity of the examiners. Access to such information, including as to the identity of the examiners, after the examination and evaluation process are over, cannot be shied off under any law or avowed principle of privacy. Important observations of the Apex Court In so far as disclosure as to information about the information of answer sheets and details of the interview marks, the observations of the Apex Court are as under Para 6: So far as the information sought for by the respondents with regard to the supply of scanned copies of his answer-sheet of the written test, copy of the tabulation sheet and other information, we are of the opinion that the view taken in the impugned judgment with regard to the disclosure of these information, do not suffer from error of law and the same is fully justified. In so far as disclosure of names of examiners are concerned the observations of the Apex Court are as under Para 7: The view taken by the Kerala High Court holding that no fiduciary relationship exists between the University and the Commission and the examiners appointed by them cannot be sustained in law. Para 8: We do not find any substance in the reasoning given by the Kerala High Court on the question of disclosure of names of the examiners. Para 9: In the present case, the PSC has taken upon itself in appointing the examiners to evaluate the answer papers and as such, the PSC and examiners stand in a principal-agent relationship. Here the PSC in the shoes of a Principal has entrusted the task of evaluating the answer papers to the Examiners. Consequently, Examiners in the position of agents are bound to evaluate the answer papers as per the instructions given by the PSC. As a result, a fiduciary relationship is established between the PSC and the Examiners. Therefore, any information shared between them is not liable to be disclosed. Furthermore, the information seeker has no role to play in this and we don t see any logical reason as to how this will benefit him or the public at large. We would like to point out that the disclosure of the identity of Examiners is in the least interest of the general public and also any attempt to reveal the examiner s identity will give rise to dire consequences. Therefore, in our considered opinion revealing examiner’s identity will only lead to confusion and public unrest. Hence, we are not inclined to agree with the decision of the Kerala High Court with respect to the second question. Shailesh Gandhi’s observation: The Supreme Court differed with the finding of the Kerala High Court and the commission that there was no fiduciary relationship between the examining body and the examiners. In the CBSE judgment the apex court had given a finding that the examining body was not in a fiduciary relation either with the examiners or examinees. Yet in this case it faulted that finding of the High Court on this issue. It brought in a new element, contending “Furthermore, the information seeker has no role to play in this and we don t see any logical reason as to how this will benefit him or the public at large. We would like to point out that the disclosure of the identity of Examiners is in the least interest of the general public and also any attempt to reveal the examiner’ s identity will give rise to dire consequences. Therefore, in our considered opinion revealing examiner’s identity will only lead to confusion and public unrest.” It appears that the apex court made its decisions guided by the thought that ‘the information seeker has no role to play in this’ and ‘revealing the examiner’s identity will only lead to confusion and public interest’. Specious grounds not justified by the law. There is some indication that the court felt that the examiner’s safety which could then have claimed exemption under Section 8 (1) (g). There is no evidence in the judgment that this was urged before the commission or the High Court. The particular section does not find any mention even in the judgment. Also the probability of assaulting the examiners by examinees after obtaining their names using RTI is remote. It is also worth noting that the addresses of the examiners were not sought. I must also mention that the probable danger to the examiners is also too far fetched and the overall wording indicates a strong conviction that information must not be given. Sandeep Jalan’s Observation: In view of the law settled by the Apex Court in the case of CBSE versus Aditya Bandopadhyay, the information as to copy of Answer sheets should have been provided instantly, and the issue should not have travelled to Apex Court again. This is how the PIOs and the Public Authorities play mischief by misreading or by brazenly ignoring the law laid down by the Apex Court. In so far disclosure of names of Examiners is concerned, the said information was denied by Apex Court on the premise of existence of fiduciary relationship and personal safety of Examiners. For the sake of clarity, let us revisit the two Apex Court rulings which dealt with the issue of fiduciary relationships, and what the Apex Court laid down as constituting the fiduciary relationship. The issue of existence of fiduciary relationship came up before Apex Court in the case of Central Board Of Secondary Education (CBSE) Versus Aditya Bandopadhyay. In this case, the information sought was the copy of Answer sheets by the student himself who appeared in the examination conducted by CBSE. CBSE refused information on the premise that it is holding information in a fiduciary capacity and stands exempted u/s 8(1)(e) of the RTI Act. For better understanding of the issue at hand, the three entities are first be properly defined. The Examining Body is the CBSE which conducts the Examination. The Examinee is the student who takes up the examination. The Examiner is the person to whom the Examining Body entrusts the work of evaluating the Answer sheets of the Examinee student. In the aforesaid case of CBSE, the Apex Court in Para 26 said in essence said that Examining Body and the Examinee do not share any fiduciary relationship between themselves; and assuming that they share such relationship, the information cannot be denied to the examinee who is in fact the beneficiary under such purported fiduciary relationship; and in such supposition, the information can only be denied to third party and not to the beneficiary. In so far existence of fiduciary relationship between the Examining Body and the Examiner is concerned, the Apex Court also discarded the existence of any such fiduciary relationship between them; and further said that such fiduciary relationship is temporary for the period when the Examiner holds the custody of the Answer-sheets for the purpose of evaluation; and the moment the evaluation is over and Answer-sheets are returned to the Examining Body, such relationship ceased to exist. In CBSE judgment, in so far as disclosure of names of Examiners is concerned, the Apex Court said that their names cannot be disclosed to the Examinee, on the premise that such disclosure may endanger the personal safety of the Examiner. In Para 28, the Court said: When an examining body engages the services of an examiner to evaluate the answer-books, the examining body expects the examiner not to disclose the information regarding evaluation to anyone other than the examining body. Similarly the examiner also expects that his name and particulars would not be disclosed to the candidates whose answerbooks are evaluated by him. In the event of such information being made known, a disgruntled examinee who is not satisfied with the evaluation of the answer books, may act to the prejudice of the examiner by attempting to endanger his physical safety. Further, any apprehension on the part of the examiner that there may be danger to his physical safety, if his identity becomes known to the examinees, may come in the way of effective discharge of his duties. The above applies not only to the examiner, but also to the scrutiniser, co-ordinator, and headexaminer who deal with the answer book. Therefore, the disclosure of names of Examiners were refused u/s 8(1)(g) of the RTI Act. Section 8(1)(g). Exemption from disclosure of information -- (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,- (g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes; The issue whether there exist fiduciary relationship again came up in RBI case (Judgment No.16 hereinabove), wherein in Para 62, the Apex Court in the most unambiguous terms said that However, where information is required by mandate of law to be provided to an authority, it cannot be said that such information is being provided in a fiduciary relationship. The essence of these aforesaid two judgments is that – Examining Body and the Examiner do not share fiduciary relationship between them; and even if such fiduciary relationship exist, it is temporary for the period when the Examiner holds the custody of the Answer-sheets for the purpose of evaluation; and the moment the evaluation is over and Answer-sheets are returned to the Examining Body, such relationship ceased to exist; and where information is required by mandate of law to be provided to an authority, it cannot be said that such information is being provided in a fiduciary relationship. In the present case, the stand of the Apex Court that there exists a fiduciary relationship between PSC (Examining Body) and the Examiners, is patently inconsistent with the law laid down by Apex Court in CBSE and RBI case. However in so far disclosure of names of Examiners is concerned, the Apex Court refused the same, on the premise that “the information seeker has no role to play in this and we don t see any logical reason as to how this will benefit him or the public at large. We would like to point out that the disclosure of the identity of Examiners is in the least interest of the general public and also any attempt to reveal the examiner s identity will give rise to dire consequences. Therefore, in our considered opinion revealing examiner’s identity will only lead to confusion and public unrest”. The shortcoming in the immediate aforesaid observation is that said grounds of refusal was not supported by mandate of law, whereas the mandate of law is that if there is any exemption from disclosure of information, it has to strictly fall within any of the clauses of section 8 of the RTI Act, and no other information should be withhold. Nevertheless, it escaped the minds of the Apex Court that Section 8(1)(g) could have been invoked to deny said information (names of Examiners). In the case of CBSE, the Apex Court although said that there is no fiduciary relationship between the Examining Body and the Examiners, the Court refused disclosure of names of Examiners u/s 8(1)(g), i.e. personal safety of Examiners. In the same breath, it may be stated that the reasoning given by the Kerala High Court for the disclosure of information, is rational, and quite sustainable in law. I am sure Section 8(2) can aid in resolving this conflict. Section 8(2) of the RTI Act provides that the concerned Public Authority may disclose information inspite of applicability of any of the exemptions enumerated in clauses of Section 8(1), if the concerned Public Authority, whilst balancing the conflicting interests, holds that there is larger public interest in disclosure of information. About the Authors: Shailesh Gandhi is a first generation entrepreneur and a Distinguished Alumnus awardee of IIT Bombay. He sold his company to become an RTI activist. Shailesh was part of the National RTI movement which was involved in drafting the National RTI Act. He was convener of the National Campaign for People’s Right To Information. He used RTI and also trained many citizens and government officials in over 1000 workshops to use it. He is perhaps the only RTI activist to have been chosen as a Central Information Commissioner. He disposed a record of over 20,000 cases in his tenure of 3 years and 9 months, and ensured that most cases were decided in less than 90 days. He gave many landmark decisions on RTI, apart from organizing the first digital paperless office in the Commission. He is now at his home in Mumbai to further and deepen RTI to empower citizens to take effective participatory charge of their democracy. He is also passionately pursuing the cause of evolving ways for a time bound justice delivery system, and improving governance systems. Amongst many awards, he has been awarded the Nani Palkhiwala Civil Liberties award, and the MR Pai award. Sandeep Jalan is an Advocate, practicing in Bombay High Court and also in Subordinate Courts and Tribunals. He writes extensively on various legal issues. He has developed a website / Legal Referencer vakeelkanumber.com wherein the pressing issues of our society have been identified, with all probable legal remedies which may be pursued, are suggested therein, and followed by articulate legal drafts and procedure. He also write Blogs. http://commonlaw-sandeep.blogspot.in/ http://thepracticeoflawjalan.blogspot.in/ http://judgmentshighcourtsapexcourt.blogspot.in/ http://legaldraftsjalan.blogspot.in/ Source: - satyamevajayate.info/wp-content/uploads/2017/08/Analysis-of-Supreme-Court-judgments-on-RTI.pdf
  6. Critical Analysis of Supreme Court Judgements on the RTI Act, 2005 By Shailesh Gandhi, Former Central Information Commissioner Judgment : Union Public Service Commission Vs. Gourhari Kamila (2014) 13 SCC 653 Issue before the Court: The applicant had sought the following information for an Interview conducted by UPSC which had been denied: a) How many years of experience in the relevant field (Analytical methods and research in the field of Ballistics) mentioned in the advertisement have been considered for the short listing of the candidates for the interview held for the date on 16.3.2010? b)Kindly provide the certified xerox copies of experience certificates of all the candidates called for the interview on 16.3.2010 who have claimed the experience in the relevant field as per records available in the UPSC and as mentioned by the candidates at Sl.No.10(B) of Part-I of their application who are called for the interview held on 16.3.2010. The CIC decided in favour of disclosure and asked UPSC to disclose the information. UPSC challenged this order and the single judge and the division bench of the High Court dismissed UPSC’s petition. The Apex Court quoted the earlier order of CBSE (Judgement 1) as follows: “We do not find that kind of fiduciary relationship between the examining body and the examinee, with reference to the evaluated answer books, that come into the custody of the examining body.” And again at para 27: “We, therefore, hold that an examining body does not hold the evaluated answer-books in a fiduciary relationship. Nor being information available to an examining body in its fiduciary relationship, the exemption under section 8(1)(e) is not available to the examining bodies with reference to evaluated answer-books.” The Court held that: “By applying the ratio of the aforesaid judgment, (CBSE case) we hold that the CIC committed a serious illegality by directing the Commission to disclose the information sought by the respondent at point Nos. 4 and 5 and the High Court committed an error by approving his order.” Our analysis of the judgment: In para 23 in the CBSE judgement the Supreme Court had held: “It cannot therefore be said that the examining body is in a fiduciary relationship either with reference to the examinee who participates in the examination and whose answer-books are evaluated by the examining body.” In the CBSE judgement the Supreme Court had clearly come to the conclusion that it cannot be said that the examining body is in a fiduciary relationship with the examinee. After this the Court had made an assumption to examine that even if it were held in a fiduciary relationship it should still be disclosed. It said: “24. We may next consider whether an examining body would be entitled to claim exemption under section 8(1)(e) of the RTI Act, even assuming that it is in a fiduciary relationship with the examinee.” In this case a clear finding that there was no fiduciary relationship has been turned upside down to give it a contrary meaning. It is not clear why the court made such an assumption in the CBSE case. But in this UPSC case the assumption made in the earlier case by the court has been taken as a ratio and the actual finding junked! satyamevajayate.info/wp-content/uploads/2017/08/Analysis-of-Supreme-Court-judgments-on-RTI.pdf
  7. Critical Analysis of Supreme Court Judgements on the RTI Act, 2005 By Shailesh Gandhi, Former Central Information Commissioner Judgment : Karnataka Information Commissioner Vs. PIO (HC) - Unreported Judgment About the case: A RTI applicant requested the Karnataka High Court for certified copies of some information/documents regarding guidelines and rules pertaining to scrutiny and classification of writ petitions and the procedure followed by the Karnataka High Court in respect of Writ Petition Nos.26657 of 2004 and 17935 of 2006. The PIO refused the information on the grounds that the applicant should seek the information under the Karnataka High Court rules. When the matter went to the State Information Commission it disagreed with the PIO and ordered the information to be provided under the RTI Act. The Commission’s order was challenged by the PIO in the Karnataka High Court which named the applicant as a respondent in the case and the Karnataka High Court set aside the Commission’s order. The Commission challenged this order before the Supreme Court and the petition was filed by an Information Commissioner. The Court took offense to the petition being filed by an Information Commissioner and said that the Commission and Commissioner have no locus standi and were wasting public money by challenging the order. In a harsh snub it imposed a cost of Rs. 100000 on the Commission. Our analysis of the judgement: It is worth mentioning that the Supreme Court itself had accepted the Chief Information Commissioner (Manipur) in judgement 2 hereinbefore as the Petitioner. Many High Courts name the Commission as party in many petitions which challenge the decision of an Information Commission. Hence the Supreme Court taking umbrage at the commission approaching it as a petitioner does not appear to be correct. More importantly, the important matter of Section 22 which gives an overriding effect to the RTI Act, was not addressed at all, and was brushed aside. This harsh snub by the Supreme Court has silenced the Information Commissions into not questioning the Courts, but becoming intellectually subservient to them. If the apex court snubs statutory authorities in such a manner it harms the rule of law, since such authorities suffer loss of respect which they require to enforce the law. Section 22 states that “the provisions of this RTI Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than the RTI Act”. In other words, where there is any inconsistency in a law as regards furnishing of information, such law shall be superseded by the RTI Act. Insertion of a non-obstante clause in Section 22 of the RTI Act was to safeguard the citizens’ fundamental right to information from convoluted interpretations of other laws and rules adopted by public authorities to deny information. This section simplifies the process of implementing the right to information both for citizens as well as the PIO. Citizens may seek to enforce their fundamental right to information by invoking the provisions of the RTI Act if they desire to. By its order in the case of the Karnataka Commission, the Supreme Court, without addressing the provision of Section 22, sanctified and legitimized denial of information under Right to Information, if any public authority claims there are any other rules for giving information. This ruling has neutralised Section 22 of the RTI Act without any proper reasoning or discussion. Besides it appears to be contrary to the Supreme Court’s pronouncement at para 18 in the CBSE Vs. Aditya Bandopadhyay case quoted above where it had held, ““Section 22 of RTI Act provides that the provisions of the said Act will have effect, notwithstanding anything inconsistent therewith contained in any other law for the time in force. Therefore the provisions of the RTI Act will prevail over the provisions of the byelaws/rules of the examining bodies in regard to examinations.” Surely the rules of the Court cannot be treated differently. satyamevajayate.info/wp-content/uploads/2017/08/Analysis-of-Supreme-Court-judgments-on-RTI.pdf
  8. Critical Analysis of Supreme Court Judgements on the RTI Act, 2005 By Shailesh Gandhi, Former Central Information Commissioner Judgment : R.K. Jain Vs. Union of India JT 2013 (10) SC 430 The issue before the Court: The information requested was inspection of adverse confidential remarks against ‘integrity’ of a member of Tribunal and follow up actions taken on issue of integrity. Exemption was claimed on the basis of Section 8 (1) (j). The Court held that: Inter alia relying upon the ruling made in Girish Ramchandra Deshpande case, the information is exempted from disclosure under Section 8 (1) (j). read with section 11 of the RTI Act. Para 13”…. Under Section 11(1), if the information relates to or has been supplied by a third party and has been treated as confidential by the third party, and if the Central Public Information Officer or a State Public Information Officer intends to disclose any such information or record on a request made under the Act, in such case after written notice to the third party of the request, the Officer may disclose the information, if the third party agrees to such request or if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party.” Our analysis of the judgment: Section 11 (1) is quoted hereunder: SECTION 11: Third-party information: (1) “Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information: Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party.” (emphasis supplied by us) The Supreme Court appears to have given an interpretation to Section 11 which does not appear to be justified by the words of the Act. Section 11 is not an exemption but only a procedural provision to safeguard the interests of the third party. The Court’s statement above implies that if third party objects to the disclosure of information, it can only be given if there is a larger public interest in disclosure. It may clearly be understood that denial of information in RTI Act can only be done under Section 8 or 9 as clearly mentioned in Section 7 (1). In Section 8 (1) the need to show a larger public interest arises only when an exemption under Section 8 (1) applies. The Act states that when a PIO ‘intends to disclose’ information regarding third party which third party has treated as confidential, he shall intimate the third party that he intends to disclose the information. The PIO can only decide to disclose the information if he comes to the conclusion that it is not exempt. The law states that ‘submission of the third party shall be kept in view while taking a decision about disclosure of information’. The PIO can only deny information as per the provisions of the exemptions of Section 8 (1) or 9. The RTI Act does not give veto power to the third party, but provides it with an opportunity to raise his legitimate objections, and if the PIO is convinced that the information is exempt, he may change his earlier decision to disclose by denying the information as per the provision of Section 8 (1) or Section 9. In case the PIO does not agree that the information is exempt, he should decide to disclose the information and reject the third party’s objection. In such an event the concerned third party may prefer an Appeal against the decision of the PIO, as per the provisions of Section 11 (2) to 11 (4). These express provisions 11(2) to 11(4) make it clear that the third party is not rendered remediless, in cases where PIO disagrees with the third party’s objection in disclosure of information. Section 7 (1) of the RTI Act clearly states that denial of information can only be based on Section 8 or 9. Section 3 states that ‘Subject to the provisions of this Act, all citizens shall have the Right to Information.’ Thus the denial of any information can only be on the basis of the RTI Act where only Section 8 and 9 detail the information which can be denied. The Court has raised the procedure of Section 11 to that of an exemption of Section 8 (1). This judgement is an erroneous reading of Section 11. Information was denied, partly depending on Girish Deshpande judgement where there was no ratio decidendi, and a flawed interpretation of Section 11. It also does not address the earlier R. Rajagopal judgment. satyamevajayate.info/wp-content/uploads/2017/08/Analysis-of-Supreme-Court-judgments-on-RTI.pdf
  9. Critical Analysis of Supreme Court Judgements on the RTI Act, 2005 By Shailesh Gandhi, Former Central Information Commissioner Judgment : Bihar Public Service Commission Vs. Saiyad Hussain Abbas Rizvi JT 2012 (12) SC 552 The main issue before the Court: The applicant had asked for names and addresses of interviewers in an interview board selecting candidates for Bihar government jobs. The Court held that: the Commission is not bound to disclose the information asked for by the applicant under Query No.1 of the application. Our analysis of the judgment: The applicant had in 2008 sought the names and addresses of persons who had conducted interviews for Bihar Public Service Commission (BPSC) in 2002. This was denied claiming exemption on grounds of Section 8 (1) (j). The State Commission had upheld the denial and the matter was finally contested in the Division Bench of the High Court. The Division Bench upheld the contention of the applicant and ordered the names of the interviewers to be provided. Commonwealth Human Rights Initiative (CHRI) has done a very detailed and well-argued analysis4 of this matter from which some parts are being reproduced below: “2.1 The Special Leave Petition (SLP) was admitted in March, 2012 and a two‐judge bench of the Supreme Court (the Court) comprising of Justice A K Patnaik and Justice Swatanter Kumar decided the matter within nine months. The Court allowed the appeal and set aside the judgement of the Division Bench. Writing the judgement for the Court, Justice Swatanter Kumar held that BPSC was not bound to disclose any information beyond what was provided already. A summary of the Court’s reasoning is provided below: (i) BPSC had relied heavily on Section 8 (1) (j) of the RTI Act while rejecting the request for names and addresses and also during the proceedings before the Bihar State Information Commission and the Patna High Court. 1Though BPSC claimed the protection of Section 8 (1) (j) in its petition, it did not press this point during the hearings before the Court. Therefore the Court did not go into the correctness of the Division Bench’s judgement about this line of reasoning. (ii) BPSC changed track and claimed that the names and addresses of the subject experts could not be disclosed as it was entitled to the protection of both Section 8 (1) (e) and Section 8 (1) (g) of the RTI Act. The Court rejected the claim to Section 8 (1) (e) in light of the principles governing a fiduciary relationship recognised by the Court in an earlier RTI‐related matter. The Court ruled that there was no fiduciary relationship between BPSC and the interviewers (subject experts) or the candidates interviewed. (iii) The Court upheld BPSC’s claim of Section 8 (1) (g) of the RTI Act by linking it to Article 21 of the Constitution which guarantees protection for life and liberty of a person. It reasoned that the members of the Board are likely to be exposed to danger to their lives or physical safety if their names and addresses are disclosed. “The disclosure of names and addresses of the members of the interview Board would ex facie endanger their lives or physical safety. The possibility of a failed candidate attempting to take revenge from such persons cannot be ruled out,” the Court held. (iv) The Court gave two more reasons for rejecting the request for names and addresses. First, it held that the disclosure of names and addresses of examiners would hamper effective performance and the discharge of their duties. Second, it held that disclosure would serve no fruitful much less any public purpose. The Division Bench of the High Court had earlier rejected the contention of the PIO about applicability of Section 8 (1) (g) by stating: “13. … In the present case, the names of the interviewers cannot be denied for various reasons. The interviewers are visible to the candidates while the interview is being held. They have public egress and ingress to the venue of the interview… 14. To make a comparison with the court/judicial proceedings, vis‐à‐vis an interview; Court proceeding is open and the names of the Judges who are hearing the matter are ‐known to all the parties. When court proceedings can be held in broad daylight and the names of the judges are known to all the parties, why not the names of interviewers be disclosed to the applicant.” As nothing in the BPSC judgement indicates that the Court weighed and measured this line of reasoning of the Division Bench, before dismissing it, in our humble opinion, it is difficult to accept the rationale for rejection. (iii) Third, the Division Bench clearly pointed out that denying information about interviewers could defeat the very purpose of the Act in the following manner: “13. …It is a possible situation that the applicant may have reasons for suspicion that a particular interviewer was on the interview board and his close relation was appearing. Such determination cannot be made unless the names of the interviewer and the candidate who appeared are disclosed. If he denies this information, it would be defeating the aims and objects, the preamble, and the legislative intent of the Act. We cannot countenance such an obstruction to such a laudable Act which is intended to bring about transparency in governance, and root out corruption, in this country. The Judgment of the Supreme Court in the case of A.K. Kraipak and others vs.Union of India and others (A.I.R. 1970 S.C. 150) is an appropriate example to show that one of the members of the Board was himself a candidate for promotion from the State cadre to the Central cadre of Indian Forest Service. If we prohibit the information which the applicant is seeking to obtain, the misdeed as had taken place in A.K. Kraipak vs. Union of India (supra), may not be set at naught.” The Division Bench was clearly referring to potential conflicts of interests that may be identified if the names of the interviewers were disclosed. If not, they would remain hidden under a cloak of secrecy. It is respectfully submitted that instead of weighing and measuring this line of reasoning which is based on a very real case adjudicated by the Court earlier (amounting to material facts justifying the disclosure of names), the Court has rejected it by holding that preventing bias in the selection process cannot be a ground for denying BPSC the protection of Section 8 (1) (g). In our humble opinion the Court has not adequately appreciated the reasoning of the Division Bench which by ordering disclosure sought to uphold the very public interests mentioned in the Preamble of the RTI Act, viz., ‘bringing about transparency in governance’ and ‘containing corruption’. (iv) Fourth, nowhere in its judgement does the Court recognise that the Division Bench had refused to order disclosure of the addresses of the interviewers.” It sounds highly improbable that a candidate, who was not selected in an interview in 2002, would seek the names of the interviewers in 2008 and pursue the matter in the Supreme Court with the intention of physically harming the interviewers. Imagination is being stretched too far if it is assumed that the unsuccessful candidate would harm the interviewers after 6 years. The Division Bench of the High Court had come to a very reasonable conclusion that most probably the attempt was to expose nepotism in the selection process. The Supreme Court ruling has led to a situation where the denial of information under Section 8 (1) (g) has been done by thinking of a remote highly unlikely probability to deny information. A PIO has to merely imagine the probability of some likely harm to deny information. A mere apprehension that some interest may be affected has been dubbed to be adequate to deny information. This decision makes it difficult for citizens to expose corruption and favouritism. Besides it opens the possibility to imagine new ways to deny information by conjuring even a highly improbable harm. Many High Court decisions including the Bhagat Singh case quoted earlier stated that the harm to a protected interest must be a reasonable possibility, not a distant probability. This approach of the apex court of thinking of a remote possibility to apply the exemption is becoming a haven for denying information to the citizens. satyamevajayate.info/wp-content/uploads/2017/08/Analysis-of-Supreme-Court-judgments-on-RTI.pdf
  10. Critical Analysis of Supreme Court Judgements on the RTI Act, 2005 By Shailesh Gandhi, Former Central Information Commissioner Judgment: Manohar s/o Manikrao Anchule vs. State of Maharashtra AIR 2013 SC 681 The issue before the Court: It was a case where disciplinary action had been recommended against the PIO under Section 20 (2) of the Act by the Information Commission. The observations of the Court: Para 11. The impugned orders do not take the basic facts of the case into consideration that after a short duration the appellant was transferred from the post in question and had acted upon the application seeking information within the prescribed time. Thus, no default, much less a negligence, was attributable to the appellant. 12. Despite service, nobody appeared on behalf of the State Information Commission. The State filed no counter affidavit.” The Court held that: The Commission’s order recommending disciplinary action against the PIO under Section 20 (2) of the Act, was quashed and set aside. Our analysis of the judgment: The Supreme Court having regard to the factual matrix of the case, set aside the decision of the Commission and the High Court. Can this be a legitimate exercise in SLP jurisdiction or in Writ jurisdiction by High Courts ? The eleven judge bench of the Supreme Court in Hari Vishnu Kamath v. Ahmad Ishaque 1955-IS 1104 : ((S) AIR 1955 SC 233) has laid down that – (1) Certiorari will be issued for correcting errors of jurisdiction; (2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice; (3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous. (4) An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision." The RTI Act does not have any provision for an appeal beyond the Commission as per Section 23. The Writ jurisdiction being a Constitutional remedy, may be resorted only in cases as set out hereinbefore in Hari Vishnu Kamath’s case. If the Order of the Commission does not fall into any of the 4 criterion stated in the aforesaid ruling, the High Courts and the Apex Court should not exercise their Writ or SLP jurisdiction. The judgment of the Supreme Court is based on its own assessment of the “facts of the case” which is not consistent with the decision in aforesaid Hari Vishnu Kamath and also series of rulings of the Apex Court, wherein it is held that, in SLP jurisdiction the Apex Court would not interfere in finding of facts, unless perversity in finding of fact is demonstrated. In the present case, there is no finding by the Apex Court that findings of the Commission was perverse or irrational. It appears the court has treated this is an appeal, for which it has no jurisdiction. satyamevajayate.info/wp-content/uploads/2017/08/Analysis-of-Supreme-Court-judgments-on-RTI.pdf
  11. Critical Analysis of Supreme Court Judgements on the RTI Act, 2005 By Shailesh Gandhi, Former Central Information Commissioner Judgment : Girish Ramchandra Deshpande Vs. Central Information Commission & Ors. (2013) 1 SCC 212 The issue before the Court: Whether the information pertaining to a Public Servant in respect of his service career and also the details of his assets and liabilities, movable and immovable properties, can be denied on the ground that the information sought for was qualified to be personal information as defined in clause (j) of Section 8(1) of the RTI Act. The observations of the Court: 12. The petitioner herein sought for copies of all memos, show cause notices and censure/punishment awarded to the third respondent from his employer and also details viz. movable and immovable properties and also the details of his investments, lending and borrowing from Banks and other financial institutions. Further, he has also sought for the details of gifts stated to have accepted by the third respondent, his family members and friends and relatives at the marriage of his son. The information mostly sought for finds a place in the income tax returns of the third respondent. The question that has come up for consideration is whether the above-mentioned information sought for qualifies to be "personal information" as defined in clause (j) of Section 8(1) of the RTI Act. 13. We are in agreement with the CIC and the courts below that the details called for by the petitioner i.e. copies of all memos issued to the third respondent, show cause notices and orders of censure/punishment etc. are qualified to be personal information as defined in clause (j) of Section 8(1) of the RTI Act. The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression "personal information", the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right. 14. The details disclosed by a person in his income tax returns are "personal information" which stand exempted from disclosure under clause (j) of Section 8(1) of the RTI Act, unless involves a larger public interest and the Central Public Information Officer or the State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information.” The Court held that: The Apex Court held that copies of all memos, show cause notices and orders of censure/punishment, assets, income tax returns, details of gifts received etc. by a public servant are personal information as defined in clause (j) of Section 8(1) of the RTI Act and hence exempted and cannot be furnished under RTI Act. Our analysis of the judgment: The judgement has expanded the scope of Section 8 (1) (j) far beyond its wording, without any discussion or interpretation of the law whatsoever. The only justification given for denial is that the Court agrees with the decision of the CIC. The Court mentions,” The performance of an employee/officer in an organization is primarily a matter between the employee and the employer”, forgetting that the employer is ‘we the people’ who gave ourselves the constitution. Section 8 (1) (j) exempts “information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.” The Supreme Court has missed realising that the exemption applies to personal information only if it has no relationship to any public activity or is an unwarranted invasion on the privacy of an individual. The court has not even quoted the important proviso. Effectively the court has read Section 8(1) (j) as: information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.” Forty seven words out of the eighty seven words have not been considered and the important proviso has not even been mentioned in the judgment. The clear intent of Section 8 (1) (j) is to ensure that if some record is held by the public authority which has no relationship to any public activity it is exempted from disclosure. Even if it is a public record and disclosure would be an unwarranted invasion of the privacy of an individual, this should not be given. The proviso provides an acid test and before refusing information under Section 8 (1) (j) a subjective assessment has to be made whether it would have been denied to Parliament or State Legislature. The aforesaid judgment clearly appears to be contrary to the following two judgements of the Supreme Court: 1. R Rajagopal and Anr. v state of Tamil Nadu (1994), SC The ratio of this judgement was: “28. We may now summarise the broad principles flowing from the above discussion: (1) the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone." A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. None can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages Position may, however be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy. (2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including Court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interest of decency (Article 19(2)) an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offense should not further be subjected to the indignity of her name and the incident being published in press/media. (3) There is yet another exception to the Rule in (1) above - indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties.” Public record as defined in the Public Records Act is any record held by any Government office. This judgement at point 2 clearly states that for information in public records, the right to privacy can be claimed only in rare cases. This is similar to the proposition in Section 8 (1) (j) which does not exempt personal information which has relationship to public activity or interest. It also talks of certain kinds of personal information not being disclosed which has been covered in the Act by exempting disclosure of personal information which would be an unwarranted invasion on the privacy of an individual. At point 3 it categorically emphasizes that for public officials the right to privacy cannot be claimed with respect to their acts and conduct relevant to the discharge of their official duties. Privacy is to do with matters within a home, a person’s body, sexual preferences etc as mentioned in the apex court’s earlier decisions in Kharak Singh and R.Rajagopal cases. This is in line with Article 19 (2) which mentions placing restrictions on Article 19 (1) (a) in the interest of ‘decency or morality’. If however it is felt that the information is not the result of any public activity, or disclosing it would be an unwarranted invasion on the privacy of an individual, it must be subjected to the acid test of the proviso: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. The proviso is meant as a test which must be applied before denying information claiming exemption under Section 8 (1) (j). Public servants have been used to answering questions raised in Parliament and the Legislature. It is difficult for them to develop the attitude of answering demands for information from citizens. Hence before denying personal information, the law has given an acid test: Would they would give this information to the elected representatives. If they come to the subjective assessment, that they would provide the information to MPs and MLAs they will have to provide it to citizens, since the MPs and MLAs derive legitimacy from the citizens. Another perspective is that personal information is to be denied to citizens based on the presumption that disclosure would cause harm to some interest of an individual. If however the information can be given to legislature it means the likely harm is not much of a threat since what is given to legislature will be in public domain. It is worth remembering that the first draft of the bill which had been presented to the parliament in December 2004 had the provision as Section 8 (2) and stated: (2) Information which cannot be denied to Parliament or Legislature of a State, as the case may be, shall not be denied to any person. In the final draft passed by parliament in May 2005, this section was put as a proviso only for section 8 (1) (j). Thus it was a conscious choice of parliament to have this as a proviso only for Section 8 (1) (j). It is necessary that when information is denied based on the provision of Section 8 (1) (j), the person denying the information must give his subjective assessment whether it would be denied to Parliament or State legislature if sought. The Girish Deshpande judgement is clearly contrary to the earlier judgement, since it accepts the claim of privacy for Public servants for matters relating to public activity which are on Public records. 2. The Supreme Court judgement in the ADR/PUCL case [(2002) 5 SCC 294] had clearly laid down that citizens have a right to know about the assets of those who want to be Public servants (stand for elections). It should be obvious that if citizens have a right to know about the assets of those who want to become Public servants, their right to get information about those who are Public servants cannot be lesser. This would be tantamount to arguing that a prospective groom must declare certain matters to his wife-to-be, but after marriage the same category of information need not be disclosed! When quoting Section 8 (1) (j) the Court has forgotten to mention the important proviso to this Section which stipulates, ‘Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.’ The Supreme Court did not even mention this in its judgement when quoting section 8 (1) (j) and has not considered it. If this proviso was quoted the Court would have had to record that in its opinion the said information would be denied to Parliament. The Court forgot its ruling in CIVIL APPEAL NOs.10787-10788 OF 2011 (Arising out of S.L.P(C) (judgement 2 above) at para 36: “ It is one of the well known canons of interpretation that no statute should be interpreted in such a manner as to render a part of it redundant or surplusage.” Bihar Government, Gujarat government, Municipal Corporation of Mumbai and many others had displayed the assets of all the officials on their website. The decision of the Supreme Court will reverse the transparency march and constrict Right to Information. It appears that the Court has not taken into account the two earlier judgements mentioned above, and the important proviso to Section 8 (1) (j) and hence the decision in Girish Deshpande’s case may be per incuriam. Besides, there does not appear to any ‘ratio decidendi’ in this judgement, that is to say, the judgment does not spells out any reason for the conclusion it reached. Hence this judgement cannot be a precedent. Unfortunately this judgment has resulted in most information about public officials being denied including that regarding their work. Consequently arbitrary favours by Public servants and their corruption has been obscured from the eyes of the public. Maharashtra government has issued a circular based on this judgement in which it instructs that all personal information of public servants must be refused because of the Girish Deshpande judgement. It is worth recording that the main ground for the judgement is agreement with the CIC decision. A perusal of the CIC decision also does not display any proper reasoning but is based on an earlier decision by a bench of the Commission. The bench decision which was relied on by CIC, did not even relate to information about a public servant! Besides the said CIC decision in the matter of Milap Choraria vs. CBDT did not analyse Section 8 (1) (j) fully, and grossly misinterpreted Section 11. Many High Court judgments and one by the Supreme Court have declared that ‘personal information’ cannot be given, unless a larger public interest is shown. It has become very popular with PIOs, First appellate authorities and Information Commissioner’s to deny most information relating to public servants. In the opinion of the Authors this judgment is not in consonance with the law and earlier Supreme Court judgments. It has created a exemption not in the law. This results in a constriction of the citizen’s fundamental right and the law’s objective of curbing corruption and wrong doings is defeated. It is worth remembering two judgments of the Supreme Court. A five judge bench has ruled in P. Ramachandra Rao v. State of Karnataka case no. appeal (crl.) 535.: “Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the legislature” In Rajiv Singh Dalal (Dr.) Vs. Chaudhari Devilal University, Sirsa and another (2008), the Supreme Court, after referring to its earlier decisions, has observed as follows. "The decision of a Court is a precedent, if it lays down some principle of law supported by reasons. Mere casual observations or directions without laying down any principle of law and without giving reasons does not amount to a precedent." The Girish Ramchandra Deshpande appears to have no ratio, nor does it lay down any principle with reasons. It has not considered the R. Rajagopal and ADR/PUCL judgments. Hence it should not considered as a precedent. But it has become the law, since everyone in power finds it convenient. This violates the RTI Act and is constricting the cit satyamevajayate.info/wp-content/uploads/2017/08/Analysis-of-Supreme-Court-judgments-on-RTI.pdf
  12. Critical Analysis of Supreme Court Judgements on the RTI Act, 2005 By Shailesh Gandhi, Former Central Information Commissioner Judgments: Namit Sharma Vs. Union of India (2013) 1 SCC 745 The issue before the Court: The Constitutional validity of Sections 12(5), 12(6), 15(5) and 15(6) of RTI Act, were challenged, which deals with the appointment and qualifications of Information Commissioners. The Court held that: The Court ruled that all Information Commissions must sit in benches of two, one of whom should be a retired judge and there should be transparency in the selection of Commissioners. Our analysis of the judgment: This judgement would have resulted in the effective disposal rates of all Commissions being reduced to less than 50% and possibly made it difficult for citizens to approach Commissions without lawyers. Its immediate impact was that many Commissions stopped working and backlogs which were already high became unmanageable. Presently the cost per decision of the Central Information Commission is about Rs.5000 to 7000 per decision. This would have doubled. Since the speed of disposals would have reduced to less than 50% citizens would have had to wait for years at the commissions. This would have made RTI irrelevant. The Apex Court by doing this, was in effect re-writing the RTI Act, which is otherwise the province of the Parliament. Just see, how this petition was decided: (Taken from DOPT’s affidavit for Review.) Preliminary Hearing Listed & Part heard 11/7/2012 18/7/2012 no respondent no respondent DOPT learnt on 18/7 about the petition; and briefed the Additional Solicitor General (ASG); ASG asked for time to file a counter affidavit. 19/7 /2012 Court said this was not necessary and ASG should give his arguments. ASG gave his verbal arguments and judgement was reserved on19/7/2012 DOPT filed written submissions11/09/2012 Court’s 107 page judgement allowing writ issued on 13/09/2012 DOPT’s anguished statement in the review petition: “ T. FOR THAT this Hon’ble Court, in the impugned judgment, has neither considered the oral arguments of the Petitioner herein, nor the Written Submissions filed by the Petitioner on 11.09.2012, putting forth the case of the Petitioner. The impugned judgment, at no place, records the submissions made by the counsel for the Petitioner when the matter was heard.” The respondent, Union of India,-in the petition is mentioned only once in the 107 page judgement,- in the title. The entire judgement reads as if there is only a petitioner and the Court! The judgement disrupted the working of some Information Commissions. If implemented it would have dropped the disposal rate to less than 50% since two Commissioners would have to sit together, one of whom would have to be a retired judge. Generally retired judges insist on lawyers arguing matters before them, whereas currently less than 1% of the appellants have a lawyer. This would have discouraged most ordinary citizens from approaching the Commission. The judgment appears to have been given without regard to the mandate of RTI law. If it had not been reviewed it would have damaged RTI permanently. The order was partly stayed in judgment 7 and the main objectionable parts of the judgement which had been given were withdrawn. The revised judgment claimed that the direction of transparency in appointments was still in operation, but gave no meaningful directions. Consequently the appointment of Commissioners continues on the basis of arbitrariness and patronage. The only change which has come is that the government spends money in conducting the farce of advertising the posts. After that the arbitrariness and patronage continue. satyamevajayate.info/wp-content/uploads/2017/08/Analysis-of-Supreme-Court-judgments-on-RTI.pdf
  13. Critical Analysis of Supreme Court Judgements on the RTI Act, 2005 By Shailesh Gandhi, Former Central Information Commissioner Judgment : CPIO, Supreme Court Vs. Subhash Chandra Agrwal (2011) 1 SCC 496. Case to be decided by Constitution Bench of the Supreme Court. The Constitution Bench is yet to be constituted. The issue before the Court: Whereas the information sought pertains to the Appointment of Judges in the Apex Court itself, the court framed the following issues to be addressed, 1. Whether the concept of independence of judiciary requires and demands the prohibition of furnishing of the information sought? Whether the information sought for amounts to interference in the functioning of the judiciary? 2. Whether the information sought for cannot be furnished to avoid any erosion in the credibility of the decisions and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision? 3. Whether the information sought for is exempt under Section 8(1)(j) of the Right to Information Act? The observations of the Court: Para 3:. The respondent Subhash Chandra Agarwal requested the CPIO, Supreme Court of India to arrange to send him a copy of “complete file/s (only as available in Supreme Court) inclusive of copies of complete correspondence exchanged between concerned constitutional authorities with file notings relating to said appointment of Mr. Justice HL Dattu, Mr. Justice AK Ganguly and Mr. Justice RM Lodha superseding seniority of Mr. Justice P Shah, Mr. Justice AK Patnaik and Mr. Justice VK Gupta as allegedly objected to Prime Minister’s Office (PMO) also”. Para 12: “The case on hand raises important questions of constitutional importance relating to the position of Hon'ble the Chief Justice of India under the Constitution and the independence of the Judiciary in the scheme of the Constitution on the one hand and on the other, fundamental right to freedom of speech and expression. Right to information is an integral part of the fundamental right to freedom of speech and expression guaranteed by the Constitution. Right to Information Act merely recognizes the constitutional right of citizens to freedom of speech and expression. Independence of Judiciary forms part of basic structure of the Constitution of India. The independence of Judiciary and the fundamental right to free speech and expression are of a great value and both of them are required to be balanced.” The Court held that: Registry to place this matter before Hon'ble the Chief Justice of India for constitution of a Bench of appropriate strength. Our analysis of the judgment: The CIC, the single judge of Delhi High Court and division bench of Delhi High Court had given rulings against the PIO of the Supreme Court and ordered information to be provided. The Supreme Court violating the basic principle of natural justice,- that nobody can be judge in his own cause,- stayed these judgements in a writ before itself. It has held that a Constitution bench will hear this matter. Since 2010 no hearing has been held. No great harm would have come to the Supreme Court if it had displayed the wisdom of gracefully accepting the verdict of the CIC and the High Court and avoided making itself a judge in its own cause, who then does not decide the matter. It is unfortunate that the Supreme Court has not considered this matter to be important enough to be decided. satyamevajayate.info/wp-content/uploads/2017/08/Analysis-of-Supreme-Court-judgments-on-RTI.pdf
  14. Critical Analysis of Supreme Court Judgements on the RTI Act, 2005 By Shailesh Gandhi, Former Central Information Commissioner Judgment : Khanpuram Gandaiah Vs. Administrative Officer AIR 2010 SC 615 The issue before the Court: The scope of the definition of “Information” contained in section 2(f) of the RTI Act. The observations of the Court: Para 6. Under the RTI Act "information" is defined under Section 2(f) which provides: "information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force. This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed, especially in matters pertaining to judicial decisions. A Judge speaks through his judgments or orders passed by him. If any party feels aggrieved by the order/judgment passed by a Judge, the remedy available to such a party is either to challenge the same by way of appeal or by revision or any other legally permissible mode. No litigant can be allowed to seek information as to why and for what reasons the Judge had come to a particular decision or conclusion. A Judge is not bound to explain later on for what reasons he had come to such a conclusion.” The Court held that: No information could be given, as none existed. Our analysis of the judgment: The denial was completely justified, as if no information existed on record, as per the judgement. satyamevajayate.info/wp-content/uploads/2017/08/Analysis-of-Supreme-Court-judgments-on-RTI.pdf
  15. Critical Analysis of Supreme Court Judgements on the RTI Act, 2005 By Shailesh Gandhi, Former Central Information Commissioner Judgment : Inst. Of Chartered Accountants Vs Shaunak H. Satya AIR 2011 SC 3336 The issue before the Court: (i) Whether the instructions and solutions to questions (if any) given by ICAI to examiners and moderators, are intellectual property of the ICAI, disclosure of which would harm the competitive position of third parties and therefore exempted under section 8(1)(d) of the RTI Act ? (ii) Whether providing access to the information sought (that is instructions and solutions to questions issued by ICAI to examiners and moderators) would involve an infringement of the copyright and therefore the request for information is liable to be rejected under section 9 of the RTI Act? (iii) Whether the instructions and solutions to questions are information made available to examiners and moderators in their fiduciary capacity and therefore exempted under section 8(1)(e) of the RTI Act? The observations of the Court: The Court first held at para 12 that denial of information could not be justified under Section 8(1) (d). It also held at para 13 and 14 that denial could not be justified under Section 9. At para 16 and 17 it held that the information is exempt under Section 8 (1) (e): Para 16: “The instructions and `solutions to questions' issued to the examiners and moderators in connection with evaluation of answer scripts, as noticed above, is the intellectual property of ICAI. These are made available by ICAI to the examiners and moderators to enable them to evaluate the answer scripts correctly and effectively, in a proper manner, to achieve uniformity and consistency in evaluation, as a large number of evaluators and moderators are engaged by ICAI in connection with the evaluation. The instructions and solutions to questions are given by the ICAI to the examiners and moderators to be held in confidence. The examiners and moderators are required to maintain absolute secrecy and cannot disclose the answer scripts, the evaluation of answer scripts, the instructions of ICAI and the solutions to questions made available by ICAI, to anyone. The examiners and moderators are in the position of agents and ICAI is in the position of principal in regard to such information which ICAI gives to the examiners and moderators to achieve uniformity, consistency and exactness of evaluation of the answer scripts. When anything is given and taken in trust or in confidence, requiring or expecting secrecy and confidentiality to be maintained in that behalf, it is held by the recipient in a fiduciary relationship.” Para 17: “It should be noted that section 8(1)(e) uses the words “information available to a person in his fiduciary relationship”. Significantly section 8(1)(e) does not use the words “information available to a public authority in its fiduciary relationship”. The use of the words “person” shows that the holder of the information in a fiduciary relationship need not only be a `public authority' as the word `person' is of much wider import than the word `public authority'. Therefore the exemption under section 8(1)(e) is available not only in regard to information that is held by a public authority (in this case the examining body) in a fiduciary capacity, but also to any information that is given or made available by a public authority to anyone else for being held in a fiduciary relationship. In other words, anything given and taken in confidence expecting confidentiality to be maintained will be information available to a person in fiduciary relationship. As a consequence, it has to be held that the instructions and solutions to questions communicated by the examining body to the examiners, head examiners and moderators, are information available to such persons in their fiduciary relationship and therefore exempted from disclosure undersection 8(1)(d) of RTI Act.”(appears to be a typing error and should be 8 (1)(e). Our analysis of the judgment: ICAI contended that instructions to examiners and model answers cannot be disclosed since they were exempt. Commission denied the information but the High Court accepted the applicant’s right to get the information. The apex court ruled out the applicability of Section 8 (1) (d) and Section 9. The Supreme Court then upheld the denial of Model answers by the examining body to the applicant holding it to be information held by ICAI in a fiduciary relationship. It is interesting to note that in paras 23 and 26 in the CBSE case referred earlier the Supreme Court had stated that an examining body is not in a fiduciary relationship with the examiners or examinees. If an examining body is not holding information in a fiduciary relationship with examiners or examinees then it cannot deny it by contending that the model answers are held in a fiduciary capacity. The court has correctly ruled that the examiners, moderators and head-examiners hold the information in a fiduciary relationship. But that does not necessarily mean that the examining body holds the information in a fiduciary relationship as per its pronouncements in the CBSE case. If a patient goes to a doctor and shares his information, the doctor holds the information in a fiduciary relationship. But there is never any expectation that the advice given by the doctor is held by the patient in a fiduciary capacity. It appears there is a logical fallacy, since the converse of any statement is not necessarily true. satyamevajayate.info/wp-content/uploads/2017/08/Analysis-of-Supreme-Court-judgments-on-RTI.pdf
  16. Critical Analysis of Supreme Court Judgements on the RTI Act, 2005 By Shailesh Gandhi, Former Central Information Commissioner Judgment : Chief Information Commissioner Vs. State of Manipur AIR 2012 SC 864 The main issue before the Court: Whether the Information Commissioner can direct the disclosure of information when a complaint is made u/s 18 of the RTI Act. The observations of the Court: Para 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 interpreted in such a manner as to render a part of it redundant or surplusage.” Para 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.” The Court held that: No information can be ordered to be given in complaints made u/s 18 of the RTI Act. Our analysis of the judgment: The information which was sought by the applicant was regarding magisterial enquiries. A complaint was filed since no response was received. The Commission ordered information to be provided. A single judge of High Court upheld the Commission’s order. This was challenged before a division bench, which held that in a complaint under Section 18 the Information Commission cannot pass an order to release information. The Supreme Court adopted a literal interpretation of the RTI Act and refused to consider whether a purposive interpretation would have served the purpose of the Act better. This is in contrast to the Allahabad High Court judgement in AP 3262 (MB) of 2008 which said, ‘“We are also of the view that the Commission while enquiring into the complaint under Section 18, can issue necessary directions for supply/disclosure of the information asked for, in case the Commission is satisfied that the information has been wrongly withheld or has not been completely given or incorrect information has been given.” By this judgement an RTI applicant who files a complaint will have to file a separate appeal for the same matter to obtain information. If a PIO refuses to accept an RTI application the applicant will have to first go in a complaint to the Commission and perhaps get the PIO penalised if she is lucky. After this if the PIO takes her application but denies the information saying it is ‘unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption’, she can be denied her fundamental satyamevajayate.info/wp-content/uploads/2017/08/Analysis-of-Supreme-Court-judgments-on-RTI.pdf
  17. Critical Analysis of Supreme Court Judgements on the RTI Act, 2005 By Shailesh Gandhi, Former Central Information Commissioner Judgment 1: CBSE Vs. Aditya Bandopadhyay (2011) 8 SCC 497 The main issue before the Court: Whether an examinee's (Students) right to information under the RTI Act includes a right to inspect his evaluated answer books in a public examination and taking certified copies of the same. The examining body,-CBSE,- had claimed that it held the information in a fiduciary relationship and hence this was exempt under Section 8 (1) (e) of the RTI Act. The observations of the Court: Para 18: “Section 22 of RTI Act provides that the provisions of the said Act will have effect, notwithstanding anything inconsistent therewith contained in any other law for the time in force. Therefore the provisions of the RTI Act will prevail over the provisions of the bye-laws/rules of the examining bodies in regard to examinations. As a result, unless the examining body is able to demonstrate that the answer-books fall under the exempted category of information described in clause (e) of section 8(1) of RTI Act, the examining body will be bound to provide access to an examinee to inspect and take copies of his evaluated answer-books, even if such inspection or taking copies is barred under the rules/bye-laws of the examining body governing the examinations.” Para 23. “It cannot therefore be said that the examining body is in a fiduciary relationship either with reference to the examinee who participates in the examination and whose answer-books are evaluated by the examining body.” Para 26: “The examining bodies contend that even if fiduciary relationship does not exist with reference to the examinee, it exists with reference to the examiner who evaluates the answer-books. On a careful examination we find that this contention has no merit….. Therefore it cannot be said that the examining body holds the evaluated answer books in a fiduciary relationship, qua the examiner. Para 37. “Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. “ The Court held that: The Court ruled that corrected answer sheets were information which should be provided to students who seek them under RTI. Our analysis of the judgment: The Court ordered the information to be provided. It held that it was not exempt since the examining body did not hold any information in a fiduciary relationship with the examiners or examinees. Unfortunately, despite the Supreme Court’s observation at para 18 that the provisions of the RTI Act will prevail over the provisions of the bye-laws/rules, Public Information Officers (PIOs) of most Courts refuse to give information in RTI to citizens regarding various matters saying citizens should approach them under relevant Court rules. They erroneously hold that the Court rules overrule the RTI Act! The observations made by Apex Court in Para 37 hereinabove are unsubstantiated and wholly uncalled for. There was no cause or reason for those observations. It does not befit the Supreme Court to make such disparaging remarks in respect of a fundamental right of citizens. There is not a shred of evidence that RTI is ‘obstructing the national development and integration, or destroying the peace, tranquillity and harmony amongst its citizens.’ To label citizens exercising their fundamental right as oppressors and intimidators is unacceptable. These observations from the apex court have been gleefully picked up by public officials and quoted to curb the citizen’s fundamental right. RTI has been recognised by the Supreme Court as being integral to Article 19 (1) (a) which states that all citizens shall have the right to freedom of speech and expression subject only to the restrictions laid out in Article 19 (2) of the constitution. Section 8 (1) effectively covers these and goes a little beyond. These remarks cannot be explained by any facts and runs contrary to all the earlier judgments on Right to Information. If it is argued that right to information should be related to transparency and accountability and eradication of corruption, it will then be argued that the freedom of speech and expression should be subjected to this test. With these statements the court dealt a serious blow to the fundamental right of citizens. This has warmed the hearts of many PIOs and Information Commissioners, and they are now parroting these lines to deny legitimate information. As for the accusation of RTI taking up 75% of time, I did the following calculation: By all accounts the total number of RTI applications in India is less than 10 million annually. The total number of all government employees is over 20 million. Assuming a 6 hour working day for all employees for 250 working days it would be seen that there are 30000 million working hours. Even if an average of 3 hours is spent per RTI application 10 million applications would require 30 million hours, which is 0.1% of the total working hours. This means it would require 3.2% staff working for 3.2% of their time in furnishing information to citizens. This too could be reduced drastically if computerised working and automatic updating of information was done as specified in Section 4 of the RTI Act. If Section 4 of the Act is properly implemented as envisaged in the law, the number of RTI applications would be less than 50% of the current level. The Supreme Court did not comment on the lack of Section 4 compliance by all public authorities but decided to pass unwarranted and unsubstantiated strictures against citizens using their fundamental right. An extensive study done by Right to Information Assessment and Analysis Group [RAAG] led by the scholarly and respected Shekhar Singh, shows that – 1. Around 54% of the RTI applications sought information which should have been displayed suo moto by the public authorities under their obligations under Section 4; About 20% of the RTI applicants were asking for information 2. Which should have been provided to them without their ever having to file an application or even without using the RTI Act. These applicants were seeking acknowledgement or response to earlier, often long pending, missives, or seeking feedback about, or an update on an ongoing interaction with the public authority. The Central Secretariat Manual of Office Procedures, (Thirteenth Edition, Ministry of Personnel, Public Grievances and Pensions, Department of Administrative Reforms and Public Grievances. September, 2010) mandates that proper replies to all communications from citizens should be sent within 30 days. Thus only 26% of the applications asked for information that was not required to be disclosed proactively, either publicly or privately to the applicants. It would have been appropriate if the Supreme Court had directed public authorities to do their duty as per the RTI Act instead of castigating citizens using their fundamental right as if they were interlopers or terrorists. SAtyamevajayate.info/wp-content/uploads/2017/08/Analysis-of-Supreme-Court-judgments-on-RTI.pdf
  18. ashakantasharma

    One year of RTI: Success stories

    One year of RTI: Success stories Oct 11, 2006 13:53 IST In Haryana A 70-old-woman gained access to files regarding pension and other benefits of her dead son — a Delhi Police constable who died in a road accident five years ago. Laxmi Devi of Bhiwani district had appealed to the Central Information Commission for access to notings in files pertaining to her son’s terminal benefits worth Rs 4 lakh. Laxmi was penniless after her son Anoop Singh’s death. Her daughter-in-law was drawing pension even after her remarriage in August 2005, Laxmi Devi told the panel. In Karnataka It was a unique combination of the right to information and the right to food. Villagers received their quota of ration through the Public Distribution System after villagers of Channagiri Taluka forced authorities to conduct public hearings to redress their grievances by filing RTI petitions. The villagers were not getting wheat for Rs 2 and rice at Rs 3 as announced by the state government. In Mumbai A resident of Borivili, Devraj Roy, filed an application under RTI asking for information about various projects announced by the Mumbai Rail Vikas Corporation. He found that most of the schemes were either on paper or had progressed marginally. But the officials had spent Rs 36 crore on hotel accommodation and in air-fare to foreign destinations. It jolted the officials. In Delhi The government cut a sorry figure when RTI activist Shekhar Singh moved the CIC demanding information on how far the government had progressed in granting 20 per cent reservation to students from the economically weaker section in private schools. The CIC said the government had failed to furnish “full information” on 40 applications. https://www.hindustantimes.com/india/one-year-of-rti-success-stories/story-Smq7niTszhWgRi9bqw7fYJ.html
  19. Can documents received via RTI be produced in courts as Secondary Evidences ?
  20. Has anyone extorted money using government tools like RTI?
  21. What are some limitations of RTI Act 2005?
  22. ashakantasharma

    A Look at Some RTI Success Stories

    The Right-to-Information Act has emerged as a powerful tool for India’s civil society to promote transparency and hold those in power accountable. The law, which allows Indian citizens to seek information from most government bodies, was first implemented in October 2005. Adarsh Housing Society, Commonwealth Games, and 2G are just a few of the scams and scandals that spring to mind when musing about the impact of the The Right To Information Act, over the past several year. And while the RTI, which came into force on October 12, 2005, has exposed the rot and corruption of the country's institutions and leaders, it has also played a huge role in improving the daily lives of people by making government accessible and accountable. The sweep of questions and concerns covered in tens of millions of RTI applications is impossible to catalogue, but whether it is seeking entitlements, exposing hoarding at local ration shops, or getting a village road constructed, these queries and complaints are all guided by the principle of standing up and being counted. The below are some of the most successful RTI cases:- Adarsh Society Scam: The applications filed by RTI activists like Yogacharya Anandji and Simpreet Singh in 2008 were instrumental in bringing to light links between politicians and military officials, among others. The 31-storey building, which had permission for six floors only, was originally meant to house war widows and veterans. Instead, the flats went to several politicians, bureaucrats and their relatives. The scandal has already led to the resignation of Ashok Chavan, the former chief minister of Maharashtra. Other state officials are also under the scanner. Public Distribution Scam in Assam: In 2007, members of an anti-corruption non-governmental organization based in Assam, the Krishak Mukti Sangram Samiti, filed an RTI request that revealed irregularities in the distribution of food meant for people below the poverty line. The allegations of corruption were probed and several government officials arrested. Appropriation of Relief Funds: Information obtained through an RTI application by an NGO based in Punjab, in 2008 revealed that bureaucrats heading local branches of the Indian Red Cross Society used money intended for victims of the Kargil war and natural disasters to buy cars, air-conditioners and pay for hotel bills – among other things. Local courts charged the officials found responsible with fraud and the funds were transferred to the Prime Minister’s Relief Fund. IIM’s Admission Criteria: Vaishnavi Kasturi a visually-impaired student, in 2007 was denied a seat in the Indian Institute of Management in Bangalore, one of the country’s premier management institutes – despite her impressive score at the entrance examination. Ms. Kasturi wanted to know why, and wondered whether it was because of her physical disability. She filed an RTI application to request the institute to disclose their selection process. Although she failed to gain admission to the institute, her RTI application meant that IIM had to make its admission criteria public. It emerged that the entrance exam, the Common Admission Test, actually mattered little compared to Class 10 and 12 results. Absconding Teacher: Soon after the Act came into force, parents in Panchampur village in the district of Banda, Uttar Pradesh, used it to track their local school teacher, who rarely made an appearance in the classroom. After learning from RTI activists that they could seek attendance and leave records of the government school teacher, 15 villagers filed an applicationasking about his whereabouts, and also questioned the responsibility of the Primary Education Department in such a situation. Immediate action was taken: a new school teacher was appointed to the village school, and an enquiry was ordered against the absconder. Chandigarh--Smoke Free City: In 2007, Chandigarh became the first smoke free city in India, which meant banning smoke in indoor spaces as well as prohibiting it in outdoor public places likes parks and markets. But Hemant Ghosh didn't expect his RTI applications to lead to such a landmark decision, which would influence other cities to enforce smoke-free laws in the years to come. His work is widely regarded as the trigger for the campaign to create awareness about the hazards of smoking, involving public service messages on television and cinemas, which has grown over the years. Soon after the Act came into force, Ghosh inundated the governments of Punjab and Haryana with over 300 queries on how The 2003 Cigarettes and Other Tobacco Products Act (COTPA),which sets out provisions to address smoking in public places, was being implemented in their shared capital. According to the 2003 law, his application asked whether the No Smoking Area Smoking here is an offence warning was displayed in offices and premises under government control." In 2007, 1,800 "warning boards" appeared in all government departments, police stations, hospitals and schools. Ghosh, who heads a Chandigarh-based NGO called Burning Brain Society, said that he was only trying to hold the government accountable. "What has been most satisfying is to see this replicated across the country," he said. Almost ten years on, however, another RTI application filed by Gaurav Bansal, a 21-year-old resident of Chandigarh, revealed that only fined 78 people were fined for smoking in public in 2013, which included 61 people in just the one area of sector 19. "Despite the claims of the administration to make the city a smoke-free one, only 78 persons were challenged (fined) in an entire year," he said. The Seven Ponds: In 2010, K.S. Sagaria smelt a rat when the paperwork showed that seven ponds had been constructed for below poverty lines families in Kushmal village of Orissa, but no one in the village could spot them. So he filed an RTI application which revealed that the ponds were never dug, the “labourers” who worked to “construct” the ponds included dead people. Following complaints, the administration suspended the officials involved in the subterfuge, and the project was renewed, but this time, the villagers vowed to keep a check on its progress. Scholarships For Students: While several of his classmates and their parents were fretting when they didn't receive their scholarships for the academic year of 2011-2012, nine-year-old Manoj, a student at the government primary school in Vailpoor, Nizamabad district of Telangana, filed an application. In his application directed at the Labour Welfare Department, the class 4 student asked why the money had not reached the students, and by when they could expect their scholarships. Manoj's RTI application secured scholarships for 10 students, who are the children of beedi workers. School Uniforms: When students of Gulrahai Primary School in Allahabad did not receive their school uniforms in December 2006, nine parents filed an RTI application questioning the administration about the missing uniforms, which led to school dresses being delivered in the first week of January, 2007. Parents of a government school in Chitrakoot, Uttar Pradesh, also procured school uniforms by filing an RTI application. Unjustifiable restrictions imposed by CBSE on the examinees: A must- read information which may be helpful to a large number of our fellow citizens. A landmark decision with respect to unjustifiable restrictions imposed by Central Board of Secondary Education (CBSE), Patna on the examinees delivered by Central Information Commissioner (CIC) Prof.M.Sridhar Acharyulu (Madabhushi Sridhar). This is one of the best decisions delivered ever by CIC which may be useful to a large cross section of society. The appellant, father of a student has sought copies of the answer sheets of his son for the subjects Maths and Science of 12th Class examination appeared in 2013 and the related matters. The information sought was denied by CPIO on the following grounds: 1. The request for the supply of evaluated answer sheets was made, not by the candidate, who appeared in the examination, but by his father, as the rules framed by the CBSE vide its Notification dated 17.06.2013 mandates the candidate should to make application. 2. The last date for the receipt of requests through online for the supply of evaluated answer sheets was 3.7.2013, and the RTI request, made by the candidate’s father was 12.8.2013. 3. Requests/applications for supply of answer sheets should be made only through online within 10 days from the date of declaration of the result. 4. After downloading the hardcopy of the printout of the request/ confirmation page, from the website, the candidate should get the same reached to the CBSE office, before the specified date, along with the fee and other prescribed enclosures. 5. Among the documents to be enclosed along with the application, there is an undertaking from the candidate, written in his own handwriting and under his own signature and not by anyone else on his behalf. The signature should correspond to that present on the Admit Card of the candidate. The candidate cannot question the evaluation done by the examiner. The candidate can only point out the errors in the totaling of marks, or the answers which were not evaluated by the examiner. These errors should be communicated by the candidate in writing to the CBSE within 10 days from the date of receipt of the evaluated answer sheets. There is no provision in the CBSE Rules, for the revaluation of the answer sheets again. 6. The candidate should also undertake that the copies of his answer sheets shall not be given to any institution or school for display, commercial purpose or to print media. The Commission considered that the respondent authority has created several unreasonable conditions to either limit or delay and deny the right to information of the student who appeared for the examination conducted by CBSE in 2013. The reasonability and legality or validity or otherwise of the contentions of the CBSE are given below: 1. The CBSE has no authority to impose such restriction on the rights of minor and his guardian. The natural guardian (father) has a legal duty and authority to secure the rights and benefits of the minor boy. In that capacity he has every right to seek right to information of his son be implemented and any injustice occurring to his son in evaluation of his answer scripts which might affect his career forever. The CBSE did not explain in reasonable terms why it has denied the natural guardian from exercising his legal duty to secure the legal interests of his son including his right to information. Hence the reason cited to deny the ‘father’ is unreasonable and illegal and also in violation of rights of the minor boy. The CBSE has no authority to impose such restriction on the rights of minor and his guardian. Hence the Commission holds that the appellant who is the father of the candidate is entitled for the copies of the answer sheets of his son, which shall be supplied to him. 2. Application was submitted beyond last date prescribed by the CBSE. The appellant has exercised his right to information under RTI Act, 2005 according to which the public authority should give information held by it. The CBSE has not denied the fact of holding the answer scripts of the son of appellant as on the date of RTI application. Once the RTI has been filed, it has no authority to destroy the answer scripts since the demand under statute is pending. Hence the contention that appellant approached beyond the last date does not hold good under RTI Act. 3. The candidate has to sign undertaking papers relinquishing his right to reevaluation has been imposed unreasonably. If a student has a legally recognized right to reevaluation, why should he relinquish it simply because he wanted to exercise another legal right to information by seeking to have copy of the answer script? The recognition and guaranteeing of right to information is aimed at making the public authority ‘accountable’. But by imposing this condition the CBSE is not only restricting that right to information, but also insulating itself from being accountable. This condition that student should sign off his rights by an undertaking is a serious obstruction to right to information of minor boy and his guardian. 4. Condition to relinquish right to share answer script with others, media to question the wrong evaluation etc. Another unreasonable condition imposed by CBSE is that candidate shall not display answer script after obtaining it under RTI Act. He should not share with print media also. These are unconstitutional restrictions on the right to freedom of speech and expression guaranteed by Article 19(1)(a) of Indian Constitution. 5. Condition against using information for commercial purposes. This is yet another unreasonable condition on use of information obtained under RTI Act. The CBSE wanted the appellant to file an undertaking saying he would not use it for commercial purposes. How can CBSE impose restrictions on the use of information obtained by the citizen, which were not imposed by the Right to Information Act, 2005. CIC has passed following Directions/ Order: 1. The undertakings prescribed by the CBSE have the effect of seriously obstructing the access to information beyond what was permitted by the Right to Information Act, 2005. By prescribing such rules and imposing conditions such as above, the CBSE tried to legislate something which is not prescribed or authorized by the Parliament through the Right to Information Act, 2005. 2. The Commission directs the CBSE to put in place such system with conducive practices by which the Right to information of the appellants is not limited but facilitated, by removing the obstacles such as undertaking to give up their legal rights, as mentioned above. 3. The Commission further directs the CBSE to pay a compensation of Rs.25,000/ to the appellant within 15 days from the date of receipt of this order for harassing him and compelling him to sign illegal undertaking to give up rights. The Commission directs the CBSE to furnish the certified copies of the answer scripts as required to the appellant, free of cost, within 21 days from the date of receipt of this order. Massive stink over Planning Commission's Rs 35 lakh toilets: The government may be speaking of austerity and curbing expenditure on various public schemes, but the the Planning Commission must not have got that memo and an RTI application has revealed a massive Rs 35 lakh to renovate two toilets at Yojana Bhavan. According to the RTI application filed by activist Subhash Agrawal, not only were the two toilets renovated for this sum, an additional five lakhs was spent on installing a smart-card system which restricted access to the toilets to 60 senior officials who work at the complex. NDTV reported that the commission also planned to install security cameras in the corridors leading to these toilets to ensure equipment was not stolen. The 35-lakh toilets were, according to plans, to serve as models for upgrading another three toilets in the building at a later stage. Whether they would also have access through smart cards was not clear. The petitioner S Agarwal meanwhile, hit out at the Planning Commission, and said his RTI application had revealed that another three such toilets were in the works. "It will not end here. Some other government and public offices will follow the same trend. This kind of wasteful expenditure when the government is talking about austerity and when the planning commissioner says that Rs 28 is the poverty line, is ridiculous", he said. The revelations of the RTI application has drawn massive criticism from opposition parties. Senior BJP spokesman Balbir Punj said that the revelation was 'shocking' and strongly condemned the move. Meanwhile the news has prompted the phrase Rs 35 to start trending on Twitter, with some well intentioned 'toilet humor'. @Roflindian said, "Spending Rs 35 lakhs for two toilets must be the most expensive way to relieve a south block in the morning", while @RameshSrivats said "By spending Rs. 35 lakhs on renovating two toilets. India has made it clear that it is an emerging superpower." There have also been some obvious references made to the extravagance of the planning commission, particularly comparing the large sum of money to the much criticized Rs 28 urban poverty line that was decided upon by the members of the commission. Travel costs of Planning Commissioner Montek Singh Alhuwalia were also criticized in a recent report in The Hindu. columnist P Sainath argued, based on RTI information obtained by other journalists, how massive the overseas travel expenses of Montek, who is otherwise known for his justification of the poverty-line argument, were. The highlight of Sainath’s article was that the average daily expense of Alhuwalia was Rs. 2.02 lakhs during his overseas travel between May and October last year. Using Montek’s own Rs 26 a day calculation, this could have sustained a poor person in rural India for more than 20 years! http://www.firstpost.com/india/massive-stink-over-planning-commissions-rs-35-lakh-toilets-333970.html https://www.quora.com/What-was-the-most-valuable-information-ever-asked-using-the-RTI-Act-in-India http://rti.india.gov.in/cic_decisions/CIC_RM_A_2014_000014_M_174361.pdf https://blogs.wsj.com/indiarealtime/2011/10/14/a-look-at-some-rti-success-stories/ https://www.huffingtonpost.in/2015/10/13/rti-10-years_n_8277290.html
  23. ashakantasharma

    How I became an Information Commissioner ?

    How I became an Information Commissioner ? AUGUST 28, 2017 BY SHAILESH GANDHI Some friends wonder how I have the gall to be critical of the lack of process in selecting Information Commissioners, since they believe I must have resorted to influence and patronage for my selection. Let me detail the story of how i got selected: In the first week of August 2008 Arvind Kejriwal learnt that the government had decided on the names of four persons whom they would appoint as Central Information Commissioners. These were: Satyananda Mishra M.L.Sharma Annapurna Dixit R.B.Sreekumar I believe there is a tacit understanding between the ruling party and the opposition on such matters and overall there is a certain give and take in matters of appointments. Arvind discussed with me that though we had been fighting for appointment of good Commissioners and transparency in the selection process we were not making any headway. He therefore suggested that we propose four names from civil society. We got together a list of credible persons and Arvind arranged to get letters sent to the PM, Advani and Prithvraj Chavan by some prominent civil society members recommending these. On 20 August Prithviraj Chavan asked for a meeting of the Selection Committee to be called on 21 August at 6.00pm. I have heard that on 20 night the four names were shown to LK Advani. Advani strongly objected to the name of Sreekumar since he had been a senior police officer in Gujarat at the time of the Godhra riots and openly criticized Narendra Modi. He said he would oppose Sreekumar’s selection and said, ‘Why not one of the names suggested by civil society?’ The selection Committee meeting was not held on 21 August. I did not know Prithviraj Chavan, nor did he know me. Whether he made any checks about the other three members of our panel I do not know. As for me, he called up a business person in Mumbai and asked him what kind of person I was. This person had never met me, but based on what he had read in the papers he said I would be a good choice. After this Prithviraj Chavan called me and asked me if I would accept if I was selected as a Central Information Commissioner, and I said yes. On 27 August a meeting was called and my name was put in place of R.B. Sreekumar. Some of this information is available at http://persmin.gov.in/DOPT/RTICorner/ImpFiles/6_4_2008_IR_Vol_I_Noting.pdf I can assure all of you, that I did not use any influence or network. It was a random occurrence, but my selection was also without any process and a random occurrence. The record also shows Asok K Mahaptra’s name and I do not have any knowledge of how his name was dropped. I would urge RTI activists who have an understanding of the legal issues of the law to apply for the positions of Information Commissioners. Ciitizens should put forward names of persons with a background in transparency and build pressure I would also like to point out two matters as a personal clarification: I had informed the government that I was paying volunteers to work with me is mentioned on page 22. Whereas in 2007-2008 five Commissioners disposed 7722 cases I alone averaged about 5400 cases per year. All my emails are in public domain By Shailesh Gandhi Shailesh Gandhi is a first generation entrepreneur and a Distinguished Alumnus awardee of IIT Bombay. He sold his company to become a RTI activist. Shailesh was part of the National RTI movement which was involved in drafting the National Act. He was convener of the National Campaign for People’s Right To Information. He has used RTI and also trained many citizens and government officials in over 1000 workshops to use it. The only RTI activist to have been chosen as a Central Information Commissioner, he disposed a record of over 20000 cases in 3 years and 9 months, and ensured that most cases were decided in less than 90 days. He gave many landmark decisions on RTI, apart from organizing the first digital paper-less office in the Commission. He is passionately pursuing the cause of evolving ways for a time bound justice delivery system, and improving governance systems. Amongst many awards he has been awarded the Nani Palkhiwala Civil Liberties award, and the MR Pai award. He has published a book: RTI Act- authentic interpretation of the Statute and a paper critiquing Supreme Court judgments on RTI. http://satyamevajayate.info/2017/08/28/how-i-became-an-information-commissioner/
  24. ashakantasharma

    Right To Information Constricted

    RTI constricted RTI usage and propagation is moving at a fast pace because of citizen enthusiasm and desire for accountable governance. The biggest gain has been in empowering individual citizens to translate the promise of ‘democracy of the people, by the people, for the people’ into a living reality. The law as framed by Parliament has outstandingly codified this fundamental right of citizens. When framing the law cognizance had been taken of various landmark decisions of the Supreme Court on this subject. One of the objectives of this law mentioned in its preamble is to contain corruption. It is a simple, easy to understand statute, which common people can understand. However, there are some decisions of information commissions and courts which are constricting this fundamental right of citizens which is neither sanctioned by the constitution or the law. This paper is an effort to highlight one such instance,- the Girish Ramchandra Deshpande judgment,- which is resulting in an effective amendment of the law without Parliamentary sanction. The denial of information has been justified on the basis of Section 8 (1) (j) which allows denial of information, when: information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. The RTI Act mandates that all citizens have the right to information subject to the provisions of the Act. Section 7 (1) clearly states that information can only be refused for the reasons specified in Section 8 and 9. Section 22 of the Act ensures that no prior laws or rules can be used to deny information. I would also draw attention to the fact that the reasonable restrictions which may be placed on the freedom of expression under Article 19 (1) (a) have been mentioned in Article 19 (2) in the constitution as affecting “the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.” It is worth remembering two judgments of the Supreme Court. A five judge bench has ruled in P. Ramachandra Rao v. State of Karnataka case no. appeal (crl.) 535.: “Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the legislature”. In Rajiv Singh Dalal (Dr.) Vs. Chaudhari Devilal University, Sirsa and another (2008), the Supreme Court, after referring to its earlier decisions, has observed as follows. “The decision of a Court is a precedent, if it lays down some principle of law supported by reasons. Mere casual observations or directions without laying down any principle of law and without giving reasons does not amount to a precedent.” The Supreme Court’s judgment in the Girish Ramchandra Deshpande[1] judgment is being treated as the law throughout the country and I will argue that this has the effect of amending Section 8 (1) (j) without legitimacy. This paper will seek to show that the impugned judgment does not lay down the law and is being wrongly used to constrict the citizen’s fundamental right to information. Girish Ramchandra Deshpande had sought copies of memos, show cause notices and censure/punishment awarded to a public servant. He had also demanded details of assets and gifts received by him. Since the Central Information Commission gave an adverse ruling he finally went to the Supreme Court. The main part of the judgment states: “12. The petitioner herein sought for copies of all memos, show cause notices and censure/punishment awarded to the third respondent from his employer and also details viz. movable and immovable properties and also the details of his investments, lending and borrowing from Banks and other financial institutions. Further, he has also sought for the details of gifts stated to have accepted by the third respondent, his family members and friends and relatives at the marriage of his son. The information mostly sought for finds a place in the income tax returns of the third respondent. The question that has come up for consideration is whether the above-mentioned information sought for qualifies to be “personal information” as defined in clause (j) of Section 8(1) of the RTI Act. We are in agreement with the CIC and the courts below that the details called for by the petitioner i.e. copies of all memos issued to the third respondent, show cause notices and orders of censure/punishment etc. are qualified to be personal information as defined in clause (j) of Section 8(1) of the RTI Act. The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression “personal information”, the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right. The details disclosed by a person in his income tax returns are “personal information” which stand exempted from disclosure under clause (j) of Section 8(1) of the RTI Act, unless involves a larger public interest and the Central Public Information Officer or the State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information.” A careful reading of the law shows that personal Information held by a public authority may be denied under section 8(1)(j), under the following two circumstances: Where the information requested, is personal information and the nature of the information requested is such that, it has apparently no relationship to any public activity or interest; or Where the information requested, is personal information, and the disclosure of the said information would cause unwarranted invasion of the privacy of the individual. If the information is personal information, it must be seen whether the information came to the public authority as a consequence of a public activity. Generally most of the information in public records arises from a public activity. Applying for a job, or ration card are examples of public activity. However there may be some personal information which may be with public authorities which is not a consequence of a public activity, eg. Medical records, or transactions with a public sector bank. Similarly a public authority may come into possession of some information during a raid or seizure which may have no relationship to any public activity. Even if the information has arisen by a public activity it could still be exempt if disclosing it would be an unwarranted invasion on the privacy of an individual. Privacy is to do with matters within a home, a person’s body, sexual preferences etc as mentioned in the apex court’s earlier decisions in Kharak Singh and R.Rajagopal cases. This is in line with Article 19 (2) which mentions placing restrictions on Article 19 (1) (a) in the interest of ‘decency or morality’. If however it is felt that the information is not the result of any public activity, or disclosing it would be an unwarranted invasion on the privacy of an individual, it must be subjected to the acid test of the proviso: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. The proviso is meant as a test which must be applied before denying information claiming exemption under Section 8 (1) (j). Public servants have been used to answering questions raised in Parliament and the Legislature. It is difficult for them to develop the attitude of answering demands for information from citizens. Hence before denying personal information, the law has given an acid test: Would they would give this information to the elected representatives. If they come to the subjective assessment, that they would provide the information to MPs and MLAs they will have to provide it to citizens, since the MPs and MLAs derive legitimacy from the citizens. Another perspective is that personal information is to be denied to citizens based on the presumption that disclosure would cause harm to some interest of an individual. If however the information can be given to legislature it means the likely harm is not much of a threat since what is given to legislature will be in public domain. It is worth remembering that the first draft of the bill which had been presented to the parliament in December 2004 had the provision as Section 8 (2) and stated: (2) Information which cannot be denied to Parliament or Legislature of a State, as the case may be, shall not be denied to any person. In the final draft passed by parliament in May 2005, this section was put as a proviso only for section 8 (1) (j). Thus it was a conscious choice of parliament to have this as a proviso only for Section 8 (1) (j). It is necessary that when information is denied based on the provision of Section 8 (1) (j), the person denying the information must give his subjective assessment whether it would be denied to Parliament or State legislature if sought. It is worth noting that in the Privacy bill 2014 it was proposed that Sensitive personal data should be defined as Personal data relating to: “(a) physical and mental health including medical history, (b) biometric, bodily or genetic information, (c) criminal convictions (d) password, (e) banking credit and financial data (f) narco analysis or polygraph test data, (g) sexual orientation. Provided that any information that is freely available or accessible in public domain or to be furnished under the Right to Information Act 2005 or any other law for time being in force shall not be regarded as sensitive personal data for the purposes of this Act”. Only if a reasoned conclusion is reached that the information has no relationship to any public activity or that disclosure would be an unwarranted invasion on the privacy of an individual a subjective assessment has to be made whether it would be given to Parliament or State legislature. If it is felt that it would not be given, then an assessment has to be made as Section 8 (2) whether there is a larger public interest in disclosure than the harm to the protected interest. If no exemption applies there is no requirement of showing a larger public interest. In the impugned judgment a RTI request for copies of all memos, show cause notices, orders of censure/punishment, assets, income tax returns, details of gifts received etc. of a public servant was denied. The court has ruled without giving any legal arguments merely by saying that this is personal information as defined in clause (j) of Section 8(1) of the RTI Act and hence exempted. The only reason ascribed in this is that the court agrees with the Central Information Commission’s decision. Such a decision does not form a precedent which must be followed. It cannot be justified by Article 19 (2) of the constitution or by the complete provision of Section 8 (1) (j). As per the RTI act denial of information can only be on the basis of the exemptions in the law. The court has denied information by reading Section 8 (1) (j) as exempting: “information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.” There are no words in the judgment,- or the CIC decision which it has accepted,- discussing whether the disclosure has any relationship to a public activity, or if disclosure would be an unwarranted invasion on the privacy. The words which have been struck above have not been considered at all and information was denied merely on the basis that it was personal information. Worse still the proviso ‘Provided that the information…..’ (underlined above) has not even been mentioned and while quoting the entire Section 8 (1) the proviso has been missed . Effectively only 40 of the 87 words in this section were considered. This proviso is very important and the court should have addressed it. I would also like to quote the ratio of R Rajagopal and Anr. v state of Tamil Nadu (1994), SC The ratio of this judgement was: “28. We may now summarise the broad principles flowing from the above discussion: (1) the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a “right to be let alone.” A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. None can publish anything concerning the above matters without his consent – whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages Position may, however be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy. (2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including Court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interest of decency (Article 19(2)) an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offense should not further be subjected to the indignity of her name and the incident being published in press/media. (3) There is yet another exception to the Rule in (1) above – indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties.” Public record as defined in the Public Records Act is any record held by any Government office. This judgement at point 2 clearly states that for information in public records, the right to privacy can be claimed only in rare cases. This is similar to the proposition in Section 8 (1) (j) which does not exempt personal information which has relationship to public activity or interest. It also talks of certain kinds of personal information not being disclosed which has been covered in the Act by exempting disclosure of personal information which would be an unwarranted invasion on the privacy of an individual. At point 3 it categorically emphasizes that for public officials the right to privacy cannot be claimed with respect to their acts and conduct relevant to the discharge of their official duties. The Girish Deshpande judgment is clearly contrary to the earlier judgment R.Rajagopal judgment, since it accepts the claim of privacy for Public servants for matters relating to public activity which are on Public records 2. The Supreme Court judgement in the ADR/PUCL Civil Appeal 7178 of 2001 has clearly laid down that citizens have a right to know about the assets of those who want to be Public servants (stand for elections). It should be obvious that if citizens have a right to know about the assets of those who want to become Public servants, their right to get information about those who are Public servants cannot be lesser. This would be tantamount to arguing that a prospective groom must declare certain matters to his wife-to-be, but after marriage the same information need not be disclosed! The Girish Ramchandra Deshpande judgment should not be treated as a precedent which must be followed for the following reasons: It is devoid of any detailed reasoning and does not lay down a ratio. It does not analyse whether a public servant’s work and assets is information which is a public activity or not. The judgment when stating that certain matters are between the employee and the employer misses the fact that the employer is the ‘people of India’. It has completely forgotten the proviso to Section 8 (1) (j) which requires subjecting a proposed denial to this acid test. It has not considered the clear ratio of the Rajagopal judgment or the ADR/PUCL judgment. A major provision of the RTI Act has been amended by a judicial pronouncement which appears to be flawed. A major tool of citizens to bring the shenanigans, arbitrary and corrupt acts of public servants has been affected adversely without a proper reasoning. Commissioners must discuss this and it must be recognized that Girish Ramchandra Deshpande does not lay down the law on Section 8 (1) (j) of the RTI Act., and it is contrary to the ratio of the R.RajagopaI and ADR judgments. A five judge bench has ruled in P. Ramachandra Rao v. State of Karnataka case no. appeal (crl.) 535.: “Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the legislature.” Shailesh Gandhi shaileshgan@gmail.com Former Central Information Commissioner [1] Special Leave Petition (Civil) No. 27734 of 2012; Girish Ramchandra Deshpand Versus Cen. Information Commr. & Ors; KS Radhakrishnan & Dipak Misra; 3 October 2012; (2013) 1 SCC 212 http://satyamevajayate.info/2017/08/28/rti-constricted/
  25. ashakantasharma

    Misuse’ of Right to Information

    'Misuse’ of RTI AUGUST 28, 2017 BY SHAILESH GANDHI As an Information Commissioner who dealt with over 20000 cases I had the opportunity of interacting with a large number of RTI users and Public Information Officers (PIOs). Generally PIOs would refer to most applicants who file RTI applications regularly as blackmailers, harassers and those who were misusing RTI. I would broadly divide those who filed a large number of RTI applications in the following categories: Those who filed RTI applications with the hope of exposing corruption or arbitrariness and hoped to improve and correct governance. Those who filed RTI applications repetitively to correct a wrong which they perceived had been done to them. Their basic intention is to get justice for themselves. Those who used RTI to blackmail people. This category largely targets illegal buildings, mining or some other activity which runs foul of the law. Those who use this to harass a public official to get some undue favour. All these categories together comprise around 20% of the total appeals and complaints before the Commission. These represent persistent users of RTI who are generally knowledgeable about appeals and procedures. Nobody will deny that the first category certainly deserves to be encouraged. In the second category there are some who have been able to get corrective action and some whose grievance may defy resolution. When faced with such applicants, PIOs should speak to the concerned officer to evaluate whether the grievance can be redressed. Generally most of us have a strong aversion for the third and fourth category who are making it a money-earning racket or putting pressure to get an undue favour. The last two categories certainly does not exceed 10% of the total appeals and complaints. I would like to note that most of the average citizens who do not get information are unaware of the process of appeals. Over 40% of those who attempt filing appeals at CIC are discouraged with imperious returns. Thus it appears that the third and fourth category will be much smaller than 10% in terms of RTI applications. I would argue that in the implementation of most laws some people will misuse its provisions. The police often misuse their powers to subvert the law, and so also criminals misuse our judicial system to prolong trials. The misuse of any laws is largely dependent on the kind of people in a society and whether the justice system has the capability of punishing wrongdoers. There are people who go to places of worship with the sole objective of committing theft or other crimes. But society does not define these as the main characteristic of temples. Is it reasonable to expect that only angels will use RTI? To be able to blackmail an officer or someone who has indulged in an illegal activity, there are some illegal actions. Noticing and curbing these is the job of various government officers and the citizen is actually acting as a vigilance monitor. I have often questioned government officers how the blackmailers operate. They state that the RTI blackmailer threatens an illegal action with exposure and thereby extorts money. I have sometimes wondered why society has such touching empathy for the victims who have committed illegal acts. The fourth category must be discouraged and Information Commissioners can do this fairly easily. This can be done by either ordering an inspection of the files by the appellant. Two simple tips to PIOs to handle repetitive RTI queries: Ensuring that the information is provided in less than 10 days by taking applications from such applicants on priority. Ensuring that letter asking for additional fees is sent well in time. I have found such an approach usually leading to reduction of such applications. If however this does not have any effect, then the matter should be highlighted before the Information Commissioner in second appeal. Another good practice which could be adopted would be to upload all queries and the replies on the website. Where information has already been provided applicants may not ask for it. Even if they do ask, the PIO would find it easy to provide it. Besides in a few cases where an applicant is filing what appears to be frivolous or repetitive applications, this would be a restraint since it would expose such applicants. If someone is indeed filing requests for the same information repetitively make him pay each time. The constant refrain of some people to highlight ‘misuse’ of RTI is an attempt to muzzle the citizen’s fundamental right. Freedom of speech and media which also are covered under Article 19 (1) (a) have been expanding with time. There is a national debate when a movie is subjected to cuts or people or media are muzzled by government, political class or ruffians. Yet the nation goes along with this big lie of RTI threatening the peace, harmony and integrity of India. If RTI is curbed the day is not far when we will have to give reasons to speak and establish our identity. A person can be defamed by speech or writing. Should we now have a demand to allow only those persons to speak who give reasons and established their identity ? On the other hand RTI can only seek information which exists on records. One of the most problematic statements by the Supreme Court is quoted in many places: “Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. “ This needs to be contested. The statement “should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens” would be appropriate for terrorists, not citizens using their fundamental right to information. There is no evidence of RTI damaging the nation. As for the accusation of RTI taking up 75% of time, I did the following calculation: By all accounts the total number of RTI applications in India is less than 10 million annually. The total number of all government employees is over 20 million. Assuming a 6 hour working day for all employees for 250 working days it would be seen that there are 30000 million working hours. Even if an average of 3 hours is spent per RTI application (the average is likely to be less than two hours) 10 million applications would require 30 million hours, which is 0.1% of the total working hours. This means it would require 3.2% staff working for 3.2% of their time in furnishing information to citizens. This too could be reduced drastically if computerised working and automatic updating of information was done as specified in Section 4 of the RTI Act. It is unfortunate that the apex court has not thought it fit to castigate public authorities for their brazen flouting of their obligations under Section 4, but upbraided the sovereign citizens using their fundamental right. I would submit that the powerful find RTI upsetting their arrogance and hence try to discredit it by often talking about its misuse. There are many eminent persons in the country, who berate RTI and say there should be some limit to it. It is accepted widely that freedom of speech is often used to abuse or defame people. It is also used by small papers to resort to blackmail. The concept of paid news has been too well recorded. Despite all these there is never a demand to constrict freedom of speech. But there is a growing tendency from those with power to misinterpret the RTI Act almost to a point where it does not really represent what the law says. There is widespread acceptance of the idea that statements, books and works of literature and art are covered by Article 19 (1) (a) of the constitution, and any attempt to curb it meets with very stiff resistance. However, there is no murmur when users of RTI are being labelled deprecatingly, though it is covered by the same article of the constitution. Everyone with power appears to say: “I would risk my life for your right to express your views, but damn you if you use RTI to seek information which would expose my arbitrary or illegal actions.“ An information seeker can only seek information on records. We rate amongst the top five in the world in terms of provisions of the law and 66 in terms of implementation. Any amendments or obstructionist acts will push us closer to our low rank in implementation. I would also submit that such frivolous attitude towards our fundamental right is leading to an impression that RTI needs to be curbed and its activists maybe deprecated, attacked or murdered. Shailesh Gandhi http://satyamevajayate.info/2017/08/28/misuse-of-rti/
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