THE LAWFILE

Posts Tagged ‘Right to Information Act

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“As the examining bodies have not been exempted, and as the examination processes of examining bodies have not been exempted, the examining bodies will have to gear themselves to comply with the provisions of the RTI Act,” a Bench of Justices R V Raveendran and A K Patnaik said. The apex court made the observations while directing the Institute of Chartered Accountants of India (ICAI) to reveal “standard criteria” relating to moderation, employed by it, for the purpose of making revisions to a candidate.

“The RTI Act does not bar or prohibit the disclosure of question papers, model answers (solutions to questions) and instructions if any given to the examiners and moderators after the examination and after the evaluation of answerscripts is completed, as at that stage they will not harm the competitive position of any third party,” the court said.

No burden

The bench rejected the contention of ICAI that it would burden the examination body with extra work. “Additional workload is not a defence. If there are practical insurmountable difficulties, it is open to the examining bodies to bring them to the notice of the government for consideration so that any changes to the Act can be deliberated upon.”

“Examining bodies like ICAI should change their old mindsets and tune them to the new regime of disclosure of maximum information.

Public authorities should realise that in an era of transparency, previous practices of unwarranted secrecy have no longer a place. Accountability and prevention of corruption is possible only through transparency. Attaining transparency no doubt would involve additional work with reference to maintaining records and furnishing information,” the court said. The bench also noted that the Parliament has enacted the RTI Act providing access to information, after great debate and deliberations by the Civil Society, and in its wisdom, has chosen to exempt only certain categories of information from disclosure and certain organizations from the applicability of the Act.

COURTESY: DECCAN HERALD

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Aruna Roy: Jan Lokpal Bill impractical, undemocratic

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BATTLE OF JAN LOKPAL BILL

Terming Anna Hazare‘s Jan Lokpal Bill “impractical and complicated”, noted social activist and National Advisory Council ( NAC) member Aruna Roy said that giving widespread powers to an unelected body is a “threat to democracy”.

“Jan Lokpal is a bill impossible to implement. Also, it derails the checks and balances between the judiciary, executive and other organs of the democratic structure,” Roy, 65, who pioneered the right to information (RTI) movement in the country, told IANS in an interview here.

“Not that we agree with the government Lokpal Bill. The Lokpal legislation should be thoroughly deliberated again by activists, lawmakers and all other stakeholders.

“We of course support the democratic right of Hazare to hold demonstrations and fast against the government. That is why we condemned the arrest of Hazare,” she said.

“But we have no meeting point with them, though we keep meeting each other at functions and meetings of common interest,” she added.

Asked about the huge public support Hazare has drawn, Roy said: “There have been huge gatherings in support of NGO-sponsored agitations, like the Narmada Bachao movement. It might not have got similar publicity, as live TV was not there then.”

Roy and her fellow activists in the National Campaign for People’s Right to Information (NCPRI) have prepared an alternate version of the Lokpal bill, which will be presented to parliament’s standing committee.

Roy, a Magsaysay award winner, said the Jan Lokpal bill is a “giant, complicated exercise” as it tried to extend from the prime minister to a peon.

“It wants to bring the higher judiciary into its ambit, which otherwise should have been under the Judicial Standards and Accountability Bill, 2010,” she said.

She felt that the suggestion of dual duties — curbing corruption and redressing grievances — under the Jan Lokpal was not feasible.

“The Jan Lokpal is a threat to democracy as a powerful, non-elected agency can lead to abuse of power and abuse of authority. Power corrupts and absolutely power corrupts absolutely,” she quipped.

“Grievance redressal should not be the role of the Lokpal; it should be the work of the executive.

“See, wages of lakhs of workers in the NREGA (Mahatma Gandhi National Rural Employment Guarantee Act) in Rajasthan have not been paid. But that is because the shortage of bank staff and other bureaucratic delays,” she said.

The massive organisational setup suggested in the Jan Lokpal will lead to corruption and inefficiency, she cautioned.

“You may be able to find 11 Lokpal members of integrity, but it is difficult to create a clean set-up of thousands of staffers and hold them accountable,” Roy said.

The government-drafted Lokpal is also deficient on several fronts, she added. Since it excludes cases under the state governments, there can be no probe against cases like the Adarsh housing society scandal, the Commonwealth Games scam and illegal mining in Karnataka.

She said excluding the prime minister and the higher judiciary was wrong. “This is a wrong practice. Nobody should be above the law,” she said, adding that there should be certain safeguards. “Like both the Lokpal and the Supreme Court should agree on a probe against the prime minister.”

Roy also suggested that the Judicial Standards and Accountability Bill should be revised to facilitate effective action against the higher judiciary while the Central Vigilance Commission (CVC) should be strengthened to probe junior officials.

The whistleblowers’ protection bill too should be revised to deal with the increasing attacks and threats against RTI activists, she suggested.

“The Lokpal bill should not become an issue of adamant stances, political rivalries and personality-driven agitations. What we need is a sincere, detailed debate for legislation of immense social significance and public concern,” she said.

Roy, an Indian Administrative Service (IAS) officer from 1968 to 1974, resigned from the government as the clouds of Emergency were gathering. She took to social work in the Social Work Research Centre in Tilonia in Rajasthan, founded by her husband Sanjit ‘Bunker’ Roy, another Magsaysay award winner.

However, she professionally disassociated from her husband in 1983, reportedly for ideological reasons, and founded the Mazdoor Kisan Shakti Sangathana (Workers and Peasants Strength Union) in 1990 in Devdoongri in Rajsamand district of Rajasthan.

Roy’s campaign for right to information led to the enactment of the RTI Act – in Rajasthan in 2000 and five years later at the national level.

COURTESY : ECONOMIC  TIMES

Courts can’t award exam marks, says SC

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 After declaring that sky was the limit for its powers to right a wrong, the Supreme Courton Wednesday ruled that courts have no mandate to re-evaluate an answer sheet even if a candidate had been awarded less marks in an examination.

A court cannot substitute its opinion — how much marks should be awarded to a candidate in an answer sheet — to that of an examiner, ruled a bench of Justices R V Raveendran and A K Patnaik.

Incidentally, the same bench had recently ruled that a candidate not satisfied with his marks was entitled to have a copy of his answer sheet if he made an application under the Right to Information Act.

Wednesday’s ruling came in a case related to one Khusboo Srivastava, who was not satisfied with her marks in the All India Pre-Medical/Pre-Dental Entrance Examination, 2007. She had requested the Central Board of Secondary Education (CBSE) for re-evaluation.

The CBSE had refused saying it was not permissible under the rules. She then moved the Patna High Court. A single judge bench called for the answer sheets and on re-evaluation felt that Khusboo deserved to get two additional marks, one each in the chemistry and botany papers. But, it refused to allow her to get admitted to the MBBS course.

A division bench agreed with the award of additional marks but also directed CBSE to admit her in the MBBS course in the academic session 2009-10.

CBSE appealed in the Supreme Court. It argued that in the absence of any provision in the relevant rules providing for re-examination or re-evaluation of answer sheets of a candidate, the court could not do so.

The bench of Justices Raveendran and Patnaik noticed that there were earlier apex court rulings that in the absence of any provision for the re-evaluation of answer sheets in the relevant rules, no candidate in an examination had any right to claim or ask for re-evaluation of his marks.

Justice Patnaik, writing the judgment for the bench, said: “In our considered opinion, neither the single judge nor the division bench of the high court could have substituted his/its own views for that of the examiners and awarded two additional marks to Khusboo Shrivastava for the two answers in exercise of powers of judicial review under Article 226 of the Constitution as these are purely academic matters.”

The bench set aside the HC judgment. But, it said: “We are informed that Khusboo was admitted to the MBBS course subsequently. If so, her admission in the MBBS course will not be affected.”

RTI a formidable tool to fight corruption: Supreme Court

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The right to information is a cherished right. Information and the right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring about transparency andaccountabilitythe Supreme Court has held. A Bench of Justices R.V. Raveendran and A.K. Patnaik gave this ruling (briefly reported on August 10) while allowing disclosure of answer sheets of students in public examinations.The Bench said the RTI Act provisions should be enforced strictly and all efforts made to bring to light the necessary information under Section 4 (4) (b) which “relates to securing transparency and accountability in the working of public authorities and in discouraging corruption.”

Disposing of appeals, the Bench affirmed the Calcutta High Court order directing examining bodies to permit examinees to inspect their answer books, subject to certain clarifications on the scope of the RTI Act.Writing the judgment, Justice Raveendran, however, said: “Indiscriminate and impractical demands or directions under the RTI Act for disclosure of all and sundry information [unrelated to transparency and accountability in the functioning of the public authorities and eradication or corruption] would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down in the non-productive work of collecting and furnishing information.”

The Bench said: “The RTI Act should not be allowed to be misused or abused to become a tool to obstruct national development and integration or to destroy peace, tranquillity and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where75 per cent of the staff of public authorities spends 75 per cent of its time in collecting and furnishing information to applicants instead of discharging regular duties.”

On disclosure of answer books, the Bench said the provisions of the RTI Act would prevail over the provisions of the bylaws/rules of the examining bodies. As a result, “unless the examining body demonstrates that the answer books fall under the exempted category of information under Section 8 (1) (a) of the RTI Act, it will be bound to provide access to an examinee to inspect and take copies of his evaluated answer books, even if such inspection or taking copies is barred under the rules.”

On the contention that the examining bodies held the answer books in their fiduciary capacity, the Bench said: “Once the examiner has evaluated the answer books, he ceases to have any interest in the evaluation done by him. He does not have any copyright or proprietary right or confidentiality right in regard to the evaluation. Therefore, it cannot be said that the examining body holds the evaluated answer books in a fiduciary relationship, qua the examiner. As no other exemption under Section 8 of the RTI Act is available in respect of evaluated answer books, the examining bodies will have to permit inspection.”

Protecting identity

However, to protect the safety and identity of the examiners, those portions which contain information on examiners/coordinators/scrutinisers/head examiners or which “may disclose their identity with reference to signature or initials shall have to be removed, covered, or otherwise severed from the non-exempted part of the answer books.”

The Bench said: “The right to access information does not extend beyond the period during which the examining body is expected to retain the answer books. In the case of the CBSE, the answer books are required to be maintained for three months and thereafter they are liable to be disposed of/destroyed. Some other examining bodies are required to keep the answer books for six months.”

The Bench said :

The effect of the provisions and scheme of the RTI Act is to divide ‘information’ into the three categories. They are :

  1. Information which promotes transparency and accountability in the working of every public authority, disclosure of which may also help in containing or discouraging corruption (enumerated in clauses (b) and (c) of section 4(1) of RTI Act).
  2. Other information held by public authority (that is all information other than those falling under clauses (b) and (c) of section 4(1) of RTI Act).
  3. Information which is not held by or under the control of anypublic authority and which cannot be accessed by a public authority under any law for the time being in force.Information under the third category does not fall within the scope of RTI Act. Section 3 of RTI Act gives every citizen, the right to ‘information’ held by or under the control of a public authority, which falls either under the first orsecond category. In regard to the information falling under the first category, there is also a special responsibility upon public authorities to suo moto publish and disseminate such information so that they will be easily and readily accessible to the public without any need to access them by having recourse to section 6 of RTI Act. There is no such obligation to publish and disseminate the other information which falls under the second category.

The information falling under the first category, enumerated in sections 4(1)(b) & (c) of RTI Act are extracted below :

4. Obligations of public authorities.-(1) Every public authority shall–

(a) xxxxxx

(b) publish within one hundred and twenty days from the enactment of this Act,–

(i) the particulars of its organisation, functions and duties;

(ii) the powers and duties of its officers and employees;

(iii) the procedure followed in the decision making process, including channels of supervision and accountability;

(iv) the norms set by it for the discharge of its functions;

(v) the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions;

(vi) a statement of the categories of documents that are held by it or under its control;

(vii) the particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof;

(viii) a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for public;

(ix) a directory of its officers and employees;

(x) the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations;

(xi) the budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made;

(xii) the manner of execution of subsidy programmes, including the amounts allocated and the details of beneficiaries of such programmes;

(xiii) particulars of recipients of concessions, permits or authorisations granted by it;

(xiv) details in respect of the information, available to or held by it, reduced in an electronic form;

(xv) the particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use;

(xvi) the names, designations and other particulars of the Public Information Officers;

(xvii) such other information as may be prescribed; and thereafter update these publications every year;

(c) publish all relevant facts while formulating important policies or announcing the decisions which affect public;

Sub-sections (2), (3) and (4) of section 4 relating to dissemination of information enumerated in sections 4(1)(b) & (c) are extracted below:

“(2) It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of sub-section (1) to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information.

(3) For the purposes of sub-section (1), every information shall be disseminated widely and in such form and manner which is easily accessible to the public.

(4) All materials shall be disseminated taking into consideration the cost effectiveness, local language and the most effective method of communication in that local area and the information should be easily accessible, to the extent possible in electronic format with the Central Public Information Officer or State Public Information Officer, as the case may be, available free or at such cost of the medium or the print cost price as may be prescribed.Explanation.–For the purposes of sub-sections (3) and (4), “disseminated” means making known or communicated the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet or any other means, including inspection of offices of any public authority.”

Some High Courts have held that section 8 of RTI Act is in the nature of an exception to section 3 which empowers the citizens with the right to information, which is a derivative from the freedom of speech; and that therefore section 8 should be construed strictly, literally and narrowly. This may not be the correct approach. The Act seeks to bring about a balance between two conflicting interests, as harmony between them is essential for preserving democracy. One is to bring about transparency and accountability by providing access to information under the control of public authorities. The other is to ensure that the revelation of information, in actual practice, does not conflict with other public interests which include efficient operation of the governments, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information. The preamble to the Act specifically states that the object of the Act is to harmonise these two conflicting interests. While sections 3 and 4 seek to achieve the first objective, sections 8, 9, 10 and 11 seek to achieve the second objective.

Therefore when section 8 exempts certain information from being disclosed, it should not be considered to be a fetter on the right to information, but as an equally important provision protecting other public interests essential for the fulfilment and preservation of democratic ideals.

When trying to ensure that the right to information does not conflict with several other public interests (which includes efficient operations of the governments, preservation of confidentiality of sensitive information, optimum use of limited fiscal resources, etc.), it is difficult to visualise and enumerate all types of information which require to be exempted from disclosure in public interest. The legislature has however made an attempt to do so. The enumeration of exemptions is more exhaustive than the enumeration of exemptions attempted in the earlier Act that is section 8 of Freedom to Information Act, 2002. The Courts and Information Commissions enforcing the provisions of RTI Act have to adopt a purposive construction, involving a reasonable and balanced approach which harmonises the two objects of the Act, while interpreting section 8 and the other provisions of the Act.

At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing. This is clear from a combined reading of section 3 and the definitions of ‘information’ and ‘right to information’ under clauses (f) and (j) of section 2 of the Act. If a public authority has any information in the form of data or analysed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in section 8 of the Act.But 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 nonavailable information and then furnish it to an applicant. A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide ‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any ‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’ in the definition of ‘information’ in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act.

Section 19(8) of RTI Act has entrusted the Central/State Information Commissions, with the power to require any public authority to take any such steps as may be necessary to secure the compliance with the provisions of the Act. Apart from the generality of the said power, clause (a) of section 19(8) refers to six specific powers, to implement the provision of the Act. Sub-clause (i) empowers a Commission to require the public authority to provide access to information if so requested in a particular ‘form’ (that is either as a document, micro film, compact disc, pendrive, etc.). This is to secure compliance with section 7(9) of the Act. Sub-clause (ii) empowers a Commission to require the public authority to appoint a Central Public Information Officer or State Public Information Officer. This is to secure compliance with section 5 of the Act. Sub-clause (iii) empowers the Commission to require a public authority to publish certain information or categories of information. This is to secure compliance with section 4(1) and (2) of RTI Act. Sub-clause (iv) empowers a Commission to require a public authority to make necessary changes to its practices relating to the maintenance, management and destruction of the records. This is to secure compliance with clause (a) of section 4(1) of the Act. Sub-clause (v)empowers a Commission to require the public authority to increase the training for its officials on the right to information. This is to secure compliance with sections 5, 6 and 7 of the Act. Sub-clause (vi) empowers a Commission to require the public authority to provide annual reports in regard to the compliance with clause (b) of section 4(1). This is to ensure compliance with the provisions of clause (b) of section 4(1) of the Act. The power under section 19(8) of the Act however does not extend to requiring a public authority to take any steps which are not required or contemplated to secure compliance with the provisions of the Act or to issue directions beyond the provisions of the Act. The power under section 19(8) of the Act is intended to be used by the Commissions to ensure compliance with the Act, in particular ensure that every public authority maintains its records duly catalogued and indexed in the manner and in the form which facilitates the right to information and ensure that the records are computerized, as required under clause (a) of section 4(1) of the Act; and to ensure that the information enumerated in clauses (b) and (c) of sections 4(1) of the Act are published and disseminated, and are periodically updated as provided in sub-sections (3) and (4) of section 4 of the Act. If the ‘information’ enumerated in clause (b) of section 4(1) of the Act are effectively disseminated (by publications in print and on websites and other effective means), apart from providing transparency and accountability, citizens will be able to access relevant information and avoid unnecessary applications for  The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under clause (b) of section 4(1) of the Act which relates to securing transparency and

accountability in the working of public authorities and in discouraging corruption. But in regard to other information,(that is information other than those enumerated in section 4(1)(b) and (c) of the Act), equal importance and emphasis are given to other public interests (like confidentiality of sensitive information, fidelity and fiduciary relationships, efficient operation of governments, etc.). Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritising ‘information furnishing’, at the cost of their normal and regular duties.

Centre Justifies Keeping CBI, NIA Etc Out Of RTI Act Ambit

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Terming the right to information as “not an absolute one”, the Centre defended in the Delhi High Court its decision to keep key probe and intelligence agencies like CBI, NIA and NATGRID out of the transparency law ambit, asserting that it was “in larger public interest and in the interest of national security.”

In a 16-page affidavit submitted to the bench of Chief Justice Dipak Misra and Justice Sanjiv Khanna, the Ministry of Personnel justified its decision to keep various investigating and intelligence agencies out of the Right to Information Act purview, citing the need to strike a balance between “transparency and the security and well-being of the nation.”

“It is in the larger public interest and in the interest of the national security that CBI, NIA and NATGRID have been included in the second schedule to the act,” the Centre said in its affidavit submitted to the court in reply to the court notice over a public interest plea, challenging the exclusion of CBI etc from the RTI Act ambit.

“The right to information is not an absolute right.

There is a need to ensure the security of the nation, which should not be jeopardised due to disclosure of information under the transparency law,” said the Centre.

“It may be stated that the RTI Act requires a balance to be maintained between transparency and security and well- being of the nation. The three organisations have been included in the second schedule to the Act for maintaining such a balance,” it added.

The affidavit by the Ministry of Personnel said the government decided to keep CBI out of the transparency law ambit on a agency’s representation which was throughly examined by a committee of secretaries.

“This has been primarily done to ensure that the interests of the security of the state are not overlooked while protecting the rights of the citizens to seek information,” the affidavit said and sought the PIL to be dismissed with cost.

While refuting allegations that exemption had been granted to hide information and make CBI etc opaque organisations, the ministry said these organisations were not excluded from the RTI Act ambit to protect any guilty employee, officer, minister and other authorities.

CBI, meanwhile, in a separate affidavit to the court, pleaded disclosure of information had been hindering its functioning.

Citing a list of sensitive cases, including the assassination of former Prime Minister Rajiv Gandhi, Navy War Room leak case, IC 814 hijacking and Bombay blast, CBI said it has been handling several “sensitive cases pertaining to the national security and the disclosure of information about them would jeopardise the functioning of the agency.”

The Centre and CBI had filed their replies in response to the court notice to them on two separate PILs, filed last month by lawyers Sitab Ali Chaudhary and Ajay Aggarwal against the June 9 decision of the union cabinet exempting CBI, NIA and National Intelligence Grid (NATGRID) from the purview of the RTI Act.