#India- Political Parties afraid of #RTI


 

Let’s ask the political parties what makes them fear public scrutiny
Shailesh Gandhi

15-06-2013, Issue 24 Volume 10

Illustration: Vikram NongmaithemIllustration: Vikram Nongmaithem

The recent decision of the Central Information Commission (CIC) to bring political parties within the ambit of the Right to Information () Act is a welcome step. And there’s nothing surprising in the way the political parties have reacted to it. After all, no one in a position of power wants to be transparent. It’s almost a human tendency. In this case, the political class clearly does not know what the  is. In fact, a common user of the knows it better than them. The negative reactions of the political class stem from the typical mindset of “why should I?”

Three key questions must in turn be asked of the political parties. Firstly, are they not financed by government funds? If they are not, the CIC’s judgment is flawed. But if they are, then they must come under the RTI. The RTI Act clearly says any non-government organisation that is substantially financed by government funds is a public authority — and that includes political parties. In this judgment, the bench has clearly cited instances of the massive tax exemptions they get, the huge subsidies on the government land allotted to them and so on.

Secondly, are they are not receiving funds in crores? Isn’t that substantial? They cannot refute that it is and so they are public authorities as defined by law. If they still object, they must explain why they should not be subject to RTI.

Thirdly, do the political parties believe transparency will do them good? If they don’t, then we must ask them what harm it would do.

If you are a public authority, you come under the RTI. but the Act also provides exemptions to protect you from disclosure of certain types of information. based on these exemptions, various public authorities have now functioned for over seven years without any major damage to the institutions.

The parties ask, how can people dictate how they choose candidates. The answer is, they cannot. The information that parties do not have on record, is not information and hence does not have to be provided. but citizens have the right to ask if there is a process and what are the criteria laid down. beyond that, this law doesn’t in any way allow the citizen to “dictate” any terms. besides, the humble Indian citizen cannot dictate to the powerful, but can hope to speak the truth to power, and make them truthful.

Parties also argue that they are already monitored by the Election commission. come election time, they go and beg for votes. Are they saying they don’t want ordinary citizens to monitor them? That they are not answerable to individual citizens, and find the idea abhorrent? Let them answer that and we will know where we stand. Some political parties even declared themselves as private organisations. Do they really think they are businesses?

I think the political parties don’t really know where they might get hit. The  scam got exposed because of RTI. It’s an unknown animal, and so political parties believe it’s best to avoid it. Some of their illegal acts, their arbitrariness, may come out, hence the fear.

If you become transparent, you become better. Transparency is a tool for self-improvement and in the long-term interest of the political parties. Today, we have a trust deficit that may lessen if they become transparent. Tomorrow, if the  says they will do it, the congress will also fall in line, provided there is a national clamour.

If they choose to take the CIC order to court, it will be unfortunate and cause an indefinite delay, in case the court stays the order. One of the respondents, the Association for Democratic reforms, a civil society group, has already filed a caveat in the Delhi High Court, asking to be heard before any political party gets a stay against the CIC order.

The rhetoric on news channels has been mostly along the lines of “shouldn’t the citizens know?” That’s a side comment, but not a valid legal argument. An organisation doesn’t become a public authority on the grounds that “a citizen must know”. we have a strong case as the parties are substantially funded by the government, and are therefore public authorities as defined in the RTI Act.

As a believer in transparency, I think a ‘No RTI, No Vote’ campaign is a great idea. If we can build up a nationwide clamour for it, there is some hope that this order will be effectively implemented. That will be an extremely important step for democracy.

(As told to )

letters@tehelka.com

(Published in Tehelka Magaz

 

#Maharashtra Undertrials get #RTI Relief #goodnews #prisonerights


political-prisoner

Maharashtra CIC asks authorities to publish info of under trials who completed 50% of their maximum prison term

Thousands of under trials, who have completed 50% of their maximum prison term, would get a major relief thanks to the activism of Shailesh Gandhi, former central information commissioner

In a significant order, the Maharashtra state chief information commission (SCIC) has directed prison authorities to display details of under trials who have completed over 50% of the maximum prison term they are liable for. Shailesh Gandhi, former central information commissioner (CIC) had filed the appeal before the SCIC under the Right to Information (RTI) Act.

 

“This will facilitate the prisoners and other activists to get release of such under trials and should go a long way in giving relief to people who were denied their freedom illegally. This order will be applicable in Maharashtra and I hope RTI activists will get such orders issued in all the states,” said Mr Gandhi.

 

The SCIC passed the order in fulfilment of the Prison department’s obligation under Section 4 (1) (b) of the RTI Act. The Commissioner used his powers under Section 19 (8) of the RTI Act and has ordered that this information will have to be displayed on thewebsite and on the notice boards of the prisons before 12 May 2013.

 

Following refusal by the Public Information Officer (PIO) and First Appellate Authority (FAA) to provide information about under trials in prisons in Maharashtra without any valid reasons, Mr Gandhi had filed his second appeal before the State Chief Information Commissioner.

 

In his second appeal, Mr Gandhi had also requested the State CIC, to direct the PIO to provide the information, penalise the PIO as per provisions of the RTI Act and reprimand the FAA for a casual approach in rejecting a citizen’s fundamental right.

 

A similar query by Mr Gandhi, around six years ago had led to the release of release of some under trials by the Bombay High Court. In his additional plea before the SCIC, Mr Gandhi said, “Whereas six years back the prison authorities had provided the information without any excuses, the PIO this time directed me to approach 43 different prisons. The First Appellate Authority did a faux pas by claiming exemptions under Section 8 (1) (b), (g) (h) and (j) without even attempting to justify how these would apply. I am sorry, but it appears that in the prison department in Maharashtra there is an unfortunate carelessness and regression in adherence and respect for RTI.”

 

Earlier in February, the union home ministry told states and Union Territories that under Section 436A of Criminal Procedure Code (CrPC), an under trial prisoner completing half of the maximum period of imprisonment should be released by the court on his personal bond with or without sureties, with the exception of those involved in heinous crimes.

 

According to statistics provided by National Crime Records Bureau, as of December 2011, there were 2.41 lakh or 64.7% under trial prisoners out of total 3.32 lakh jail inmates across India. The occupancy rate across all prisons in the country was 112.1% or 3.72 lakh inmates against a capacity of 3.32 jail inmates, the data said.

 

#India-The police are outdoing the Taliban #Vaw #moralpolicing


TNN | Jan 16, 2013,

MUMBAI: The Bombay Police Act (BPA) of 1951, with its outdated provisions still intact, is now also being used outside the city to rein in citizens in a manner that tramples upon personal liberty and fundamental rights. Legal experts expressed shock that police in Thane district were using Section 110 of the BPA — which prohibits “indecent, riotous or disorderly behaviour in public” — against couples and individuals found in public places after sunset or in “isolated spots” or lonely stretches. The intention is to fight sexual harassment and make the streets safer for women, but experts said the cops are only targeting innocent people and not the criminals.

Police in the Kalyan-Dombivli area recently began stopping couples and lecturing them about the benefits of staying indoors at night, one of which apparently is that they wouldn’t be fined Rs 1,200 under the BPA. Over 90 people have been fined. Criminal law counsel Shrikant Bhat said that under the law the police have no power to even impose such a fine. They are only authorized to investigate.

“The policemen are acting like tyrants. Instead of doing their duty to protect people and women, they seem to have lost all sense of policing,” said Colin Gonsalves, a civil rights lawyer who has moved to Delhi from Mumbai and now practises in the Supreme Court. “My advice to the womenis to identify these police officers who prevent them from being out and then move the police chief or Bombay high court to have such officers removed from service,” he said.

Senior counsel and criminal law expert from Mumbai, Shirish Gupte, added, “The police have absolutely no power to stop anyone from being outside unless the person is soliciting a customer. The police are overreaching the law.” The police also have no power to ask college principals to ensure that students display their college identity cards at all times, even outside college premises.

Apparently, the police move came after a circular was sent to the force in Thane asking it to act against sexual harassment. “The police move, an outcome of a well-intentioned circular to form squads across police stations to tackle sexual harassment, is being misdirected and enforced by overzealous cops without application of mind,” said one lawyer.

“I think the problem is not with the law. The police are targeting law-abiding citizens by grossly misunderstanding the provisions of the law,” said former chief information commissioner Shailesh Gandhi. “Instead of providing security to citizens, they are harassing them to cover their own failure. The police must stop this immediately and apologize to the innocent citizens.”

“A couple or a single girl, irrespective of the time of day, is not exposing her person in an indecent manner by merely walking on the road or sitting in a corner. The police have absolutely no justification to fine young couples Rs 1,200 and lecture them on morality,” said Bhat. He added, “The police also can’t ask a couple or single girl to stay indoors after 8pm or 10pm. By doing this, they are outdoing the Taliban. Article 19 and 21 of the Constitution of India enshrine personal liberty and freedom of movement. Undoubtedly, neither freedom nor personal liberty is unconditional or absolute. However, a couple moving at night is not indulging in indecent behavior. There is nothing to show that the women who have been attacked by rapists and goons were indulging in indecent behavior or ‘exposing’ themselves.” Only the charge of indecent, riotous or disorderly behavior would justify police intervention, says the law.

Bhat added, “The police must be taught a lesson by being taken to court and fined, which should be recovered from their salaries and not taxpayer money. Departmental action should also be taken against them.”

The policemen are acting like tyrants. Instead of doing their duty to protect people and women, they seem to have lost all sense of policing

— Colin Gonsalves, civil rights lawyer practicing in the Supreme Court

The police also can’t ask a couple or single girl to stay indoors after 8pm or 10pm. By doing this, they are outdoing the Taliban

— Shrikant Bhat, criminal law counsel

Fighting back

The police are only authorized to investigate. They have no legal right to punish a citizen. The fines collected by the Thane police are subject to the approval of a magistrate. The fined individuals can visit the magistrate’s court the next day, engage a lawyer, plead not guilty and fight a case. Their lawyer would have the right to cross-examine the police. The magistrate can then give a judgment. Alternatively, and depending on the case, the aggrieved party can file a writ petition in the high court for quashing proceedings and return of fine, said advocate Shrikant Bhat.

 

Disclose psychiatric info under RTI? Yes, says CIC; No, says HC


Pritha Chatterjee : New Delhi, Tue Apr 24

Do psychiatry patients have the right to access records of their treatment? While the Central Information Commission (CIC) directed a mental health hospital to provide this information to a patient, the hospital has moved court citing confidentiality.

The Delhi High Court has given the Institute of Human Behaviour and Allied Sciences (IHBAS) a stay order against disclosing the information till the next hearing in September.

The case pertains to a 32-year-old married woman. She was admitted to IHABS in April 2011 by the hospital’s mobile health unit from her Gurgaon home, after her husband approached hospital with her “symptoms”.

According to Dr Nimesh Desai, director of IHBAS, “Confidentiality of psychiatric information — which includes all information disclosed by different parties related to the patient for treatment purposes — is a very fundamental concept. It is something every psychiatrist promises his interviewees verbally. Unfortunately, till date, India does not have a legal provision regarding this. The unique nature of this information — which includes historical information of the patient, his or her recollections, fantasies, feelings, fears and preoccupations from the past as well as in the present — distinguishes it from other medical records.”

The patient was discharged after four days and has since been staying with her mother in Bhopal. After her discharge, she filed an RTI seeking “the basis for my admission, doctor’s observation, and clinical examination reports, and doctor’s observation…”

Meanwhile, the patient’s husband, too, filed an RTI application, seeking the reasons of his wife’s discharge, “without my information.”

In both cases, IHBAS authorities stated that “the information sought was provided by the patient and her husband, which is sensitive/confidential in nature.”

“The need for discretion in disclosing psychiatric information is compounded in cases like this, where there is a possible marital discord and each seeks such history to use against the other,” Dr Desai said.

The December 2011 CIC order by Information Commissioner Shailesh Gandhi stated that while the hospital was exempted from disclosing treatment records to anyone other than the patient, “these precedents are not relevant when the information is being sought by the patient herself”.

Arguing against this, in their writ before the High Court, IHBAS said, “that every party disclosed information in confidentiality to the psychiatrist and the hospital should not give it away to anyone, including the patient.”

The disclosure of information contained in psychiatry case records would discourage the patients and their relatives to furnish personal and sensitive information and they would prefer to withhold such information, which would largely affect the treatment,” the writ stated.

Meanwhile, the patient’s family said they were “exploring legal options, on this violation of the CIC order.”

Maharashtra amends RTI rules without public consultation


The hushed amendment, which restricts the length of applications to 150 words, has left civil society miffed

Shonali Ghosal
New Delhi

A notification dated 16 January, restricts both the number of subject matter and words in an application such that a written request for information must relate to only one subject matter and must not exceed 150 words. For an Act which is often touted as the common man’s tool for transparency to be amended without the knowledge of the general public has left many disturbed. RTI activists both from Maharashtra and across the country in an attempt to revoke the amendment are signing a joint petition letter of protest led by activist G R Vora to be submitted to Chief Minister Prithviraj Chavan on Monday, 2 April.

“We will also be seeking an appointment with the CM to ask for more information commissioners. The state government is too preoccupied with surreptitiously passing amendments to see that we have only four information commissioners.” Some like Mumbai-based RTI Activist Krishnaraj Rao are most miffed with the absolute lack of public consultation. “They should have consulted all stakeholders before changing the rules. Otherwise RTI can be killed with its own rule that allows for amendments,” he says.

In fact, the lack of consultation only makes the state appear more secretive. Especially, considering that activists aren’t even mindlessly opposed to all the amendments. The second notification dated 31 January, which said that a person while inspecting documents will be allowed to take only a pencil is seen as a welcome step by many. “Some pesky individuals or people inspecting documents related to them may write comments, change figures, strike out information with a pen on official records. That’s just not done. At least with a pencil, they can erase it,” says Pune-activist Sanjay Shirodkar.

Other issues have grey areas even among government officials. On the one hand, Prahlad Kachare, head of the Yashada RTI Cell, finds nothing wrong in the word limit amendment but on the other hand, Central Information Commissioner, Shailesh Gandhi says that “it’s not a bad idea. However, 150 words may be too tight. Civil society should push for 200-250.”

Similarly, Kachare believes the single subject matter rule is debatable against the activist viewpoint that it would be too open to interpretation and would only give the public information officers more powers to reject applications. Whether the amendment will be revoked may be uncertain but it will be contested for sure. Perhaps, even the larger issues of appointment of information commissioners will merit a relook. As Gandhi puts it, “If they have the time to restrict citizens, they need to think about how RTI in the state will function without adequate information commissioners.”

Shonali Ghosal is a Correspondent with Tehelka.
shonali@tehelka.com

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.

Intent can be reason for denying information to applicant


English: Adivasi woman and child, Chhattisgarh...

Intent can be reason for denying information to applicant

Chhattisgarh Legislative Assembly hikes application fee to Rs 500, could also reject request for information

Prakhar Jain
New Delhi

In a move that is clearly against the letter and spirit of Right to Information (RTI) Act, 2005, the Chhattisgarh Legislative Assembly will now consider an applicant’s intent before providing information. The Assembly could even reject the application if it is convinced that it has been made with mala fide intent. This clearly goes against the Act, which says that an applicant requesting for information shall not be required to give any reason.

The Assembly, which had issued a notification to this effect last month, also hiked the fee for an RTI application from Rs 10 to Rs 500. Besides, the applicant will have to pay Rs 15 per copy of any document instead of the standard fee of Rs 2 charged across the country.

Devendra Verma, Secretary, Legislative Assembly, explains, “Earlier, there were no (specific) rules for the Legislative Assembly. While framing rules, we adopted from Uttar Pradesh”. The intent clause has been derived, he says, from the Preamble of the RTI Act.

Dharam Lal Kaushik, Speaker of the house, defends the notification saying that information regarding questions raised by Assembly members is still provided at Rs 1 per copy. Higher fee would apply only to information sought about the Assembly, he says.

Activists who have fought a long battle for introduction of the RTI Act are appalled. “Imagine a person who buys a kilo of ration for Rs 5 per kg. He/she will have to sacrifice the budget for 100 kg of ration to just file an RTI application. It goes against the spirit of the Act,” says Shekhar Singh, whose NGO National Campaign for People’s Right to Information (NCPRI) has been instrumental in introducing the RTI Act. The NGO, which has termed the fee hike arbitrary and harsh, will issue a press note on the matter.

Shailesh Gandhi, Central Information Commissioner, couldn’t agree more. “Bad practices set precedents easily. This is disappointing. The intent clause is disrespectful of the law. The RTI Act mentions a reasonable fee and Rs 500 is not reasonable. These (legislative) bodies just don’t want to provide information,” he told TEHELKA. Gandhi has even shot off letters to the Chief Minister, the Leader of the Opposition and the Speaker asking them to maintain the earlier fee amounts.

This is not the first time that such a step has been initiated in the state. In 2009, the government limited the word count to 150 and number of subjects to one for every RTI application. The ‘one subject per application’ rule in turn was adopted by the Madhya Pradesh Assembly in 2010.

Nikhil Dey of NCPRI says that “restricting the subject to just one is illegal as the RTI Act clearly provides for even partial transfer of application to other public authorities if all the information is not available with one department”.

Prateek Pandey, RTI activist from Chhattisgarh Citizen Initiative, recalls his experience. “Once, I asked the ex-State Information Commissioner (SIC) to define ‘subject’ and he just smiled. If the SIC can’t answer that, how will a Public Information Officer? Everyone interprets it in his own way,” he says.

The Chhattisgarh Assembly has been feeling the heat of several RTI applications of late. An Information Commissioner of the state recently had ruled against the “Speaker’s privilege” to deny information in the case of an applicant seeking audit reports of accounts of the house and RTI applications received by it. Many legislators have also been in line of fire due to information obtained under RTI applications last year which revealed them receiving gifts like microwave ovens, washing machines, etc. bought in violation of rules by various state departments.

The way ahead is either to accept the Assembly’s decision or resort to legal means. According to Singh, confrontation can be avoided. He gives the example of Manipur, which had taken a similar decision on RTI applications. However, when activists wrote to the government expressing concerns, the application fee was reduced.

Prakhar Jain is a Correspondent with Tehelka.
prakhar@tehelka.com

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