Maharashtra – Co-operative societies now come under RTI Act #mustshare

 

VINITA DESHMUKH | 10/04/2013 , Moneylife.in

Co-operatives make up for one-sixth of Maharashtra’s economy; they are also abodes of chronic corruption. No wonder, many are yet to digest the fact that co-operatives have now come under the RTI Act and so public disclosures of their functioning is mandatory

Vijay Kumbhar, a leading RTI (Right to Information) activist from Pune, has beenresearching on the aspect of co-operatives coming under the RTI Act after the enactment of the 97^th amendment to the Constitution of India in March 2012. Now, “co-operativesocieties” have not only become a part of Article 19 of the Constitution of India making them one of the fundamental rights of a citizen, but have now also been given the status of local self-government in Part IX of the Constitution. This makes them accountable under the RTI Act. However, many a vested interest is trying to hoodwink this fact. A tete-a-tete with Kumbhar.
Why do you say that co-operative societies which were until recently out of the gambit of RTI Act, now come under it?
Vijay Kumbhar: With the enactment of the 97th amendment to the Constitution of India and its inclusion in Article 19 of the Constitution, formation of cooperative societieshas become one of the fundamental rights of an Indian citizen. Besides, they have been given the status of local self-government like rural and urban municipal bodies in Part 9 of the Constitution. Cooperative societies have thus come under the ambit of the Right to Information Act.
So, under what section of the RTI Act do co-operative societies come under?
Kumbhar: As per Section 2 (h) of the RTI Act, “public authority” means any authority or body or institution of self-government established or constituted—
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by the State Legislature;
(d) by notification issued or order made by the appropriate government, and now as per Section 2

(h) (a) of RTI Act, any cooperative society has become an ‘authority’ or ‘body’ or “institution of self-government” established or constituted by or under the Constitution and hence it comes  under the ambit of the RTI Act.
Could you elaborate on how co-operative societies came to be included in Article 19 of the 97^th Amendment of the Constitution of India?
Kumbhar: Article 19 of the Constitution of India protects certain fundamental rights of the citizens. All citizens have the right to freedom of speech and expression; to assemble peacefully and without arms; to form associations or unions; to move freely throughout the territory of India; to reside and settle in any part of the territory of India; and to practice any profession, or to carry on any occupation, trade or business. Now forming a cooperative society is also a fundamental right. (Moreover, as per Article 43B of Part IV it is now the duty of the states to promote voluntary formation, autonomous functioning, democratic control and professional management of cooperative societies to encourage economic activities of cooperatives which in turn would facilitate progress of rural India.)
Part IX of the Constitution comprise local self-governments; Part IX pertains to Panchayats; Part IX B is about municipalities and now with the insertion of Part IX C, co-operative societies have acquired the status of local self-governments. Correspondingly, cooperative societies have come under the RTI Act.
What are the institutions that come under the co-operative societies?
Kumbhar: Cooperative societies normally include co-operative banks, credit societies, sugar factories, handloom-power loom factories, distilleries, milk producing societies, water supply societies and so on. Henceforth, all such institutions will have to appoint Public Information Officers, Appellate Authorities and comply with all the provisions of the RTI Act. This is the most revolutionary event in the history of our country in the recent past.
So, weren’t co-operative societies accountable to the government and people before the 97^th Amendment? What has changed?
Kumbhar: Normally there are three sectors of industries; public, private and cooperative. The first one is wholly owned by a state or the central government and the governments have complete control over its investments and management and it is accountable to the governments as well as to the public. Although the private sector abides by the laws, rules and regulations of the governments it is not answerable or accountable to the governments or the public for the losses/profits or management. It is accountable only to its owners or shareholders as per the law of the land. The cooperative sector was a blend of the public and private sectors. So far, it was enjoying the facilities available to the public sector such as loans, share capital from the state, etc but was not accountable to the state or the public. With the Part IX inclusion in the 97th amendment, the scenario has changed and the cooperative sector is now accountable to the state and the public.
Why is it that so far there was no clarity about the applicability of the RTI Act to cooperative societies?
Kumbhar: Several information commissions and courts had given contradictory verdicts on this matter. Cooperative societies were out of the ambit of the RTI Act because it was not an ‘authority’ or ‘body’ or an ‘institution’ of self-government established or constituted by or under the Constitution. Hence, attempts to bring a cooperative society under the RTI Act, claiming it to be an ‘institute’, a “body owned, controlled or substantially financed by notification issued or order made by the appropriate government” failed. In addition, authorities of these institutes always took the stand that they did not come under the RTI act. Now, they cannot escape as it has become the fundamental right of a citizen.
What about the fact that some experts say that the RTI Act for co-operativesocieties applies only to those that are established after the Constitutionalamendment in Article 19 and Part 9?
Kumbhar: This is just an eye-wash because this is not a new Co-operative Act that has been implemented but an amendment to the Act as per the amendment to the Constitution of India which already exists. Hence, every co-operative society no matter how old or new comes under the RTI Act.
What about the fact that there are some Supreme Court and high court judgments which have ruled that co-operative societies do not come under the RTI Act?
Kumbhar: Constitution of India is over and above any high court or Supreme Court judgment so now with the constitutional amendments, these judgments are irrelevant.
What would be the impact of co-operative societies coming under the RTI Act, particularly in Maharashtra?
Kumbhar: In reality, considerable part of the country’s economy is occupied by the cooperative sector. It is said that about 1/6th of Maharashtra’s economy comprises co-operative societies. A major part of Maharashtra politics is also influenced by the cooperative sector. The scale of illegalities, scams and corruption in this sector is also high. The cooperative sector including co-operative banks and credit co-operative societiesblock substantial government funds running into hundreds of crores. As of 2012, the unaccounted for amount is close to Rs15,000 crore.
The statistics of the department of cooperative societies of Maharashtra in 2009-10 show that there were 2,18,320 cooperative societies in Maharashtra and the total membership of these societies was 5.52 crore. One estimate of the number of societies is at about 2,30,000 with a membership of about 6.5 crore. For the entire country, this number could go up to 6.5 lakh societies with 30 crore members.
A giant sector such as this was uncontrolled and unaccountable till now. One can hope that this sector will move in a positive direction after the 97th amendment to the constitution.
So, has this amendment already been enacted?
Kumbhar:  After the amendment was enacted in 2012, a period of one year was given to the states to amend as well as repeal existing provisions of law to bring in line with the new provisions in the Constitution. Usually, state assemblies approve such amendment. However, as the assembly was not in session, the Government of Maharashtra introduced an ordinance on 15 February 2013 and thus these amendments have now become law.
What are the highlights of Maharashtra Co-operative Societies Act after the amendments?
Kumbhar: The highlights of the Maharashtra Cooperative Societies Act and Rules after amendments are:
(i)                      Incorporation of cooperative societies on the principles of voluntary formation, democratic member control, member economic participation and autonomous functions;
(ii)                    Conduct of election of a cooperative society by an independent electoral authority;
(iii)                  A fixed term of five years for the office bearers of the cooperative society;
(iv)                Supersession of the board of a cooperative society for a period of not exceeding six months;
(v)                    Independent professional audit of the cooperative societies;
(vi)                  Convening of the general body meeting of every cooperative society within a period of six months of the close of the financial year;
(vii)                Access to every member of the society to the books, information and the accounts of the cooperative society;
(viii)              Filing of the returns by every cooperative society within six months of the close of every financial year;
(ix)                  Free, fair, impartial and timely elections of cooperative societies by independent body;
(x)                    Audit of the cooperative societies to be carried by the auditors from the government approved panel of auditors or firms;
(xi)                  Maximum number of 21 directors to be applicable to all cooperative societies irrespective of their size with two seats reserved for women; and
(xii)                Co-opted members not to be eligible to be elected as office-bearers of the board.
Also there are provisions of penalty for consistent defaults, acting against the interest of the institution, deadlock in the board of directors, not ordering elections within specified time, corruption, irregularities in duty, deliberately giving false information, disobeying orders of authorities, etc.
Is Article 19 of the 97^th Amendment to the Constitution similar to the 74^thAmendment which gave status of local government to Panchayats/municipalities/municipal corporations?
Kumbhar: Before 1992, panchayats and municipalities were also not bodies established by or under the Constitution. However, that did not mean that there were no panchayats or municipalities. However, due to their autonomous status, their functioning was arbitrary. They did not acquire the status and dignity of viable and responsive people’s bodies due to varied reasons including   absence of regular elections, prolonged supersession, insufficient representation of the weaker sections, etc.
Hence, to give certainty, continuity, and strength to Panchayat Raj with 73^rd amendment, Part IX was inserted in the Constitution. Later as Urban Local Bodies were not able to perform effectively as vibrant democratic units of self-government, with the 74thAmendment, Part IX B was inserted to give municipalities a status. Now with the 97th Amendment, Part IX B has been inserted to give cooperative societies a status of local self-government.
(Vinita Deshmukh is the consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet – The Inspiring Story of A Braveheart – Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.)

 

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Pune University defies SC order by not showing answer sheets; RTI activist slams legal notice

 

Moneylife, VINITA DESHMUKH | 03/04/2013

Although Supreme Court in its verdict in August 2011 ordered that certified copies of answer sheets is public information under the RTI Act, the Pune University continues to adhere by its 2008 circular which defies the spirit ofthe order and therefore amounts to contempt of court

The Ordinance number182 of the University of Pune implemented through a circularissued in 2008 puts stringent terms and conditions in providing answer sheets to a student, which are contrary to the provisions in the Right to Information (RTI) Act. These include: not providing certified copies of answer sheets; students to apply for answer sheets within 10 days of the results; applicant to apply for Photostat copies of maximum three subjects only and; copies to be provided within 45 days through the principal of the college.
In August 2011, the Supreme Court has ruled that evaluated answer sheets are covered under the definition of ‘information’ under the RTI Act. Hence, this overrides any rule or ordinance that an educational institution may have had. (Read—Ultimate victory for students: Supreme Court judgment orders access of copies of answer sheets of all examinations. Like the Official Secrecy Act of 1923, which has been overpowered by the RTI Act, the Ordinance no. 182 of the University of Pune too is as good as non-existent and it is the rules under RTI that are applicable to the University. However, University of Pune continues to dictate its own terms as per its 2008 rules.
Pune-based RTI activist Vivek Velankar received several complaints from students of the University of Pune who are not being provided certified copies of answer sheets in thespirit of the RTI Act. States Velankar, “As per the RTI Act, the University of Pune cannot insist that the student can apply only within 10 days after the examination result. Since the University of Pune preserves answer sheets for a period of six months, the student has a right to apply within this period and s/he cannot be forced to apply only within 10 days as per its Ordinance. Also, the University of Pune HAS to provide certified copies ofanswer sheets and that too within the mandatory 30 days as per the RTI Act.”
Velankar has sent a legal notice last fortnight, bringing to the notice of University of Pune as to why its Ordinance No. 182 is irrelevant after the Supreme Court verdict of 2011which has made answer sheets as public information under the RTI Act. Says Velankar, “We are giving 30 days to the University of Pune to abide by the SC judgment and to scrap its 2008 Ordinance, as continuing to implement it amounts to contempt of court. If it does not do so, we will file a Public Interest Litigation (PIL).”

 

Details of legal notice sent on 16^th March are as follows: 
NOT PROVIDING CERTIFIED COPIES:
As per Point No. 19 of Ordinance of the University of Pune Rule No. 182 in respect ofanswer sheets which states as under that, “The Certified copies of revalued answer sheets are not provided.’’…above Rule No. 182 of Ordinance issued by the University of Pune is completely contrary to the provisions of the Right to Information Act and to the judgment of Supreme Court of India in the case of Central Board of Secondary Education and Anr Vs Aditya Bandopadhyay and Ors reported in Civil Appeal No. 6454 of 2011. The Supreme Court has thereby ruled that the definition of information in Section 2 (f) of the Right to Information Act, 2005, refers to any material in any form which includes records, documents, opinions, papers amongst several other enumerated items. The term ‘record’ is defined in Section 2(i) of the said Act as including any document manuscript or file amongst others.
When a candidate participates in an examination and writes his answers in an answer book and submits it to the examining body for evaluation by an examiner appointed by the examining body, the evaluated answer book becomes a record containing the ‘opinion’ of the examiner. Therefore, the evaluated answer book is also information under Right to Information Act, 2005. It is further stated that if the rules and regulations of the examining body provide for re-evaluation, inspection or disclosure of the answer books, then none of the principles of the Maharashtra State Board or other decisions following it will apply or be relevant.
“Therefore it is stated that as per the Supreme Court ruling, the word ‘evaluation’ shall mean and include the word re-evaluation and therefore the Rule No. 182 of Ordinance issued by the University of Pune is completely contrary to the ruling of the apex court and hence needs to be necessarily modified accordingly to enable students to get certified copies of their re-evaluated answer sheets. It is stated that, if the mandate of the apex court Judgment is not followed by your institution then this may amount to the contempt of the court as prescribed in the Contempt of Courts Act, 1971.”

 

APPLICATION TO BE MADE WITHIN 10 DAYS AFTER THE EXAMINATION RESULT:
“It is stated that the Rule No. 182 of the Ordinance issued by the University of Pune also states that the student has to apply for certified copies of their re-evaluatedanswer sheets within 10 days from the date of examination result. This rule is also completely contrary to the aforesaid ruling of the apex court. The Supreme Court of India in the aforesaid judgment makes it amply clear that, “the obligation under the RTI Act is to make available or give access to existing information or information which is expected to be preserved or maintained. If the rules and regulations governing the functioning of the respective public authority require preservation of the information for only a limited period, the applicant for information will be entitled to such information only if he seeks the information when it is available with the public authority. It is stated that, period of University of Pune is of six months and therefore, the student is entitled to make an application for the certified copies of the evaluated answer books within the period of six months and the mandate 10 days time limit as prescribed in Rule 182 of University of Pune Ordinance is completely contrary to the judgment of the Supreme Court of India and therefore, it is required to be modified accordingly. It is stated that, if the mandate of the apex court judgment is not followed by your institution then this may amount to the contempt of court as prescribed in the Contempt of Courts Act, 1971.”

 

REGARDING APPLICATION FOR MAXIMUM OF THREE SUBJECTS ONLY:
“It is stated that, the Point No. 2 of the said ordinance states that the applicant can apply for the Photostat copies of maximum three subjects only. This is also completely contrary to the provisions of the RTI Act, 2005, as the Act does not provide any such restriction as to how many subjects an applicant can apply for Photostat copies of the answer books. Therefore the said provision/point in your Ordinance No. 182 is also contrary to the RTI Act, 2005, and needs to be modified accordingly.”
REGARDING NOT PROVIDING ANSWER SHEETS OF PRACTICALEXAMINATIONS:
“It is also stated that, Point No 1 of Ordinance 182 provides for the photo copy/copies of assessed and/or moderated theory subject/s answer book/s of the current examinationwill be supplied to the examinee/s. The photo copy/copies of answer books of practicalexamination, sessional marks, marks of viva-voce/dissertation/ thesis/project, Common Entrance Test conducted by University, etc shall not be supplied to the examinee/s. It is stated that as mentioned above, when a candidate participates in an examination and writes his answers in an answer book and submits it to the examining body for evaluation by an examiner appointed by the examining body, the evaluated answer book becomes a record containing the ‘opinion’ of the examiner. Therefore, any evaluated answer book is also information under Right to Information Act, 2005. This makes it very clear that, any evaluation done by the University is also information under RTI Act, 2005 and therefore, the photo copy/copies of answer books of practical examination, sessional marks, marks of viva-voce/dissertation/ thesis/ project, Common Entrance Test conducted by University are also covered under the provisions of the RTI Act, 2005. Point No. 1 is completely contrary to the provisions of RTI Act, 2005 and aforesaid judgment of the Supreme Court of India.”
REGARDING PROVIDING INFORMATION WITHIN 45 DAYS OF RECEIVING THE REQUEST:
It is also stated that, Point No. 16 of aforesaid Ordinance 182 states that, “the University shall supply the photo copy/copies within 45 days from the date of receipt of application through the principal of the college concerned”. It is stated that, the aforesaid point of the ordinance is directly and completely contrary to the provisions of Section 7 of the Right to Information Act, 2005, which states that 7. Disposal of request—(/) subject to the proviso to sub-section (2) of Section 5 or the proviso to sub-section (3) of Section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under Section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request. either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in Sections 8 and 9: 6 This provision mandates the information which is sought has to be provided to the applicant within the maximum period of thirty day and no further extension is allowed by the provisions of the Section 7 of RTI Act, 2005. Therefore, the time period of 45 days is completely and directly contrary to the provisions of RTI Act, 2005, and needs to modify accordingly.
REGARDING UNIVERSITY OF PUNE WRONGLY ABIDING BY ITS OWN ORDINANCE
It is also stated that the RTI Act, 2005, is a central enactment and has to be followed in its true spirit and any provision/ rules made by any public authority contrary to the provisions of the RTI Act, 2005, shall attract the provisions of the Section 22 which reads thus “Act to have overriding effect—the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 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”.
(Vinita Deshmukh is the consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet – The Inspiring Story of A Braveheart – Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.

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Information that cannot be denied to Parliament cannot be denied to you and me… but does it happen? #RTI

 

VINITA DESHMUKH | 31/01/2013 12:15 PM |  , Moneylife.com

Does this provision in Section 8 wherein, despite exemptions you have the right to information if it is of larger public interest being correctly interpreted by Courts? A study thinks otherwise

Notwithstanding Section 8 of the Right to Information (RTI) Act under which you are denied the right to certain information, there is a provision which states that, every citizen has the right to get that information which our elected representatives, have access to. It reads thus, “Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”

 

However, it has been observed in an expert study, conducted by the Commonwealth Human Rights Initiative (CHRI) that the judiciary has been inconsistent in application of this provision and therefore “does not provide clarity of interpretation of this crucial provision of the RTI Act.’’

 

Sometimes, the judiciary applies it to the entire Section 8 (1) which should be the case according to the CHRI’s analysis but many a time in its judgment, the judiciary restricts this provision only to Section 8 (1)(j) which relates to protection of personal information. Such varied interpretation which is diluting the power of this provision says the study, would have adverse repercussions for citizens, if this trend continues in the court of law.

 

Interestingly, even the Department of Personnel and Training (DoPT), Government of India in its guidelines to public authorities, Public Information Officers (PIOs) and First Appellate Authorities (FAAs) at the Central and State level for implementing the RTI Act, directed them to follow this provision by stating that:  “The Act gives the citizens a right to information at par with the Members of Parliament (MPs) and the Members of the State Legislatures (MLAs). According to the Act, information which cannot be denied to Parliament or a State Legislature shall not be denied to any person.’’

 

However, many PIOs and FAAs continue to decline information and the matter goes to information commissioners who often order disclosure of information. However, petitioners seek legal intervention and it is here that the provision is not used in its true spirit, as per the study.

 

Venkatesh Nayak, Programme Coordinator, Access to Information programme, Commonwealth Human Rights Imitative (CHRI) conducted the study to highlight how the provision is being narrowly used. States Nayak, “In 18 judgments interpreting the provision, this is far from convincing. We have chosen one such issue for analysis where despite the existence of more than 15 judgments, the jurisprudence does not provide clarity of interpretation of this crucial provision of the RTI Act.  Settlement of access disputes in the High Courts has not always conformed to the doctrine of precedent.”

 

Nayak observes that, “Eight High Courts have interpreted the scope and application of the proviso under Section 8(1) varyingly. Starting with the Bombay High Court, in 2007, five High Courts (Bombay, Delhi, Madhya Pradesh, Madras and Patna) have interpreted this proviso in six cases as being applicable only to clause (j) of Section 8(1), namely, the exemption protecting personal information of an individual from disclosure. Three High Courts (Calcutta, Kerala and Punjab and Haryana) have in ten cases interpreted this proviso as applying to all exemption clauses listed in Section 8(1). In at least two High Courts (Bombay and Delhi) single‐judge and Division Benches have held contrary views indicating the lack of crystallisation of judicial precedent, regarding the interpretation of the scope and application of this proviso.’’

 

Section 8 (of the RTI Act) deals with exemptions to the right to information.  Nayak points out that:

•  Sub‐Section (1) lists out the specific exemptions to disclosure –namely, information that an applicant may not claim as a matter of right

•  Sub‐Section (2) provides for the disclosure of even exempt information when public interest in disclosure outweighs the harm to the protected interests.

• Sub‐Section (3) limits the operation of seven out of the ten exemptions up to 20 years for a given set of records. The exemptions relating to national security, foreign relations with foreign Governments, Parliamentary and Legislative privilege and Cabinet documents apply for an indefinite period of time.

•  A proviso is inscribed at the bottom of Section 8(1) which states that… Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”

 

The study highlights several judgments which have interpreted Section 8 (1) in different modes. In most of these cases, the High Courts have upheld the orders of information commissioners but the judgment is not based on a comprehensive look at this provision.  This study aims to provide insight into this discrepancy. Concludes Nayak, “We hope that in an appropriate case the true meaning of the proviso underlying Section 8(1) is interpreted by the courts with due regard to legislative intent and the drafting history of the RTI Act.’’

 

Following are a few examples:

 

Case 1: A member of the Legislative Assembly (MLA) was sentenced to a month’s imprisonment for committing contempt of Supreme Court’s orders during his tenure as Minister in the Government of Maharashtra. He spent 21 days of his jail term in a hospital in Mumbai under the pretext of being treated for various illnesses.

 

A citizen sought medical reports of his treatment, under RTI, in order to ascertain why the MLA had spent most of the duration of his sentence in an air‐conditioned hospital. The Petitioner objected to the disclosure of his medical records claiming that such action would cause invasion of his right to privacy. The matter escalated to the State Information Commission which ordered disclosure in the larger public interest.

 

The Petitioner (the MLA) challenged the order of disclosure on various grounds includingthe right to privacy and the requirement of confidentiality of patient‐related information under the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002.

 

A two‐judge Bench of the Bombay High Court upheld the order of disclosure of the Petitioner’s medical records in the larger public interest. (Mr Surupsingh Hrya Naik v/s State of Maharashtra Through Additional Secretary, General Administration Deptt. And Others, Bombay High Court [Writ Petition No. 1750 of 2007] decision date: 23/03/2007)

 

CHRI’s analysis: “The Court relied upon the judgement of a single‐judge Bench in an earlier dispute relating to access to information under the Goa Right to Information Act, 1997 (Goa RTI Act) to hold that the proviso underlying Section 8(1) applied only to clause (j)… The main cause in the Surupsingh Naik case was about an individual’s right to privacy in relation to his medical records. In our opinion inquiring into Parliament’s intent behind placing the proviso under Section 8(1) in the light of the Court’s earlier pronouncement was necessary before determining its scope and application. Instead the ratio of the Court in the Panaji Municipal Council case was applied mechanically without regard to the reasoning that informed it. In view of this glaring contradiction the Court’s reading of the import and application of the proviso underlying Section 8(1)(j) of the RTI Act, deserves to be reviewed.’’

 

Case 2: An Applicant sought information about the appointment, posting, transfer and promotion of clerical staff employed by the Canara Bank (the Bank) in Ernakulam district of Kerala during the period 2002‐2006. The Bank denied access on various grounds. When the matter escalated to the Central Information Commission (CIC), it ordered that the information be disclosed. The Bank challenged this order before the Kerala High Court claiming the protection of Section 8(1)(e)‐ when information is available to a person in his fiduciary relationship‐ and Section 8(1)(j)‐ when disclosure of personal information has no relationship to any public activity or interest or if disclosure would cause unwarranted invasion of the privacy of the individual. A single‐judge Bench of the Court rejected both contentions and upheld the order of the Central Information Commission. (Canara Bank vs the Central Information Commissioner and Another, Kerala High Court [Writ Petition (Civil) 9988 of 2007, decision date: 11/07/2007]7 2.1)

 

CHRI’s analysis: The Court independently held that the proviso applied to the whole of Section 8(1) and not merely to clause (j) of that Section. More importantly, the proviso to the section qualifies the section by stating that information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

 

Case 3: A student sought access to his answer sheets in a Bachelor’s Degree examination conducted by the University of Calcutta. The PIO rejected the request without invoking any of the exemptions provided in Section 8 of the RTI Act. He merely stated, in an undated letter, that the University had taken a decision not to permit inspection of evaluated answer scripts under the RTI Act.

 

The matter escalated to the High Court where the University cited a decision of the CIC which had ruled in an earlier case that where Boards and Universities conducting public examinations had evolved a robust system of evaluation and, if, by their own rules, prohibited disclosure of evaluated answer‐sheets or where such disclosure would result in rendering the system unworkable in practice, a citizen could not seek disclosure of the answer‐sheets. The University also contended that answer scripts did not fall within the definition of information under Section 2(f) of the RTI Act and that disclosure of the evaluated answer scripts would endanger the lives of the examiners. The University contended further that the Supreme Court had in earlier decisions refused to order disclosure of such documents, so Section 8(1)(b) of the RTI Act would apply. A single‐judge Bench of the Court rejected these contentions in a well reasoned judgement and ordered the evaluated answer sheets to be disclosed. (Pritam Rooj vs University of Calcutta, Calcutta High Court [Writ Petition No. 22176 of 2007], decision date: 28/03/2008.)

 

CHRI’s Analysis: …The Court also took notice of the need for protecting the privacy of individuals. However the Court held that the proviso underlying Section 8(1) applied to the whole of that Section…The proviso at the foot of Clause (j) appears to cover the entirety of Section 8(1), notwithstanding the view taken by the Division Bench of the Bombay High Court. The manner in which the exceptions to the rule have been carved out in Section 8 and the proviso which appears to govern all the cases covered by Section 8(1) of the said Act, makes the exemption section exhaustive. [emphasis supplied]…That the Court rejected the finding of a larger Bench of another High Court without supplying a reasoned justification is problematic, particularly when both parties had used the ratio to support their contention..

 

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Are information commissioners killing the RTI Act?

 

VINITA DESHMUKH | 09/01/2013 Moneylife 

Information commissions are increasingly being lenient in penalising Public Information Officers (PIOs) for not providing information that they should, or being absent at hearings at the information commission. If so, are the information commissioners making PIOs and Appellate Authorities unaccountable?

Pune-based RTI (Right to Information) activist Vijay Kumbhar has triggered off a controversy through his column in the Marathi daily Pudhari that despite information commissioners being empowered to penalise Public Information Officers (PIOs), they do not do so even if they do not provide information to the applicant or remain absent for hearing at the information commission. Kumbhar states, “information commissioners are responsible for the worrying trend of government employees not being serious about the RTI anymore as they are often not held accountable.”

 

He cites two recent decisions of State Information Commissioners in Maharashtra on New Year’s Day, as examples. In the first decision, the applicant who had filed a RTI in July 2011 did not get the required reply and the First Appellate Authority (FAA) did not bother to conduct any hearing. This compelled the applicant to file second appeal with the information commission.

 

However, when the matter was heard at the state information commission, the commissioner merely ordered that information be given within a specific period by the PIO but he did not levy any penalty on the PIO or question the absence of both the PIO and FAA. Says Kumbhar, “in this case, the PIO or FAA did not bother about the RTIapplication or appeal filed before them. They even did not have the courtesy to attend the hearing of an appeal before the information commission. But the Commission in its order has not dealt with some basic questions like, what was the information the applicant had sought for? What were the reasons behind not furnishing the information by the PIO? Why didn’t the appellate authority conduct hearing on the first appeal? Why was the PIO and the appellate authority not present for the hearing before the information commission?” The least the information commissioner could have done, says Kumbhar is to issue a show-cause notice as to why they remained absent.

 

In the second case, says Kumbhar, the applicant did not receive the information that he had asked for from the PIO but the FAA dismissed his appeal by stating that the required information was provided to him by the PIO and that too,10 months after the applicant had filed his first appeal. During the second appeal hearing, the information commissioner did not go into details as to what information was asked for by the applicant? In such a case, the information commissioner has the power to impose fine on the PIO and reprimand the FAA for conducting the hearing after 10 long months but they were not pulled up. If the information commissioners are so lenient, then why should PIOs bother about applications they receive under RTI?

 

So, are information commissioners advertently or inadvertently killing the power of the RTI Act? Moneylife asked a cross-section of RTI activists:

 

RTI activist Maj Gen SCN Jatar (retd)

Information Commissioners cannot afford to be lax:  Kumbhar’s observations set out in reality how RTI commissioners are set to kill RTI. They do not realise that such decisions are taken as examples of superficiality and laxity in penalising errant PIOs. PIOs are apt to then follow the same methods again and again. The basic criteria that should govern good judgments are a) They should be well-reasoned so that these can be cited in future judgments and ii) they should give a clear message to the errant PIOs that avoiding or evading giving information, which should be in public domain, will not be tolerated. The two cases quoted by Kumbhar do not meet both the above criteria.

 

Former Central Information Commissioner and RTI activist Shailesh Gandhi

Faster disposal of cases and reasonable threat of penalty required:  Most Information Commissioners use the penalty provision as if it was a death penalty to be imposed in the rarest of cases. I do not see any problem with who attends the hearing. The Commissioners should give orders for information irrespective of whether the PIO attends or not. The hearing is an opportunity to present one’s views or argue on required matters. If the appellant or PIO does not attend, they may not want the opportunity of hearing. To believe that when either side is not present, a Commissioner must rule in favour of one who is present does not appear correct or desirable.

 

I had levied 521 penalties totalling Rs.92 lakh in the 20,400 cases which I decided in three years and nine months.  The rest of the Central Information Commissioners collectively imposed penalties in about 330 cases in the Commission and had decided about 80,000 cases. There is no doubt that there is a link of penalty imposition with compliance of the law. If cases are decided fast, and there is a fear of penalties, the PIOs and First appellate authorities become more alert and try to meet the requirements of the law. The total cases received by the Central Commission rose by about 50% in a two year period from 2009 to 2011. The cases for Municipal Corporation of Delhi—which I handled throughout my tenure rose by only 15%. This indicates that faster disposal and a reasonable threat of penalties would get better compliance of the law.

 

RTI activist Subhash Chandra Agrawal

Each order of Information commission should be comprehensive: It is usually observed that generally penalties are not imposed by Information Commissioners thereby making Public Information Officers (PIOs) lethargic towards complying with provisions of the RTI Act. There should be a practice whereby each order of Information Commissions may carry all the relevant dates like filing a RTI petition, reply of PIO, filing first appeal and of appeal-order. There should be auto-calculation of penalty in each verdict of Information Commissions making penal-provisions under Section 20 of the RTI Act mandatory rather than discretionary as at present. Reasons for waiving or reducing applicable penalty should be specifically mentioned in verdicts of Information Commissions. Information Commissions should maintain record of penalties imposed. Non-payment of penalties in specified time should be reported once in a month to Cabinet Secretary/Chief Secretary who should be duty-bound to initiate disciplinary action against defaulting officers apart from taking steps to recover penalty-amounts from salary/pension payable.

 

RTI activist Commodore Lokesh Batra (retd)

Applicants should be innovative, interactive with PIOs:  Every applicant must realise that it is only after the RTI Act that citizens have become participative in governance. RTI has given us a chance to be an integral part of public accountability so we should not take an adverse stance against PIOs as far as possible. Every RTI applicant should make untiring efforts not to take the case up to the Information commission level as he or she would face inordinate delays, even up to two years. I use innovative methods to interact with the PIOs to extract information in case they hesitate to provide it. Today, I have developed good relations with many public authorities and they sometimes call me for suggestions or advice. Also, after the 2G scam it has been observed that every single reply under RTI at least in the Prime Minister’s Office (PMO) goes to the top bureaucrat so what is the use of blaming or penalising PIOs who are at the mercy of their bosses? Also, in the information commissions, it is the bureaucrats who create more hurdles than the information commissioners themselves.

 

Researcher and RTI activist Venkatesh Nayak

Public Authorities should take implementation of RTI Act seriously: I agree that to make government employees take RTI seriously PIOs should be penalised but that is just one of the solutions. Penalty cannot be the only deterrent as much as vigilance by higher authorities can be. It is the responsibility of public authorities to clearly push for policy of transparency and that should be visible in action and not by merely issuing paper orders. Serious implementation of RTI cannot be only a PIO’s headache. The top brass of every public authority should regularly monitor and be vigilant about transparency. Mechanisms to check it should work efficiently and should be given top priority. Targets should be set for accountability. Every office has a Monthly Monitoring Report (MMR). It is also called the Monthly Progressive Implementation Calendar in Karnataka. It requires reporting physical and financial progress to superiors who in turn give guidance on the basis of the report. There should also be scrutiny at the highest level, which is legislature. Such professional monitoring has not been seen for RTI. It is only when the government employees know that someone is seriously watching over them, that everyone down the line will take RTI seriously. Perhaps some incentives like increased funding or an award to the Public Authority which implements RTI diligently could help.

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• Awareness of RTI Act not adequate, says SIC chief (thehindu.com)
• Exclusive and Explosive : Public safety info not for public: DAE (kractivist.wordpress.com)

 

‘Substantially’ funded NGOs to make info public under RTI Act

Ashwani Sharma : Shimla, IE, Sat Dec 08 2012,

In a landmark judgement having wider implications on government-funded NGOs and organisations run on public contributions, the State Information Commission (SIC) on Friday ruled that all “substantially” financed NGOs (receiving over Rs 1 crore from state or government grants) are public authority under the Right to Information (RTI) Act and must make their annual ‘income and expenditures’ public.

In the Commission’s order, passed by a two-member bench of Chief Information Commissioner Bhim Sen and Information Commissioner K D Batish, Himachal Pradesh Voluntary Health Association (HPVHA) was declared a public authority under RTI and directed to appoint its public information officer (PIO) within 10 days.

“As per the provisions of the Comptroller and Auditor General (CAG) Act 1971, HPVHA is a public authority under the RTI Act as it is being substantially financed by the government and is eligible for audit by the CAG. The association is directed to designate an official as the PIO within 10 days from the receipt of the order”, said the order.

The order was passed in a complaint by one Deepak Sharma, who was denied information by HPVHA as it asserted it was not covered under the RTI Act. The Commission analysed the funding details of the the organization, which was over Rs 1.22 crore during 2008-2009. It claimed that the organisation had been getting substantial aid from the state government and thus cannot be granted exemptions from RTI.

In its order, the commission also stated that in cases where the state gives not so substantial grants (Rs 25 lakh or less) to NGOs, the state or a government agency will be appointed as public authority, which will be required to provide information.

It also added that NGOs that have been raising funds from public contributions should voluntarily place maximum information regarding its activities on the web, which should include its Constitution, bylaws, rules and regulations, its annual income and expenditure and nature of works undertaken or completed.

“If an NGO is not substantially financed by the government and also raises funds by collections from public contribution and it performs functions of a public nature that are ordinarily performed by the government or its agency, it is desirable that the NGO voluntarily place maximum information regarding its activities on its website,” the order said.

The HPHVA has to provide the details within a month.

 

Bombay HC- Personal info can’t be disclosed under RTI #Privacy

Vaibhav Ganjapure, TNN | Nov 9, 2012, 01.31AM IST

NAGPUR: Giving privilege to the right to privacy, the Nagpur bench of Bombay High Court ruled that personal information, which serves no public interest, can’t be disclosed under the Right to Information (RTI) Act, 2005.

Allowing the writ petition (WP NO. 2157/2012) filed by Maharashtra State Electricity Transmission Company (Mahatransco) Limited, which challenged the order of state information commissioner, Justice Vasanati Naik held that such non-disclosure of personal information is protected by the exception provided in one of the provisions of the RTI Act itself.

In the given case, respondent Sureshkumar Patil, a resident of Hingna Road, had sought personal information of ten employees working in Mahatransco through an application dated June 6, 2011. He demanded confidential documents like annual performance appraisal and job description of these employees.

Patil had also asked for the documents relating to the job description of certain officers and the attested copies of representation for the upgradation of annual confidential reports of the employees.

The second respondent – state information commissioner’s Nagpur bench in Civil lines – had partly allowed the appeal on December 20 last year and asked the petitioners to disclose the information sought by Patil.

The high court held that such disclosure is unwarranted. Referring to section 8(1)(j) of the RTI Act, the court observed that disclosure of personal information, which has no relation with the larger public interest, causes unnecessary intrusion in the individual’s private realm. “Unless the central or the state information commissioner finds that such disclosure is justified for larger public interest, no personal information must be supplied with,” the court stated.

It also relied on an unreported apex court judgment of this year, which held that every individual is entitled to right to privacy and any such disclosure without reasonable grounds of public interest, violates the right of the individual.
Accordingly, Justice Naik quashed and set aside the December 20 order of the state information commission while allowing prayers of the petitioner – public information officer and general manager Madhao Pendor of Mahatransco. DM Kale was the counsel for Mahatransco, while SB Wahane and AB Patil represented the first and second respondents respectively.
(With inputs from Lakshmi Dwivedi)

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#India- Government withdraws RTI Act amendments #goodnews

New Delhi,Politics,Immigration/Law/Rights, Thu, 01 Nov 2012IANS

New Delhi, Nov 1 (IANS) Under pressure from UPA chairperson Sonia Gandhi, the Manmohan Singh government Thursday withdrew the controversial amendments aimed at diluting the Right to Information (RTI) Act.

“The cabinet decided to withdraw the amendments to the RTI Act,” a government source told IANS after a cabinet meeting chaired by Prime Minister Manmohan Singh.

The campaign against the amendments was led by activist Aruna Roy, a member of the Sonia Gandhi-led National Advisory Council.
The withdrawal of amendments would mean it would be possible for the citizens to ask for information related to file notings, except on issues about national security, privacy and protection of commercial interest. The amendments had sought to restrict disclosure of file notings only to social and developmental issues.

“It is an important decision. The amendments would have killed the RTI Act and there would have been no transparency in governance,” Nikhil Dey, who works closely with Aruna Roy on the RTI Act, told IANS.

Roy even met Gandhi on the government’s plans to dilute the act. Chief Information Commissioner Satyanand Mishra was also not in favour of the amendments, said sources.

The RTI Act was introduced during the previous UPA government to bring more transparency in governance and fight corruption.

File an RTI application in 5 simple steps

 

 
It has been 65 years since we gained independence. But it was only seven years ago that we gained the right to information. The passage of the RTI Act in 2005 has resulted in many social changes. We have read about activists using the RTI.

But did you know that even you could file an RTI application?

That’s what nine-year-old Aishwarya Parashar did. This little girl from Lucknow has filed three RTIs with the Prime Minister’s Office.
Her efforts have resulted in the removal of a garbage dump near her school. Don’t you want to be a change-maker too?

File an RTI application in 5 simple steps:

1. Identify the department/subject of your query. Is it a state or a central subject? Keep in mind that different rules apply even though
they fall under the same Act.

2. Do a little background research. Find out what information falls under the purview of the department concerned.

3. Phrase your questions wisely and precisely. Ask for a copy of the documents. Fill up the RTI application form (application form given).

4. Attach court fee stamp or Indian Postal Order of worth Rs 10 with the application and keep a copy of it with you for future reference.

5. Post your application or hand it over personally to the ‘TAPAL” also called as Inward/Outward section of the respective department.

Find out more about RTI at http://rti.gov.in/

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PPPs also come within the ambit of ‘public authorities’ as defined in the RTI Act

PPPs envisage a certain degree of government control in their functioning so that the decisions taken are in accordance with the objectives for which the partnership was set up. Therefore PPPs also come within the ambit of ‘public authorities’ as defined in the RTI Act enabling citizens to know or obtain information about them, the CIC said

Chief Information Commissioner (CIC) Shailesh Gandhi said citizens have a right to know about PPPs (public-private partnerships), which directly or indirectly envisage a partnership with public funds. He also ruled that any entity which has received finance or grant of over Rs1 crore from the government would constitute ‘substantial financing’ rendering such entity a public authority under the RTI Act.

In an order issued on 14th February, the CIC said, “At present, most PPPs do not even accept the applicability of the RTI Act to them and wait for the issue to be adjudicated upon at the commission’s level. For this some citizen has to pursue this matter. Such practices are required to be brought to a minimum and PPPs must comply with the provisions of the RTI Act.”

The Public Health Foundation of India (PHFI), a ‘public-private partnership’ (PPP) that was not ready to submit itself to the RTI Act, 2005, has now finally surrendered and is to be brought under the Act. This follows the decision given by Chief Information Commissioner (CIC), Shailesh Gandhi, where he asked PHFI to appoint a public information officer (PIO) and First Appellate Authority (FAA) under the RTI Act by 15 March 2012.

According to Kapil Bajaj, who represented Kishan Lal, the petitioner, during the hearing, PHFI has no other option but to comply with the provision of the RTI Act. “PHFI has not suddenly realised after being taken to the Information commission that it would like to ‘voluntarily’ submit itself to the law but because it has been clearly shown to be a public authority under Section 2(h),” he said.

Mr Gandhi also asked the Health Foundation to pay a compensation of Rs3,000 to Mumbai-based activist Kishan Lal. Last year, Mr Lal filed an application under the RTI Act, seeking information about PHFI. However, PHFI said that it is an autonomous body duly registered under the provisions of the Societies Registration Act of 1860 and as a PPP it is not a ‘public authority’ as defined under the RTI Act, 2005. The Health Foundation further stated that as it is a completely autonomous institution, is not covered under the provisions of the said Act.

During the hearing, the CIC found out that one-sixth of the 30 members of the governing board of PHFI are public servants or senior official from the Union government. PHFI, however, claimed that most of the government officials on its board are occupying the positions in their ‘personal capacity’.

Terming the claim of PHFI as ‘untenable’, Mr Gandhi, in his order said, “It is difficult to assume that senior public servants can be on the board of an organisation like PHFI-which has numerous interactions with the government, in private capacity. In fact, this would necessarily imply a conflict of interest. The commission can only assume that such public servants must necessarily be acting on behalf of the government-when they are required to take executive decisions as members of the board-in a public-private partnership such as PHFI. Any other conclusion would be an improper slur on their integrity. It is not possible that India’s leading public servants could be acting in any manner, but as representatives of the government when they are on the board of PHFI. It is also true that significant funding is provided by the government to PHFI. Hence, it is presumed that the five officials on the board of PHFI are discharging their duties as public servants.”

During the hearing, Mr Lal placed before the CIC, a report submitted to the Rajya Sabha in 2007 by the Department-Related Parliamentary Standing Committee on Health and Family Welfare. The report stated, “The Government of India is contributing Rs65 crore, approximately one-third of the initial seed capital required for kick-starting the PHFI and for establishment of two schools of public health. The remaining amount (approximately Rs135 crore) is being raised from outside the government, namely, Melinda & Bill Gates Foundation (Rs65 crore) and from high net-worth individuals. PHFI is managed by an independent governing board that includes three members from the ministry of health and family welfare viz. secretary (H&FW); DG ICMR and DGHS. Mr TKA Nair principal secretary to the prime minister, Dr MS Ahluwalia, vice-chairman, Planning Commission; Sujata Rao, AS&PD, NACO, ministry of health; Dr Mashelkar, DG CSIR are also members of the governing board. The presence of the officials from the government would ensure that the decisions taken by PHFI are in consonance with the objectives for which PHFI has been supported by the Government of India. It is expected that all members of the governing board would ensure the functioning of the foundation as a professional organization and with complete transparency.”

The CIC observed that the Parliamentary Standing Committee also assumed that the vice-chairman of the Planning Commission, principal secretary to the prime minister and other public servants were ensuring that decisions of PHFI were in consonance with the government’s objectives and complete transparency. “PHFI’s refusal to accept its coverage by the RTI Act seems at variance with this,” he noted.

PHFI admitted that it was set up in 2006 with an initial fund corpus of Rs200 crore (at present Rs219 crore), out of which Rs65 crore were provided as grant by the ministry of health and family welfare (MH&FW). The CIC noted that the funding of about 30% from the government cannot be considered as insubstantial. “…a grant of Rs65 crore given by the government from its corpus of public funds cannot be considered as insignificant and would render PHFI as being ‘substantially financed’ byfunds from the government,” he said in the order.

Commenting that citizens have a right to know about the manner, extent and purpose for which public funds are being deployed by the government, Mr Gandhi, said, “…not every financing of an entity in the form of a grant by the government would qualify as ‘substantial’, but certainly a grant of over Rs1 crore would constitute ‘substantial financing’ rendering such entity a public authority under the RTI Act.”

In another significant ruling, the CIC said that PPPs, by their very nature, stipulate certain contributions by the government such as giving land at a concessional rate, grants and monopoly rights. In cases such as grants, direct funding by the government can be easily calculated. In cases such as giving monopoly rights or land at a concessional rate, value(s) must be attached and the same would tantamount to indirect financing by the government. In other words, PPPs envisage a partnership with publicfunds-directly or indirectly- and therefore citizens have a right to know about the same, Mr Gandhi said.

Being a public-private partnership, PHFI has received a substantial grant of Rs65 crore from the government initially. Further, PHFI has been receiving free land and handsome financial grants from state governments for setting up ‘Indian Institutes of Public Health’ (IIPHs) as part of the public-private partnership. For instance, the Andhra Pradesh government provided PHFI with 43 acres of land in Rajendra Nagar area of Hyderabad free of cost and Rs30 crore in financial grant for setting up IIPH. The Gujarat government provided 50 acres in Gandhinagar and Rs25 crore in grant. The Orissa government provided 40 acres near Bhubaneswar and the Delhi government spent Rs13.82 crore on acquiring 51.19 acres of Gram Sabha land in Kanjhawala village for PHFI to set up IIPH.

“This ruling is another slap on the face of the central government, steeped as it is corruption — for implementing a policy (PPP policy) in a manner that makes a mockery of the principle of transparency and accountability to the public enshrined in the Constitution and the Parliamentary enactment in the form of the RTI Act,” added Mr Bajaj.