Friday, August 26, 2016

CIC seeks report on Ridge encroachment

The Hindu‎‎‎‎: New Delhi: Friday, August 26, 2016.
The Chief Information Commissioner (CIC) has taken exception to rampant encroachments in the green lung of the Capital the Ridge area due to delay in its demarcation and sought a report from the forest and revenue departments in this regard.
The case relates to an RTI application filed by one Anil Sood seeking details of maps and measurements of encroachments in the Ridge area.
Sood had pleaded before the Commission that there were at least 50 cases of encroachment in the area every day. He had claimed that there was an urgent need to stop this practice. Taking note of this, CIC Sridhar Acharyulu directed the two departments to submit a report on the action taken against encroachers.
Forest department officials, however, did not have answers to questions posed by Mr. Acharyulu.
He said it was a highly objectionable attitude of the forest department “to consume months and months to give just one copy of affidavit which they have already had with them”.
The forest department claimed that the demarcation of the ridge had not been authentically done and that the issue was before the National Green Tribunal and the Delhi High Court.
Department slammed
“Their (Forest Department) approach is hyper-technical and red tape-based. If an information seeker has to suffer so much of procrastination, how could any common man challenge the encroachments? How do the so-called conservators postpone the ‘protection’ of forests from encroachers on the excuses of non-authentication or no time to demarcate, etc.? How can they keep quiet after writing a couple of letters to the revenue department?” he asked.
Acharyulu said the RTI Act was meant to challenge this inaction and red tape and the Forest Department had to understand this. -PTI

Land allocation to Dalits: A feasible option to end oppression?

Times of India‎ ‎‎‎: Ahmedabad: Friday, August 26, 2016.
A major plank of young Jignesh Mevani, widely projected as the new Dalit icon of Gujarat, is that the state government should provide five acres of land to each Dalit family, and it should part of the solution to rehabilitate those doing the despicable job of manually scavenging of dead cattle. The view apparently stems from the understanding that agriculture is a respectable profession, and can certainly provide a good livelihood option. Mevani has threatened, in case five acres land is not offered by September 15, he would launch a “rail roko” agitation.
Trained as a lawyer under late Mukul Sinha, a well-known Gujarat High Court advocate who shot into prominence for his tough counter-questions to those who appeared before the Nanavati-Shah Commission of inquiry into Gujarat riots, Mevani’s “passion” for land is not new. It existed five years ago, too, when I first met him in the Times of India office in Gandhinagar. He had told me how most of the land, which had been rendered surplus under the Gujarat Agricultural Land Ceiling Act, 1960, hadn’t been “handed over” to the Dalits.
A couple of months back, talking in the same strain, Mevani, a hardcore city dweller, told me on the sidelines of a land rights meet, that a Gujarat government affidavit before the High Court had claimed, it wasn’t “physically possible” for the state revenue department officials to survey the land that hadn’t been handed over to the Dalits. “I would like to meet the state revenue secretary in Gandhinagar to find out why is the state government so indifferent”, he seemed to plead.
I don’t know if he could meet the top official, but, clearly, he wasn’t speaking in the air. I knew: Based on a information (RTI) plea, he had found out last year how there was an “extremely tardy” progress in the allocation of surplus land to the landless. Records with him showed the Gujarat government, in all, had “acquired” 1,63,808 acres of land. Of this, he estimated, quoting official sources, nearly 70,000 acres was “under dispute” with the revenue tribunal or in courts, yet there were 15,519 acres on which “there is no dispute”; yet this land hasn’t been handed over to the landless.
Be that as it may, a major question that has for long puzzled me is, how could land become a panacea  for Dalits’ and other other marginalized communities’ ills? Wasn’t there much truth in Niti Aayog vice-chairman Arvind Panagariya’s view that the share of agriculture in the GDP is just about 15 per cent, while half of the workforce is dependent on it? This contradiction, he believes, is a major reason why the rural people are poorer than the other half, employed in industry and services. And this, he thinks, is the main reason why, in the longer run, “the potential of agriculture to bring prosperity to a vast population remains limited.
I approached Prof Ghanshyam Shah, a well-known social scientist, who has been studying the marginalized communities of Gujarat for several decades, to know if land could be a solution of the Dalit problem. Pointing towards the demographic shift of Dalits in Gujarat, Prof Shah told me, “The urge for land is mainly Dalits in rural areas mainly of the Saurashtra region, and not entire Gujarat”, he told me, adding, “Nearly all of them are either landless workers or marginal farmers.”
Elucidating, he said, “I was looking at the data. They suggest that the proportion of Dalits living in rural areas in Saurashtra remains high compared to the state average. However, it just the opposite in the rest of Gujarat. In fact, a a higher than the overall proportion of Dalits lives urban areas of the rest of Gujarat.”
“The urban Dalits face a different set of problems than rural Dalits. Even the proportion of atrocities on Dalits is pretty high in the Saurashtra region and other rural areas”, he said, adding, “A peep into the data of atrocities against Dalits showed this quite clearly.” Indeed,  the districts and areas which have been declared “sensitive” from the Dalit atrocities angle are mainly rural Ahmedabad (Rural), Vadodara (Rural), Rajkot (rural),and  nearly most of the Saurashtra region and Kutch.
Interestingly, it is not just the agitators who view agriculture and allied sectors are the panacea for the marginalized communities. The view is equally strong among traditional economists. They do agree, for instance, that agriculture contributes less than 20 per cent of the Gujarat economy, down from 50 per cent during 1970s; yet they insist that agriculture is the “backbone of the economy” because  because more than half of the working population is dependent on agricultural activities for their livelihood! Hence the “solution”: Priority should be given to agriculture in order to reduce poverty and malnutrition and for inclusive growth.
This is just contrary to what the available surveys suggest. One of them is by the Centre for the Study of Developing Societies (CSDS), Delhi, which finds that, given an employment opportunity, 61 per cent of India’s farmers would like to “shift” to cities, with 50 per cent of farmers said they are “ready to quit farming” if such a possibility arises.
Conducted in 2013-14 in 274 villages spread over 137 districts of 18 Indian states, including Gujarat, and based on interview with 8,220 individuals, 20 per cent of whom are Dalits, the survey report says, “When farmers were asked whether they want their children to settle in the city, as many as 60 per cent said they want their children to settle in the city. Another 14 per cent do not want their children to settle in the city, whereas 19 per cent said they will prefer their children’s choice on this matter.”
Pointing out that better education was cited as a major reason why farmers want their children to settle in cities, followed by better facilities, and employment opportunities, the study says,  “When asked whether they would like to see their children engaging in farming, only 18 per cent responded positively, 36 per cent said they do not want their children to continue farming as their occupation, and 37 per cent said they will prefer their children’s choice.”
The study underlines, “The sentiment that their children should not continue farming is strongest among landless and small farmers (39 per cent) and weakest among large farmers (28 per cent)” a big proportion of whom are Dalits. The study adds, in a separate interview with youths from farmer households, “60 per cent said that they would prefer to do some other jobs, whereas only 20 per cent said they would continue farming.”
Ironically, it is no other than BR Ambedkar in whose name most Dalit leaders (including Mevani) are never tired of swearing for any and every issue who exhorted Dalits to flee villages and move to cities in order to escape caste shackle. Ambedkar wrote,  “What is a village but a sink of localism, a den of ignorance, narrow-mindedness and communalism?”
Intelligent Dalit intellectuals are found to have taken a cue from Ambedkar on the land issue. They say, land cannot be the panacea for Dalits’ fight against “oppression”. Senior Dalit intellectual Ratan Lal of the Delhi University, says land can at best be only be a “small part in the overall fight”, insisting, the main focus should be right to equal participation in public life, government and private sector. He says, Ambedkar termed villages “feudal bastions.”

RTI plea turns Hry schools into marriage bureaus

Times of India‎ ‎‎‎: Chandigarh: Friday, August 26, 2016.
You would expect government school headmasters to have better things to do than to create an exhaustive list of unmarried people of a particular community among their teachers. But that is precisely what authorities in Haryana's 10,000-odd government schools are doing these days creating a databank of eligible single people from the Punjabi community!
The harried headmasters are creating the data after a woman from Rewari filed an RTI plea with the Haryana education department for the information. Instead of questioning the application's intent, it was promptly sent to all schools of the state. TOI is withholding the applicant's name as she is herself embarrassed with the query today.
Sources say that the woman was looking for a marriage alliance for a relative, who is also a teacher. She filed the RTI as she simply wanted to know about a specific teacher in a school in Karnal. But the application asked the information officer to give the name, address and phone number of all elementary school teachers be sent to her. The government readily obliged and thus began a laborious exercise.
Under RTI law, personal information can be given only with the consent of the person concerned, making life even more difficult for the school authorities.
"We are careful in such cases as the information can often be misused especially when it comes to unmarried women," says P K Das, Haryana additional chief secretary (school education).
Education department superintendent Balbir Singh has asked district education officers of all 21 districts to send the requisite information by email or fax. "You will be responsible for any delay, for that you will be liable for disciplinary action apart from penalty of Rs 250 daily as per section 5.4 of the Act," Singh has warned in the letter.

RTI test for Delhi employees in November

The Asian Age‎‎‎: New Delhi: Friday, August 26, 2016.
With a view to encourage its officers and staff, including Group D employees, to get acquainted with the provisions of the Right to Information Act (2005), the Aam Aadmi Party government has decided to hold a comprehensive test on the matter in November this year in the national capital. All officers working with the Delhi government, its sub-ordinate offices or undertakings and local bodies can participate in the test.
The test will be confined to the provisions of the RTI Act and will contain 100 objective or subjective questions.
The test will be of one-and-a-half hour duration. There will be separate papers for each category one for LDC and Group D and their equivalent, second for UDCs, Assistants and their equivalent and the third for superintendents and their equivalent and above.
Each incumbent who secures 50 per cent and above marks would be given a certificate and cash award on the basis of his or her performance. Those who will secure 80 per cent or above will be paid a cash incentive of Rs 1,500, ones who secure 70 per cent to 79 per cent will be paid Rs 1,000, those getting between 60 per cent and 69 per cent marks will be given a reward of Rs 800 and ones securing 50 per cent to 59 per cent will be paid Rs 600.
In addition to the cash prizes, those who will secure the first three positions by getting 80 per cent and above marks in their respective categories will be paid additional cash incentives. The toppers will be paid an additional cash prize of Rs 1,500. Those securing second position will be rewarded Rs 1,000 and the ones who get third position will be paid an additional amount of Rs 500.
All that one is required to do to participate in the test is to submit a one-page application giving details about his or her designation and department. The applications have to be submitted latest by September 30.
The information related to the test has already been conveyed to all the principal secretaries, secretaries, HODs, district and sessions judges, all MDs and chairpersons of local bodies, commissioners of municipal bodies, police commissioner and chairpersons of NDMC and DJB.

Opposition leader questions new govt's lack of openness at HC

Times of India‎‎: Kochi: Friday, August 26, 2016.
Opposition Leader of the state has rushed to the Kerala High Court alleging lack of openness on the part of the newly-elected LDF government in revealing crucial information sought under Right to Information (RTI) Act. The new government came to power in May this year.
Through his petition, opposition Leader Ramesh Chennithala has demanded that the LDF government be asked to reveal what interest it holds higher than public interest for denying information on council of ministers' decisions under RTI. The only exemption available to the government is if such interest is higher than public interest, he contended in a petition.
The demand was raised by Chennithala in an application filed to the court for joining in a case filed by the state government seeking a declaration that it is not bound to provide information on decisions taken by council of ministers in response to RTI queries. An order issued by the state information commission to provide such information was challenged by the government.
"It appears that the evil motive of govt is evident from the lame and sham excuses put forward in the writ petition against the citizens' right to information under RTI Act and thereby to rule the state behind 'iron curtain' which is not possible and permissible in a democratic society. The state govt cannot interpret the provisions of RTI Act to meet the evil design to cover up true information from public access due to political reasons. The statement of the Hon'ble Chief Minister on the floor of the legislative assembly is contrary to the contentions advanced in the writ petition....By filing the above writ petition, the govt has challenged the very basic right of citizens to known the working of the govt which has been guaranteed in the Constitution of India and in the RTI Act," Chennithala's petition stated.
Even when the government is claiming an exemption from the duty to provide information, utilizing exemptions under section 8(1) of the Act, information should be given if public interest in such disclosure outweighs the harm to the interest sought to be protected, it is argued. In such circumstances, the government is legally obligated to explain what interests it seeks to protect by withholding cabinet decisions from people, the petition filed through former director general of prosecution T Asaf Ali said.

No records available on AgustaWestland deal: IAF in response to a RTI query

Indian Express: New Delhi: Friday, August 26, 2016.
It may appear strange but Indian Air Force has claimed it does not have records related to controversial VVIP chopper deal with AgustaWestland which was later scrapped following allegations of bribery.
The IAF and Defence Ministry are primary holders of the information sought through an RTI query. The Ministry had referred the matter to CBI for a probe after alleged corruption surfaced in the Rs 3,600 crore deal.
Under the Right to Information Act, an application was filed with the Defence Ministry seeking complete records related to the deal, including price negotiations and file notings.
In addition, the applicant had also sought information related to meetings of the Price Negotiation Committee on the deal, cancellation of the deal, first estimate of the helicopters provided by AgustaWestland, specific additions sought in the helicopters which increased the cost and deliberations which allowed lowering of flight ceiling and cabin height.
The application was transferred by the Defence Ministry on June 16 to Indian Air Force to furnish the information in accordance with the transparency law.
An application is transferred under Section 6(3) of the RTI Act when the public authority does not have any or a part of information sought by the RTI applicant.
The Indian Air Force headquarters in a reply said, "The information sought vide your RTI application is not available at this HQ."
Surprisingly, several details of the deal were referred to by Defence Minster Manohar Parrikar during a debate on the issue in the Lok Sabha on May 6.
CBI, which is probing the case, had collected many records during investigation, but as per norms, copies of necessary documents were left with the concerned ministry or the department from where they had been collected.
According to Right to Information Act, the "information" is defined as "any material in any form..." which is held by or is under the control of a public authority.
CBI had registered a case against former IAF Chief S P Tyagi along with 13 others, including his cousins and European middlemen, in connection with alleged bribery in the 2010 deal for 12 AgustaWestland helicopters for VVIPs.
The former Air Chief is accused of reducing the flying ceiling of helicopters from 6,000 m to 4,500 m (15,000 ft), which facilitated AgustaWestland to be in contention for the deal. Otherwise the company did not qualify for submission of bids.
Tyagi has denied the allegations and claimed that the change of specifications, which allowed AgustaWestland to be in contention, was a collective decision in which senior officers of Indian Air Force, SPG, NSA and other departments were involved.

Thursday, August 25, 2016

Lack of transparency in SICs’ appointment irks RTI activists

The Hindu: Pune: Thursday, August 25, 2016.
The appointment of bureaucrats as State Chief Information Commissioners (SIC) in Maharashtra has irked RTI activists in the State. The government has not come out with a single advertisement to fill posts.
In a detailed letter to Governor Ch. Vidyasagar Rao earlier this month, city-based activist Vijay Kumbhar said, “It is observed in Maharashtra the moment a bureaucrat finishes his tenure of service, he is parked as an information officer. The post of the SIC has pretty much been the playground of bureaucrats. This is utterly contrary to the spirit of the RTI Act.”
Mr. Kumbhar said since the RTI Act came into being, the State government had received more than 130 applications for the posts of SICs. However, barring the appointment of journalist Vijay Kuvalekar as a State Information Commissioner, all other posts have been filled by bureaucrats, said Mr. Kumbhar.
Maharashtra has six SIC benches spread across Mumbai, Konkan, Pune, Nashik, Nagpur and Aurangabad divisions, with the State Chief Information Commissioner sitting in Mumbai.
The function of the commissioners involves hearing second appeals while deploying quasi-judicial powers to implementation of the Act in a transparent manner.
Mr. Kumbhar said, “Provisions under Sections 12 and 15 of the Act clearly stipulate that SICs be persons of eminence in public life with wide experience and proficiency in the fields of law, science and technology, journalism, management and social service among others.”
State Chief Information Commissioner Ratnakar Gaikwad has come under sharp criticism from activists in March this year after he decided to go on three unauthorised vacations while there was a massive pendency of 33,000 second appeals.

Wednesday, August 24, 2016

Public authority not bound to collect and furnish information which is not required to be maintained by it: CIC

Live Law‎‎‎‎‎‎: New Delhi: Wednesday, August 24, 2016.
The Central Information Commission has observed that a Public Authority has no obligation upon to collect/collate information which is not required by its law, rules or regulations to be maintained by it.
In the instant case, an RTI application was filed before the Central Public Information Officer (CPIO), Rajya Sabha Secretariat seeking information/historical documents on two points pertaining to the telecasting of a programme on ‘Constitution’ on 02.03.2014 on Rajya Sabha TV Channel. According to RSTV, they had outsourced the production of a programme named ‘Savindhan Making of the Constitution’ and hence, the information has not been compiled by RSTV.
Dismissing the Second Appeal, Information commissioner Sri. Sudhir Bhargava observed: “The information which is not required to be maintained by law, rules or regulations of the public authority, the RTI Act in such cases casts no obligation upon the public authority to collect/collate such non-available information and then furnish it to the appellant, as held by the Hon’ble Supreme Court of India in CBSE v. Aditya Banopadhyay”
In the case referred above, the Apex Court had held: “where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non- available information and then furnish it to an applicant.”

Most complaints to CMO relate to home department: RTI reply

DNA‎‎‎‎‎: Mumbai: Wednesday, August 24, 2016.
Most letters and complaints to the Chief Minister's Office (CMO) pertain to the home department, according to past 20 months' information provided by the CMO under the RTI Act.
The info was given on an application made by RTI activist Anil Galgali. In his application, Galgali had sought details of the letters that the CMO had received. He had also sought information on whether the complaints or letters were resolved or given response.
As per the data, from November 2014 to June 2016, around 2,44,112 letters were received by the CMO. Of these, most pertain to the home department, followed by revenue, urban development, general administration and rural development departments. The number of letters and complaints relating to the home department stood at 71,475, revenue at 24,293, urban development at 15,388, general admin at 9,461 and rural development at 9,368.
Letters and complaints relating to the above-mentioned five departments summed up to 1,29,985, nearly 54 per cent of the total number of letters relating to 31 departments received by the CMO during the 20-month period.
"The CMO naturally receives letters against those offices that are not able to mitigate grievances of citizens. It means that they do not work and hence citizens keep writing to the CM. Since the government has the Right to Services (RTS) Act for delivery of services and grievance redressal, the number of letters should not be so high. It means, in a way, people are not getting what they want through RTS. The CM should ensure that RTS is implemented properly," said Galgali.
There was no response to several messages that dna sent to chief minister Devendra Fadnavis.

CIC inaugurates RTI workshop

Times of India‎‎‎‎‎: Allahabad: Wednesday, August 24, 2016.
Chief information commissioner of UP Jawed Usmani addressed a workshop here on Monday where he said the Right to Information Act has changed the working of government. The workshop was held to make functioning of this act more effective in government offices.
Usmani said earlier public had no access to the working of the government. However, with the Right to Information Act 2005, the public has access to government's working and this would help check corruption, he said.

Your Right to Know: In 10 years, no ad to pick Maharashtra information commissioners

Indian Express‎‎‎‎: Pune: Wednesday, August 24, 2016.
CONSIDERED TO be custodians of transparent laws in the state, the state information commissioners (SICs) have traditionally been former bureaucrats a fact which has raised concerns about the appointment process. Now, in response to an RTI query raised by The Indian Express, the General Administration Department (GAD) of the state government has revealed that in the past 10 years, not a single advertisement was issued to fill up the positions.
Promulgated in 2005, the RTI Act contains provision for appointment of SICs and a single state chief information commissioner. These commissioners are supposed to exercise their quasi judicial powers and help in implementation of the RTI Act as well as hear second appeals under the Act. At present, the state has six SIC bench with Ratnakar Gaikwad functioning as the state chief information commissioner in Mumbai.
RTI Act specifies that SICs to be eminent persons of “eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance.”
Barring journalist Vijay Kuvalekar, all other SICs in the Maharashtra have been former bureaucrats, a fact which has drawn severe criticism from all quarters.
The GAD’s reply to the RTI application now makes it clear that no advertisements were ever issued inviting applications from the public for the post of SICs. This newspaper had earlier reported how since 2005, the government had received 160 applications from people from various walks of life to fill up the positions but it’s the bureaucrats who have won the battle. (“Professors, educationists lose info panel race to ex-bureaucrats, IE April 18,2015).
Applications without proper advertisement and publicity, RTI activist Vijay Kumbhar said was meaningless and smacked of ‘match fixing’.”
“In my complaint to the governor of the state, I have pointed out how this was almost synonymous to paving the way for some people in a roundabout manner,” he said.
The state government, Kumbhar said, had earlier filed affidavit in the court to frame rules for appointments of SICs but that is yet to be done. “Appointments as custodians of transparency should itself be fair and transparent. In the case of Maharashtra, this is not being followed,” he said.

NPSU burns effigy of Govt for ignoring collapse of RTI Act

Daily Excelsior‎‎: Jammu: Wednesday, August 24, 2016.
National Panthers Student Union (NPSU) today held a protest demonstration against State Government for not filling the post of Chief Information Commissioner (CIC) and State Information Commissioner at State Information Commission (SIC).
The activists of NPSU this morning gathered at University gate and raised anti-Government slogans and burnt the effigy of BJP-PDP alliance Government for ignoring the collapse of RTI Act in the State. The protest was led by Thakur Virender Singh, State president, NPSU, who while addressing the media persons lambasted the State Government for not taking any initiative in order to fill the vacant post of CIC.
He added that only one official is present in SIC that is its Registrar, who is also going to retire within a short span of time, after which the State Information Commission is going to be defunct. He warned the State Government of launching a massive agitation if any positive step is not taken by it in order to fill all the vacant post of SIC.

PM Modi to release success stories of RTI Act

Indian Express: New Delhi: Wednesday, August 24, 2016.
Prime Minister Narendra Modi will release success stories of Right to Information (RTI) Act, during a programme to be held in October, to mark over 10 years of implementation of the transparency law enacted by the UPA government. The RTI Act, which was enacted in 2005, mandates time- bound reply to citizens query on governance related matters.
The Department of Personnel and Training (DoPT), which acts as nodal authority for the RTI Act, on Tuesday wrote to chief of Administrative Training Institutes of all state governments seeking success stories. The institutes impart training for promotion of the transparency Act. “RTI Act has been instrumental in ensuring greater and more effective access to information to all citizens of the country, especially the marginalised sections of the society,” it said.
On the occasion of completion of more than 10-years of implementation of the RTI Act, the Central Information Commission is going to hold annual convention in October, the DoPT said. “To mark this event, the Commission proposes to bring out a volume titled ‘success stories of the Right to Information Act, 2005’, which would be released for public by the Prime Minister during the annual convention,” it said. The state administrative training institutes have been asked to forward all the documented success stories maintained by them, the directive said.

Tuesday, August 23, 2016

Most complaints to CMO relate to home department: RTI reply

DNA: New Delhi: Tuesday, August 23, 2016.
Most letters and complaints to the Chief Minister's Office (CMO) pertain to the home department, according to past 20 months' information provided by the CMO under the RTI Act.
The info was given on an application made by RTI activist Anil Galgali. In his application, Galgali had sought details of the letters that the CMO had received. He had also sought information on whether the complaints or letters were resolved or given response.
As per the data, from November 2014 to June 2016, around 2,44,112 letters were received by the CMO. Of these, most pertain to the home department, followed by revenue, urban development, general administration and rural development departments. The number of letters and complaints relating to the home department stood at 71,475, revenue at 24,293, urban development at 15,388, general admin at 9,461 and rural development at 9,368.
Letters and complaints relating to the above-mentioned five departments summed up to 1,29,985, nearly 54 per cent of the total number of letters relating to 31 departments received by the CMO during the 20-month period.
"The CMO naturally receives letters against those offices that are not able to mitigate grievances of citizens. It means that they do not work and hence citizens keep writing to the CM. Since the government has the Right to Services (RTS) Act for delivery of services and grievance redressal, the number of letters should not be so high. It means, in a way, people are not getting what they want through RTS. The CM should ensure that RTS is implemented properly," said Galgali.
There was no response to several messages that dna sent to chief minister Devendra Fadnavis.

Should the Supreme Court come under RTI?

Livemint: New Delhi: Tuesday, August 23, 2016.
On 17 August, before it broke for a long weekend of four days, a three-judge Supreme Court (SC) bench of justices Ranjan Gogoi, Prafulla Chandra Pant and A.M. Khanwilkar referred a challenge to its immunity from the Right to Information (RTI) Act to a five-judge constitution bench. The decision, made after a brief hearing, was a surprise as well as a disappointment.
We piece together various elements to make sense of the apex court’s decision.
Surely, this should be an open-and-shut case. Does the apex court not preach to others about transparency and openness?
Indeed, it often has done.
So, how is it not practising what it preaches by being exempt from RTI?
It’s complicated.
How did this case begin?
It all started in 2009 with an RTI application filed by the well-known activist Subhash Chandra Agrawal with the apex court’s Central Public Information Officer (CPIO).
Agrawal sought disclosure of the SC collegium’s notes about the appointments of three SC judges: justices R.M. Lodha, H.L. Dattu and A.K. Ganguly.
Why did Agrawal choose these three judges for scrutiny?
It was reported at the time that Lodha and Dattu had been elevated, superseding the all-India seniority of other high court judges become eligible for appointment as SC judges before them under the informal system.
Lodha and Dattu (and Ganguly) were appointed on the same day: 17 December 2008.
Therefore, Agrawal was curious to know whether the collegium had emphasized merit over seniority, because Dattu, Ganguly and Lodha were at the time more junior than the then Delhi high court chief justice, A.P. Shah, and justices A.K. Patnaik and V.K. Gupta.
An RTI application by Agrawal showed that even the then prime minister, Manmohan Singh, apparently objected to this supersession of seniority.
So, what happened to his RTI request with the apex court?
Both the CPIO and the Appellate Authority of the SC rejected his request under the RTI Act, and he then filed his appeal with the RTI ombudsman, the Central Information Commission (CIC). The CIC allowed the appeal.
That makes sense. Collegium decisions are in any case reported in newspapers the following day. Why then is there such reluctance to disclose it under RTI?
Legal correspondents do indeed report collegium decisions fairly quickly after they are made by talking to people familiar with the decisions (who nearly always speak on condition of anonymity).
The reluctance to disclose details of the decisions officially, after the appointment of judges, makes the collegium look a little shy about being transparent about its decisions.
So, why was the SC’s admission of the appeal against the CIC’s decision surprising?
First of all, the appeal went directly to the apex court, skipping the high court entirely.
That’s quite unusual. The SC has done this by making a clever distinction between its administrative and judicial side.
The SC’s administrative branch is the appellant against the CIC decision, while the judicial branch will hear the appeal.
Any other litigants appealing against the CIC’s decisions cannot even dare hope for this privilege of directly approaching the SC, overlooking an appeal at the high courts entirely.
This is not the first such case though, is it?
No, it’s not.
In 2009, the SC registry first lost its appeal against a CIC decision ordering disclosure of judges’ assets, before a single judge of the Delhi high court.
And in 2010, it lost again before a three-judge bench of the Delhi high court.
The high court held that the apex court was bound to disclose information about the assets of the judges.
The SC then began to disclose information about the assets of judges, claiming it did so purely on a voluntary basis.
However, the apex court never appealed against this judgement of the Delhi high court’s three-judge bench.
Therefore, the CIC relied on this to decide the current collegium case against the SC.
Are all judges of the apex court now disclosing their assets on the SC website?
Well, there are some notable exceptions.
The four new judges who have joined recently, namely, justices Khanwilkar, D.Y. Chandrachud, Ashok Bhushan and L. Nageswara Rao are yet to declare their assets, even though they assumed office on 13 May.
Also, four of the six judges who joined after July 2014 are yet to declare their assets. They are justices Rohinton Fali Nariman, A.M. Sapre, U.U. Lalit and Amitava Roy.
Justices R. Banumathi and Pant, both of whom were appointed on 13 August 2014, were the last to declare their assets.
Does it mean that the SC judges feel they are no longer bound by the Delhi high court judgement, even though there is no stay on it?
Well, it does appear to raise that question.
As the judges said they were only declaring assets on a voluntary basis, it is hard to question them now that they appear to have stopped.
Which brings us to the present RTI case that will be heard by a constitution bench. What is the reason for a reference to a larger bench?
Well, the usual reason is Article 145(3) of the Constitution, which says that at least five judges must sit for the purpose of deciding any case involving a substantial question of law.
But, did the two-judge bench, which referred the case to a three-judge bench in 2010, not realize that it involved a substantial question of law?
Yes, the two-judge bench comprising justices B. Sudershan Reddy and Surinder Singh Nijjar, which referred this case, did mention three substantial questions of law. These are:
1. Whether the information sought would interfere with the independence of judiciary.
2. Whether disclosure would threaten the credibility of the decisions and free and frank expression of honest opinion by all the constitutional functionaries.
3. Whether non-disclosure is protected under Section 8(1)(j) of the RTI Act.
So, the matter could have immediately been referred to a five-judge bench, right? Why did it take so long?
The two-judge bench only held that it should be referred to a bench of an appropriate strength by the chief justice of India (CJI).
Obviously, CJI T.S. Thakur, who constituted the three-judge bench to hear the matter, considered three judges a bench of appropriate strength.
According to the reasoning of the bench, it also took so long because no one had mentioned the case before the CJI, seeking its expeditious hearing.
Maybe that’s how the procedure goes. But not all substantial questions of law are heard by five judges, right?
You are right.
The matter about the constitutionality of Section 377 of the Indian Penal Code was heard and decided by a two-judge bench, which has now been referred to a five-judge bench.
And Section 66A of the Information Technology Act was declared ultra vires (beyond the powers) by a two-judge bench, although it too was on a substantial question of law.
So, what prevented this three-judge bench from going ahead with it?
For a substantial question of law to be heard by a five-judge bench, it should not have been already dealt with by a bench of similar or larger strength earlier.
The three-judge bench in this case felt that what was before them was a so-called virgin matter, besides being a substantial question of law.
But, not everyone agrees on this?
Correct. Prashant Bhushan, counsel for the respondent Agrawal, does not, for one.
Bhushan argued that the question of transparency in the appointment process had already been decided in favour of disclosure of information in the S.P. Gupta case (the so-called First Judges case) in 1981.
Then, why did last week’s three-judge bench disagree with this view?
The three-judge bench felt that S.P. Gupta and related cases favoured only disclosure of information to a litigant, but it could not be stretched to include disclosure to the general public, it reasoned.
Also, earlier decisions relating to this had been made before the RTI Act came into being in 2005.
Bhushan called this contention bogus.
Did not the National Judicial Appointments Commission (NJAC) judgement, and its sequel in which the SC said it would reform the collegium, also emphasize transparency? But now, a three-judge bench thinks that it is a virgin matter and refers it to a five-judge bench again?
Yes, that’s why some observers are disappointed.
However, there is hope that the constitution bench, whenever it begins to hear the case, takes note of this contradiction and decides in favour of transparency and disclosure of information about the collegium (and about judges’ assets).
What are other people’s opinions on this?
For instance, in the matter now referred to a constitution bench, many high courts have filed affidavits as parties to the case.
Almost all the high courts have strongly opposed the contention that collegium minutes can be disclosed under the RTI Act.
Judges seem to have form in resisting transparency in the judiciary, it seems?
According to its judgements, yes. Recently, the SC also ruled against transparency in two other RTI matters concerning the judiciary.
First, while hearing an appeal against a Delhi high court division bench judgement, it set aside a CIC verdict that mandated the SC to disclose information about cases in which judgements had been reserved.
The bench in that case did not furnish any reasons for dismissing this appeal.
Second, the SC recently refused to interfere with the Delhi high court’s verdict dismissing a plea seeking details of medical reimbursements of SC judges, on the ground that it would amount to invasion of their privacy.
So, why are judges so private?
There are some valid arguments for the judiciary feeling the need for secrecy.
For example, collegium discussions can be freewheeling and include the discussion of courtroom corridor gossip and judges’ private lives, the examination of fairly invasive government intelligence reports and the expression of judges’ personal opinions.
For judges, their credibility and reputation is hugely important, and many feel that the slightest potential slight on this could be debilitating and prevent judges from doing their job.
That goes doubly so for judges who may have been rejected by the collegium, but continue to sit in high courts. Some may, perhaps legitimately fear, that a few over-enthusiastic advocates would love to get their hands on dirt against judges that they can take it out of context and use for leverage in court, by asking for their recusal or otherwise, questioning their independence in hearing a case.
And ultimately, many judges are people too, and by tradition and necessity, deeply private ones at that.
Therefore, being completely subject to RTI is perhaps deeply uncomfortable to some of them at a deeper level.
So, can anything be done to solve this issue?
It’s certainly not something allowing for easy solutions, as on top of all also hovers the SC’s continuing stand-off with the government about reform of judicial appointments.
Mint’s association with LegallyIndia.com will bring you regular insight and analysis of major developments in law and the legal world.

Monday, August 22, 2016

Green court sees red, issues arrest warrant against sluggish states

Pune Mirror‎‎‎: Pune: Monday, August 22, 2016.
Govts fail to implement bio-diversity act, documentation through people's register also non-starter.
Observing the lackadaisical attitude of state governments in implementing the Biological Diversity Act, 2002, the National Green Tribunal's (NGT) principal bench in Delhi has issued an arrest warrant against all states which have been made respondents in the case.
Mirror had, on July 9, reported that despite the Act being passed 12 years ago, it still remains on paper. The petition was filed by a Punebased environment protection volunteer on the basis of information filed under the Right to Information (RTI) Act. The information had revealed shocking data about the fact that the states are severely lagging behind in forming the biodiversity monitoring committees as well as the fact that the People's Biodiversity Register documenting the flora and fauna found in the area falling under these committees, too, has not reached a conclusion despite several years having passed.
The court, in its hearing last week, had issued a bailable warrant against residents in the sum of Rs 10,000. The respondent states have also been directed to file their replies within three weeks with advance copy to the applicant who may file a rejoinder. The case is next going to be heard on September 29.
Commenting on this order, Chandra Bhal Singh, who had filed the petition, said, "For the first time, the court has passed such an order, which is unprecedented. It is an embarrassment for the administration that the court has to issue such a strong order. The administration has been taking no cognisance of this and it is extremely sad to look at their lackadaisical attitude towards protection of biodiversity. I welcome this order whole-heartedly."
The information gathered had revealed that even Maharashtra, which had the maximum number of monitoring committees, had a mere 1,562 committees for 28,813 panchayats and municipal corporations. The state had submitted no People's Biodiversity Register either.
"By now, we must have made around 4,000 committees across the state. It was after the first notice itself that the commissioners had taken the matter on a war footing and issued letters for quick action in this regard. The whole case has had a positive impact on quickening this process," said one of the members of Maharashtra's state biodiversity board.
Maharashtra's biodiversity committee was formed as late as 2012 and in the previous period had a lot of administrative problems. It is only now that the board has been stabilised.
"First of all, there have been no efforts taken to spread awareness among various villagers about the way they should go forth with creating the committees and the need for making the registers. They have to be shown the importance of biodiversity how it is a treasure and how the services it gives us are invaluable. It is shameful that there is no seriousness in implementation of the Act and that the administration is taking it all lightly. This makes us wonder whether there are any vested interests at the government level may be they don't want to document the diversity which they feel might get in the way of 'development'," said Rajiv Pandit, founder of Jividha, an organisation working for environment conservation and education.
Santosh Shintre, another environmentalist from the city, said, "India was the first-ever country to pass a dedicated Act to protect biodiversity. However, this Act is not reflected in other policies of the country and exists in isolation even though it cannot be thus implemented. The government has to understand that better biodiversity is better and cheaper living. For example, in Raigad district, a maid, while returning home from work earlier, had access to 18 different types of wild vegetables which she could cook at home. Now, due to industrialisation, it has been lost and the district has to import vegetables from Mumbai."
Environmentalist Pradeep Chavan said, "It is a good move by the NGT since all the environmental laws the Biodiversity Act the most have been neglected when it comes to implementation. In the initial phase, when the Act was passed, some people had opposed certain provisions, stating that this will put the traditional knowledge of the community at risk of exploitation by commercial forces. After that, discussion as well as implementation have totally fallen behind. It is a great step since it an offence that no heed was paid by the state governments to the previous orders."
This makes us wonder whether there are any vested interests at the govt level may be they don't want to document the diversity which they feel might get in the way of 'development'

Notice served on two Coimbatore officials

The Hindu‎‎: Coimbatore: Monday, August 22, 2016.
Tamil Nadu Information Commission has asked two Coimbatore officers why they should not be fined for delaying a piece of information on land registration that farmers’ association leader P. Kandasamy had sought.
RTI query
In its hearing on August 11, the Commission had asked the then Public Information Officer of the Madukkarai Taluk N. Chandran (deputy thasildar, head quarters, Madukkarai) why it should not impose a fine of Rs. 25,000 on him for his reply to Mr. Kandasamy’s January 19, 2015 RTI query, that he had forwarded the query to the Coimbatore South Taluk office and he would respond after hearing from the office.
Third party
Mr. Chandran should have responded to the query in time saying that he had contacted the land owners concerned, as the information sought was about their land, and based on the land owners’ reply informed the petitioner if he would or would not furnish the information sought pertained to a third party.
The Commission had also asked the current public information officer in the taluk, S. Arulmurugan, why it should not fine him Rs. 5,000 as he had caused consternation in financial loss to the petitioner by not saying clearly if the Taluk office would provide information or not.
The Commission said that both the officers should furnish their explanations before 2.30 p.m. on September 20, 2016 in writing in person.
It also said that the petitioner cannot access the information he had sought in his query because they pertained to a third party and there was no provision in the RTI Act to furnish such information.
The petitioner Mr. Kandasamy had sought ownership details pertaining to seven survey numbers of lands in Pichanur village in Madukkarai Taluk.

Taking on the system with information as his weapon : By Manoranjan Panda

Indian Express: Bhubaneswar: Monday, August 22, 2016.
Manoranjan Panda narrates the tale of a law student from Odisha who’d used the Right To Information Act to fight corruption and help the underprivileged.
Since 2005, the Right to Information (RTI) Act has built an impressive trajectory. In an era of global youth rebellion, it seems to be opening up new space for India’s young to demand people’s right to know. Taking a cue from this new trend of students diggin up dirt, with the help of RTI, Rohit Kumar, a 24-year-old law student of KIIT University in Bhubaneswar, who tenaciously used RTI to fight corruption, has been preparing himself to provide justice to poor and underprivileged people. Rohit, who has been using the RTI Act since 2012, is the youngest face in a growing brigade of information warriors. The young crusader takes on the system for everything from inedible hostel food to corruption in ration shops – looking for truth and ensuring justice.
Currently pursuing internship at the chamber of Prashant Bhushan in New Delhi, Rohit has so far submitted more than 200 RTI applications and 125 first appeals to both the State and Central Government offices including the Prime Minister’s Office (PMO). Rohit had also asked Delhi CM Arvind Kejriwal’s office for details of individuals who made official requests for appointment and those who had been granted an appointment. Responding to the application, the CMO said no records or list of appointments were maintained and so could not be revealed. Earlier, Rohit had sought similar information from PMO.
The information was denied on the ground that it may threaten the security and sovereignty of India. “This is ridiculous. I have challenged the PMO’s decision with the central information commission (CIC),” he said. A 2011 CIC order had ruled that PMO should make public the list of the visitors coming to meet the PM excluding only the sensitive meetings. To the young crusaders, the charm of RTI far outstrips the dangers. It allows them to break the monotony of everyday life and dream of leaving behind a legacy.

Sunday, August 21, 2016

‘Implement reservation in Ph.D. admissions’

The Hindu‎‎‎: Puducherry: Sunday, August 21, 2016.
The University Grants Commission (UGC) on has directed the Pondicherry Central University to strictly implement the Central Educational Institutions (Reservation in Admission) Act, 2006, in PhD admissions.
In an e-mail reply (dated August 18, 2016) to an RTI enquiry, UGC Joint Secretary Dev Swarup has written: “The University Grants Commission has been issuing official communications with regard to strict implementation of reservation policy in appointments and admissions, from time to time. Also, whenever a written communication received from the University authorities seeking clarification on these matters, the UGC reminds them about the official position on the subject and to follow the reservation policy strictly. Further, there is no convention or relevance of anything called ‘oral instructions’ nor was any occasion or reason for the same, here in this matter. The University authorities have to address such issues at its level, keeping in view the Government policy on the subject.”
The UGC had copied the mail to the Vice-Chancellor, Lieutenant Governor of Puducherry and UGC vice-chairman H. Devaraj.
Recently, the University students had protested against the administration for not implementing the Act over the last 10 years. Responding to their demands, the administration had stated that there was confusion over the implementation of the Act and, on this ground, stalled the PhD admission process for over a month. They promised to carry it out after seeking legal consultation.
However, the University Registrar (in-charge) recently issued instructions to proceed with admissions citing oral instructions from Dr. Dev Swarup. However, no such oral instructions were given to the Registrar as mentioned in the RTI reply.
The protesting staff and students from the University alleged that by going ahead with the admission process, the administration was violating the Act and UGC directions.
The data accessed from the University administration through RTI for the last 10 years indicate that Scheduled Caste and Scheduled Tribes students were systematically excluded from getting admissions in those departments where the vacancies are less than 4, especially for PhD Programme.
They stated that despite their repeated demand, the Registrar (in-charge) of Pondicherry Central University was reluctant to implement the Act. Protests against Pondicherry Central University administration for violation of Central Educational Institutions (Reservation in Admisssion) Act, 2006, in PhD admissions are continuing with People’s Welfare Front (PWF) on Friday demanding implementation of the Act.
CPI (M) Puducherry Secretary R. Rajangam said they had sought an appointment to meet the University Registrar and Vice-Chancellor to stress on the implementation of the Act.
Pondicherry Central University Assistant Registrar (Public Relations) M.Vallathan said that the University Registrar (in-charge) M.Ramachandran had informed him that they had not received any communication related to the reservation policy in PhD admission from the UGC.

Babus and netas across nation resort to freak ways to resist RTI

Indian Express‎‎: Chennai: Sunday, August 21, 2016.
Bashir, a Kashmir resident, was excited when the then Chief Minister Omar Abdullah visited his village. He was hoping that the visit would also bring roads to his village, lacking proper road connectivity. But to his dismay, Abdullah took an helicopter for the visit.
Soon, Bashir filed an RTI petition on why the CM took the chopper and how much it cost. Apparently embarrassed to explain that the village has no accessible roads, the state administration soon laid roads. Bashir is now a local legend.
This is one of the success stories that social activist Aruna Roy, instrumental in framing the Right to Information Act, shared among enthusiastic students of the IIT Madras on Saturday on the inaugural of the NSS batch this year.
The situation has not been successful for all. So far 52 people have died trying to just find information. One of them was shot right outside Gujarat High Court. Roy asks, “if forty people asked the same question, which one person the criminals kill?
Bashir and his contemporaries realised that asking simple questions could get a lot of work done. This is what Aruna Roy calls as the power of RTI, a single question that leads to a collective one.
This power of the Act has made corrupt bureaucrats squirm. Manmohan Singh, when in power said that this law has been designed to destroy the iron railing and framework of India. Roy however said, “RTI will help reveal that all we have is a weak wooden frame eaten by white ants from the inside.”
One such expose happened in Rajasthan. Several villagers stopped receiving their pensions as they were marked dead by official records. By demanding the ‘dead list’ through RTI, Roy revealed that in the district of Kushalpura, out of the 40 declared dead, 29 were alive. Seven lakh people were legally resurrected overnight all over the state!
National security is another tool that is used to curb the utility of RTI Act. In 1997, Bhairon Singh Shekhawat, the then Chief Minister of Rajastan said what an RTI revealed on the poor status of a worn out bridge in the border district of Balmer, was a threat to national security as the Pakistanis would exploit it.
Roy says national security is being used as a red herring to hide scams in several cases. She added, “In a true democracy one should know that while we have the courage to talk, to listen and agree that everyone has the right to dissent and yet not loose track of the fact that we must be scientific and rational.”