Judiciary, Govt killing RTI Act: Shailesh Gandhi

The government and judiciary pose a serious threat to the Right to Information (RTI), and if citizens do not step in, it faces the danger of being destroyed, a Central Information Commissioner Shri Shailesh Gandhi (CIC)has warned.

The widely prevalent and dangerous trend of resistance to transparency in their functioning by “those in power” will gradually kill the RTI Act, CIC, Shailesh Gandhi (62), said in a rare outburst while talking to Hindustan Times.

Governments across the country, irrespective of which party they belong to, follow a pattern of misgovernance and are opposed to transparency, he said.

“The judiciary has been granting stays on the orders of the information watchdog to provide information under the RTI Act, this will eventually kill it,” Gandhi said.

Government departments were rushing to courts to get stay orders against the decisions of information commissions to provide information to common man.

“Delays in courts in finally deciding such matters will destroy the RTI Act,” he said.

Questioning the Union and state governments commitment to the RTI, Gandhi said there was no transparency in the appointment of information commissioners.

“No norms are being followed, and information commissions have been turned into parking lots for favourites of the government of the day.”

No training was being given to new information commissioners, either at the Centre or in the states, nor was there any concern for resources, he said.

Gandhi, the first RTI activist in the country to be appointed an information commissioner last year, said, “The four year-old law (RTI) to provide information to common man is under threat of being weakened by the government mindset of amending it for its convenience.”
Expressing surprise at the silence of information commissions, Gandhi, a graduate of Indian Institute of Technology (IIT), Bombay, said :“Tragedy is that the information commissions are silent.”

On courts’ interference in some decisions of the CIC, including the declaration of judges assets, he said :“Common man has already given up hope of getting justice from courts. Now if they continue to deny information by granting stays, I’m sorry but slow poison is being administered to the right to know.”
http://www.hindustantimes.com/StoryPage/Print.aspx?Id=d484975d-2bc6-4e98-800e-7ca51788d788

CIC fines FMS for not giving information

Central Information Commission (CIC) imposed a fine of Rs 25,000 on Delhi University’s (DU) Faculty of Management Studies (FMS) for not providing the information sought by an RTI applicant.

Needless to say that FMS — among the top rated management institutes in the country — was served a showcause notice by the CIC last month for withholding data even a year after the application was filed (April 9, 2008).

Nitesh Duhan, a student who stood first in the FMS written test last year but could not secure admission — asked for information on the written test, group discussion, extempore and personal interview marks of all those admitted to the MBA programme.

The decision of CIC to impose penalty is likely to have bandwagon effect for other business schools as aspirants may start filing RTIs on institutes covered under the RTI Act.

The commission translated its words into action by levying a fine of Rs 25,000 — the maximum penalty allowed under the RTI Act — on the institute’s Public Information Officer and Dean Prof J K Mitra.

FMS has now taken the decision to disclose break up of marks of all admission seekers in future.

CIC's larger bench to rehear scope of Section 7(3) of RTI Act on 17th August

CIC's larger bench to rehear scope of Section 7(3) of RTI Act on 17th August at 4.00pm at ISTM, Old JNU Campus

Dear friends,

I am writing to once again alert you to an important development involving interpretation of a crucial section of the RTI Act. A larger bench of the CIC will rehear the matter regards the ambit and scope of section 7(3) of the Right to Information Act (RTI Act) on 17th August 2009 at 4.00pm.

You may recollect that the Central Information Commission had issued a public notice in November 2008 inviting submissions from people on the scope and ambit of section 7(3) of the RTI Act. That notice may be accessed at the Public Notices Section of CIC website (http://cic.gov.in):
CHRI and a few other parties had submitted their views on how this important section relating to additional fees must be interpreted. The matter related to a second appeal pending before the CIC involving appellant Mr. K K Kishore and the respondent, Institute of Company Secretaries (ICS). ICS argued that 7(3) allows the PIO to charge wages of officers, search fees, collation and compilation costs and other similar costs on the applicant. We have always strongly opposed this view. A full bench comprising the Chief Information Commissioner Mr. Wajahat Habibullah, Information Commissioner, Prof. M A Ansari and Information Commissioner Satyananda Mishra heard the
case on 24th February, 2009. Two civil society representatives - Shri Sarbajit Roy and Shri Rakesh Gupta were present in addition to CHRI representatives. No public authority except ICS was present at this hearing. CHRI and other civil society representatives argued that there was no scope in 7(3) for forcing the applicant to pay all kinds of fees and charges conceivable under the sun. At the end of the hearing the bench informed us that the decision in this case has been reserved.

In the month of May the CIC decided to rehear the matter on 8th June 2009. A notice inviting submissions on the scope and ambit of sec. 7(3) was sent to all heads of Ministries and PSUs such as Ministry of Personnel, Ministry
of Law, Ministry of Company Affairs, Ministry of Public Enterprises, Chairmen or CMD of the following PSUs: BHEL, BPCL, BSNL, FCI, GAIL, General Insurance Corporation Ltd., IOCL, MTNL, MMTC, National Insurance Corpn.
Ltd., NTPC, ONGC, State Trading Corpn. and SAIL. The notice was copied to me and Shri Roy who had made submissions earlier. From the cc. list it appeared that Information Commissioner Shailesh Gandhi had replaced Information Commissioner Satyananda Mishra on the bench. This hearing was adjourned indefinitely for reasons not made public by the CIC.

Yesterday I received another notice stating that the matter would be reheard by a larger bench on 17th August 2009 at 4.00pm. The hearing will be conducted at the Radhakrishnan Auditorium of the Institute of Secretariat Training and Management (ISTM), Old JNU Campus, New Delhi.

The letter states that the full bench which heard the matter earlier in February decided that the matter should be reheard and all concerned parties including DoPT, Ministry of Public Enterprises and Ministry of Company Affairs and some leading public sector enterprises which are doing commercial activities be invited and notified to file written submissions on the issue and also depute a senior officer to attend the hearing. In other words these public authorities have been invited once again to make submissions on the scope and ambit of sec. 7(3) of the RTI Act. This letter does not contain names of the Information Commissioners who will be on the larger bench. This letter merely states that it has been copied to me and Shri Roy for information. We have not been asked to resubmit our opinion.
Nor does the notice invite suggestions from other members of the general public.

The following questions remain unanswered:

1) Did these select public authorities not make any submissions when they were first notified in May? Are they being given a second opportunity by the CIC? If they do not respond, will the hearing be adjourned again?

2) Why have only a handful of Ministries and PSUs been targeted again?
3) Why does this notice not say that members of the public can also make submissions to the CIC in this matter?

I urge all friends to circulate this email within their networks. Please ensure that you and your friends/collaborators send submissions on the scope and ambit of sec. 7(3) in large numbers to the CIC. Please advise the CIC that the PIO has no power to charge wages, search, collation, compilation at one's whim and fancy under section 7(3). There is no provision for doing so under the RTI Act. You are welcome to use CHRI's submission for formulating
your own arguments. Our submission is copied below. Please send your submissions to the CIC at the address given below.

If you will be in Delhi or can make a trip to Delhi on the date of the hearing: 17th August 2009 at 4. 00 pm at Radhakrishnan Auditorium of the Institute of Secretariat Training and Management (ISTM), Old JNU Campus, please do attend the hearing and oppose any move to empower PIOs to charge exorbitant fees for giving information. If you cannot attend please send your written submission to the CIC. If you are too busy to attend the hearing in person please send by email or post the response suggested below .

Thanks
Venkatesh Nayak
Programme Coordinator
Access to Information Programme
Commonwealth Human Rights Initiative



Suggested Response to be sent by Email/Post:


To,
The Registrar,
Central Information Commission
2nd Floor, 'B' Wing
August Kranti Bhawan
New Delhi- 110 066
Email: pkp.shreyaskar@...> pkp.shreyaskar@...


Date:
Dear sir,
We have learnt from our network partners in Delhi that the Central Information Commission is rehearing the matter regards the scope and ambit of section 7(3) of the RTI Act. We believe that this section should not be misused to collect wages, search and compilation or other similar kinds of fees from RTI applicants. The PIO does not have the power to charge such kinds of fees under the RTI Act. We have enclosed our detailed arguments about the scope and ambit of section 7(3) of the RTI Act. We urge you and other Information Commissioners on the bench to take these arguments into consideration while deciding this matter. We urge you not to interpret section 7(3) in a manner that is violative of the letter and spirit of the RTI Act.
with best wishes,

sincerely,


(Signature of the sender)

CIC orders disclosure of letters of support for the UPA given to the President

CENTRAL INFORMATION COMMISSION

Appeal No.CIC/WB/A/2007/00725 dated 15.5.2007

Right to Information Act 2005 – Section 18

Appellant - Shri T. Asaf Ali

Respondent - President’s Secretariat

Facts:

By an application of 22.7.07 addressed to the President’s Secretariat, Advocate T. Asaf Ali, President, People’s Council for Civil Rights, Pleasant Chateau, Thalassery, Kerala sought the following information:

“Copy of letters given by the Parliamentary Party Leaders of Communist Party of India (Marxist), DMK, RJD and other coalition partners of United Progressive Alliance to the Hon’ble President of India extending support to Dr. Manmohan Singh for forming a Govt. at Centre.”

To this he received a response from then CPIO Shri Nitin Wakankar dated 5.3.07 as follows:

“The copy of letters given by the Parliamentary Party Leaders of the CPI (M), DMK, RJD and other coalition partners of the United Progressive Alliance to the Hon’ble President of India extending support to DR. Manmohan Singh for formation of a Government at the Centre cannot be provided, as these letters were given under a fiduciary relationship between the authors of the letter and the President, therefore, they come under Section 8 (e) of the Right to Information Act.”

Shri Asaf Ali then moved an appeal on 2.4.07 in response to which by an order of 17.4.07 Appellate Authority Ms. Rasika Chaube IFA President’s Sectt. has found as follows:

“1. As regards the first issue pertaining to fiduciary relationship raised by the appellant, it is stated that the CPIO, under section 8 (1) (e) of the Right to Information Act, 2005 has denied the appellant copies of the letters from various Parliamentary Parties sent to the President extending support for the formation of the Government stating that these letters were given to the President in a fiduciary relationship which exists between the authors of the letter and the President. In this context I would like to mention that one of the meanings of fiduciary is ‘something that secures confidence, credentials’. Apart from this, a number of court decisions state that ‘confidential and fiduciary relations are, in law, synonymous and exist whenever trust and confidence is reposed by one in the integrity and fidelity of another’. Also in the case of R. K. Jain vs. Union of India (1993) 4 SCC 55, it has been observed that ‘the President while exercising the executive power under Article 73 read with Article 53, discharges such of those powers which are exclusively conferred to his individual discretion like appointing the Prime Minister under Article 75 which are not open to judicial review’. To furnish documents, which relate to the exercise of the discretionary power of the President would certainly be a breach of confidentiality. Letters that the President may have received are certainly entitled to the greatest protection from public disclosure in order that he may exercise his discretion to his best personal judgment. Another aspect of this matter is that the word ‘fiduciary relationship or confidentiality is a word which emphasizes the interaction of the President and the writer of such letter, therefore, disclosure of such a letter might also be contrary to the concept of the relationship and would be prejudicial to the rights of the authors of the letter’. Hence the stand taken by the CPIO in denying access to these letters under section 8 (1) (e) of the Right to Information Act 2005 is in order and is upheld.

2. As regards the second issue wherein it has been intimated by the appellant that the authors of these letters have themselves disclosed the content of the letters of the media and hence no secrecy or fiduciary relationship is involved. It is stated that the statement made by the appellant is generic moreover compromise if any, of the information which comes under the fiduciary relationship, by one party can in no way be a compelling reason for disclosure by other parities. It is paramount, in keeping with the dignity of the highest office, to ensure that confidentiality of information covered under section 8 (1) (e) of the Right to Information (the fiduciary relationship) is upheld and the same has been rightly done by the CPIO.

3. As regards the third issue that larger public interest warrants disclosure in spite of fiduciary relationship as contemplated in section 8 (1) (e), it is reiterated that this issue stands dismissed in view of the fact that the first issue raised in the appeal stands rejected for reasons given in Para 1 above.”

Aggrieved Shri Asif Ali has moved a second appeal before us with the following prayer:

“It is most respectfully prayed that the records relating to the order appealed against may be called for and after hearing the appellant and all concerned and receiving evidence, if any orders may be passed directing the CPIO, Rashtrapati Bhawan, President’s Secretariat providing access to information sought for under Ext. A-1 (Supra).”

He has grounded this prayer on the following arguments against application of fiduciary relationship in the present case:

“The finding of the First Appellate Authority that the disclosure of such letters might also be contrary to the concept of the relationship and would be prejudicial to the rights of the authors of the letters is against the very basic concept of parliamentary democracy and presidential powers envisaged in the Constitution of India. The First Appellate Authority has lost sight of the fact that the contents of the letters referred to be made known to public through Medias by the authors themselves even before giving letters to President as the decision to extend Dr. Manmohan Singh to form a Govt. to Centre was a political one.”

The appeal was heard through Videoconferencing on 31.7.2008. Following are present:-

Respondents at NIC Studio, New Delhi.

Shri Nitin Wakankar, Deputy Press Secretary.

Ms. Rasika Chaube, IFA.

Shri T. Asaf Ali appellant has sent his written submission and requested exemption from personal hearing. Copy of the written submission was handed over to respondents who were asked to provide a written response by 10th August, 2008 on the basis of which we will come to a decision. On that date of hearing Shri Asif Ali had sought exemption from personal attendance and had sent his written submissions by fax in which he had submitted the following two points for consideration:

1. Whether there was any fiduciary relationship between the President of India and the leaders of various Political Parties who had given letters to the President extending support to Dr. Manmohan Singh for forming a govt. at the Centre ?

2. If at all there was a fiduciary relationship between the President of India and the Leaders of various Political Parties who had given letters of support, whether any larger public interest warrants the disclosure of the information sought for.”

He has then gone on to quote from Black’s Law Dictionary 7th Edition on the meaning of fiduciary relationship and argued as below:

“It is very significant to note that there cannot have any element of secrecy in the communications between the President of India and the Leaders of Political Parties who had given letter of support extending support to DR. Manmohan Singh for forming a govt. at the Centre. Only if the President discloses the contents of the letter of support for his subjective satisfaction for inviting DR. Manmohan Singh, h can justify his action in as much as without the support of those parties Dr. Manmohan Singh was not having majority. Hence the information relating to the letter of support cannot be said to be held in tr5ust under section 8 (1) (e) of RTI Act. In this connection, it has to be noted that every citizen of India is entitled to know under what circumstance the President of India invited Dr. Manmohan Singh who did not have the support of requisite number of MPs for forming a Govt. at the Centre. Therefore, the documents (copy of letter of support) requested for by the appellant cannot be denied relying on section 8 (1) (e) of RTI Act. Further, the contents of these documents were already disclosed to Medias by the authors of the letters themselves. Hence these letters are necessarily to be divulged if we are to have an informed citizenry and transparency of information which are very vital to the functioning of the democratic institutions.”

Finally he has concluded his final arguments with the following statement:

“The First Appellate Authority went wrong in not answering the issue whether larger public interest warrants the disclosure of the information as envisaged in the second limb of Section 8 (1) (e) of RTI Act. The CPIO as well as the First Appellate Authority ought to have held that the left parties had started speaking against the Central Govt. headed by Dr. Singh and ultimately on 9th July, 2008 the Left Parties withdrew support to Dr. Manmohan Singh and the people at large are even now in dark regarding the circumstance under which the left parties extended support to Dr. Manmohan Singh and withdrew support and hence the larger public interest outweigh the disclosure of the documents sought for.’

In compliance with our directions Shri Nitin Wakankar, DS & CPIO in his letter of 5.8.2008 has responded to the arguments of Shri T. Asaf Ali, Petitioner. The gist of his arguments is as follows:

“Information has been denied since its disclosure interferes with the President’s discretionary powers. In a situation which involves the exercise of the President’s discretion under our system of Govt. and in terms of the relevant articles of the Constitution ( Article 73 read with Article 53 and in this case Article 75), the President is to take into account claims while deciding to invite one to the office of the Prime Minister. The letters which he or she may have received or written in this connection are entitled to the greatest protection from public disclosure so that the President may exercise his or her discretion according to his or her best personal judgment. It is for this reason that I was convinced that these letters cannot be disclosed.

Petitioner claims that there is no fiduciary relationship between the authors of the letters and the President.

The Petitioner is looking at a very narrow definition of the meaning of the word ‘fiduciary’. In this regard, the Information Commission has on various occasions dealt with the ambit and scope of the phrase ‘fiduciary relationship’ and have given it a broader interpretation, such as in the case of Shri Milap Kumar Choraria vs. President’s Secretariat on November 16, 2007. In that case, the Commission has said “Generally speaking the fiduciary relationship is a relationship of trust. The Commission in some of its earlier decisions have dealt upon the ambit and scope of the word ‘fiduciary relationship’ and decided that it has to be given a broader interpretation. Taking this aspect into account, there is no doubt that the Communication between the President of India and a Leader of a political party and the correspondence between them concerning formation of a Government is information exchanged in confidence and politically sensitive in nature. An information which is sensitive in nature and if submitted in confidence should, therefore, be deemed to be covered within the ambit of Sec. 8(1)(e) and hence has to be held as exempted”. Therefore, it would be clear that the communications between the leaders of political parties and the President on the issue of formation of the government is information exchanged in confidence and public interest does not warrant its disclosure under this broader interpretation.

Under the provisions of Sec. 8(1)(e) it is for the Competent Authority to satisfy itself as to what the larger public interest warrants. In this case, I was satisfied that the larger public interest would not warrant disclosure of the information, which is held by the President’s Secretariat as confidential and sensitive information.”

He in turn has concluded his arguments as below:

“As for the Petitioner’s arrangement that public interest in the light of the withdrawal of support by Left Parties on July 9, 2008 now outweighs not disclosing the letters – it is submitted that this is a new point in his argument, which was not present in his original application.”

CPIO Shri Wakankar, however, has not commented on the release of the letters to the media by the concerned parties that he states is a new point, which indeed it is.

The appeal was heard by videoconference on 17.6.2009. The following are present :

Appellant at NIC Studio, Kannaur

Sh. T. Asaf Ali, Advocate

Respondents at CIC’s chambers, New Delhi.

Ms. Rasika Chaube, Internal Financial Advisor /F.A.A.

Respondent Ms. Rasika Chaubey submitted that the President’s Sectt. has taken recourse to Article 73 read with Article 53 of the Constitution of India. These articles read as follows:

“(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend

(a) to the matters with respect to which Parliament has power to make laws; and

(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement;

Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State **** to matters with respect to which the Legislature of the State has also power to make laws.

(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution;”

&

(1) The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.

(2) Without prejudice to the generality of the foregoing provisions, the supreme command of the Defence Forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law.

(3) Nothing in this article shall-

(a) be deemed to transfer to the President any functions conferred by any existing law on the Government of any State or other authority; or

(b) prevent Parliament from conferring by law functions on authorities other than the President.”

These articles confer on the President exclusive discretion in certain matters. So in this context the plea of fiduciary relationship according to Ms Chaube falls in place. Shri Asif Ali on the other hand has argued that the President’s Secretariat has wrongly taken shelter under sec. 8(1)(e) and has gone on to specify the kind of relationship that could be treated as fiduciary being that of Doctor & Patient, Husband & Wife, Lawyer & Client etc. He reiterated his quote of Black’s Law Dictionary on the definition of ‘fiduciary relationship’. He has then gone on to argue that it is a right of people to know whether the letters submitted by the political parties mentioned were conditional or unconditional so that they can decide for themselves whether the President was right in entrusting them to form a Government under the leadership of Dr. Manmohan Singh.

DECISION NOTICE

The argument from both sides hinges on the question of whether the documents submitted to the President by the parties over support to the UPA Govt. can be treated as fiduciary in nature. Sub sec. (e) of Sec. 8(1) reads as follows:

8(1)(e)

“information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information”; The first issue, therefore, is for us to determine as to whether there is any relationship between the President and various political parties who have submitted Letters of Support to the President that would qualify for fiduciary. Political parties are independent entities and have a juristic personality of their own. They have no official dealing with the President of India nor do they interact with the President or the President interact with them in the decision making process. The decision to support a particular party or group has been arrived at by the concerned political parties on their own. Similarly, the President has acted on the letters submitted by them and the power of the President to act upon such letters is discretionary.

Relationship’ denotes a pre-existing connection or an association. It may signify a fact or state of being related to one another. It signifies a condition or a character due to being related. The relationship can be either by blood or by affinity. It could also be as a result of allegiance as described by Lexicographers.

A relationship could also be given a wider meaning so as to include even a working relationship. Examples of such relationship are and maybe the relationship existing between a lawyer and a client, a company and its directors, a Company and its employees or even the Government and its employees. It could also be inter-se relationship between members of a society and the society.

In the light of this, the argument that the letters were written to Hon’ble the President in a fiduciary capacity that exists between the authors of the letters and the President seems far fetched. Another relevant fact which has been reiterated emphatically by the appellant and which has been implicitly conceded by the respondent Public Authority relates to disclosure of contents of the letters by the authors of those letters. CPIO Shri Wakankar has not responded to this comment of appellant claiming that it is a new point, which we agree that it is. However, this is not a request for information that had not been sought initially, but only an effort by appellant Shri Asaf Ali to lend verisimilitude to his plea for disclosure.

This does indeed denote that the authors of the letters themselves never intended or sought any confidentiality cover.

To come within the ambit of ‘Fiduciary Relationship’, trust becomes an inalienable component. Viewed in this context, the information provided to the President by various political parties cannot be treated as one emanating from Fiduciary Relationship and that makes Section 8(1)(e) inapplicable to the facts and circumstances of this case.

CPIO Shri Kidwai is, therefore, directed to provide the information asked for by appellant Shri Asaf Ali within 15 working days from the date of receipt of this Decision Notice. The appeal petition accordingly stands allowed. There will be no costs

Reserved in the hearing this Decision is announced in open chamber on this thirtieth day of June 2009.Notice of this decision be given free of cost to the parties.

(Wajahat Habibullah)

Chief Information Commissioner

30.6.2009

Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.

(Pankaj Shreyaskar)

Joint Registrar

30.6.2009

High Court issues notice on disappearance of RTI Activist

Chandigarh, July 16, 2009

Taking serious cognizance of the issue of disappearance of RTI Activist-cum Lawyer of Ferozepur, Kiran Kumar Pandey, the division Bench of the HC comprising CJ Tirath Singh Thakur and Justice K.S. Ahluwalia today issued notices for tuesday to State of Punjab, Principal Secretary, Home Department & DGP, Punjab, on an urgent PIL filed by the RTI Users Association (Punjab, Haryana & Chandigarh Chapter) through Advocate H. C. Arora, the convenor of the association.

The petitioner has sought directions to the respondents to constitute a Special Investigation Team (SIT) under some responsible senior officer of Police Department, from outside Ferozepur District as the Police officers of Ferozepur are not taking the issue of disappearance of the lawyer with the seriousness it deserves. The petitioner stated in the PIL that the incident of kidnapping of Ferozepur lawyer is a serious threat to all the whistle-blower who are exposing corruption in administration.

The petition by RTI Users Association exhaustively referred to the complaint submitted to SP, Ferozepur by Leela Devi, mother of the lawyer, on affidavit on July 13th, stating therein that a Member of the Ferozepur Cantonment Board (Joginder Singh Jindu), and a Junior Engineer, Satish Kumar Arora were annoyed with the lawyer as he had filed a number of RTI Applications for seeking some vital information regarding certain development projects undertaken by the FCB. She also alleged that an attempt was made on the life of the lawyer on July 3^rd also by hitting him with a tractor, which resulted into his hospitalization, but the Police did not register any FIR despite a complaint made by the lawyer. Thereafter Joginder Singh Jindu, Member, FCB, along with 15 to 20 other persons came to the house of the lawyer on July 12^th at about 6.00 P.M., and profusely abused him and threatened him that he would be kidnapped in case he did not withdraw his aforesaid complaint. Later same day, the lawyer went for a walk at 8.00P.M., but never returned to his house.

It has been specifically alleged in the petition that the DSP, Jasbir Singh, as per version of Rekha (sister of the missing lawyer), is rather terrorizing the family of the lawyer, and advising them not to insist on the names of the above two persons, as accused. The accused persons named in the complaint of Leela Devi are not being interrogated; even an FIR has not been registered so far. In these circumstances, the constitution of a SIT under some senior officer of Police department from outside Ferozepur District is imperative, in the interest of justice.

Reacting to the issue, civil rights activist Hemant Goswami said that it was high time and that the Government should now bring in a special legislation to protect the Whistle Blowers, so that the lives of all those public spirited individuals exposing corruption in national interest could be protected.

Hitender Jain, another RTI Activist mentioned that unfortunately the police often fail to react in time and hardly take note of complaints filed by the activists; rather on the contrary they work to protect the interest of the anti-social elements. As a result, the criminal elements gets encouraged to settle scores by committing crimes in the most brazen manner.

Source: Egroup: rti4empowerment AT yahoogroups

RTI Activists preparing for Satyagraha during current Parliament Session

RTI Activists in Mumbai and Delhi are planning a big push during the current session of Parliament to prevent possible amendment of RTI Act 2005, and to force the central government to make meaningful commitments for its proper implementation by DoPT and Information Commissioners. Multi-pronged efforts being made for this are outlined below:

1) Through joint efforts of over a dozen activists in Mumbai and elsewhere, the RTI Charter of Demands in English and Hindi were posted to around 1,100 members of Lok Sabha, Rajya Sabha, Chief Information Commissioners, leaders of political parties etc.

[See photos of eight Mumbai activists preparing 1,100 letters and envelopes for mailing:http://www.box.net/shared/2z1gsuojk7

Download mailing list: http://www.box.net/shared/ymmntzbxua

Read contents of letters sent:http://www.box.net/shared/j6g1pgstf9 ]

The activists who participated in drafting, translating, compiling address lists, printing envelopes, dispatching etc. were: Sunil Ahya, G R Vora, Mohammed Afzal, Krishnaraj Rao, Sumer Bais, Bimal Khemani, Sherley Singh, Prashant Sawant, Ravi Kiran Haldipur, Vijay Chauhan, Sanjay Ghatalia and K N Singh. This mailing campaign happened over three weeks of preparation to coincide with the ongoing session of Parliament. The last batch of around 200 letters is to be posted today at the General Post Office.

2) MP Sanjay Nirupam, who held several meetings with Mohammed Afzal and others, is planning to highlight these issues in Parliament. He is focusing on the issue of improper implementation of Right to Information, and also, persecution of RTI Activists around the country. (Read about seven incidents of persecution: http://www.box.net/shared/ijbb4p2osy )

3) Rakesh Agarwal of Nyaybhoomi, New Delhi, is putting up flex posters/banners in English and Hindi on the backs of 100 auto-rickshaws. They exhort the citizens to defend their Right to Information, as it is a valuable weapon against corruption by bureaucrats and politicians. (See designs of the autorickshaw banners here: http://www.box.net/shared/zyfusyqia4 )

4) Sunil Ahya, Krish and a few other undertrials in Mumbai are planning to get their surety cancelled on Monday, 19th July, and go back to jail as a Satyagraha to press for implementation of their Charter of Demands. By staying in jail, they intend to bring the government to the negotiating table to talk about the Charter of Demands. Legal opinions have already been sought, and the homework is currently going on for their return to jail for a pre-determined or indefinite period.

The possible outcome – success in some degree or failure that may be mild or disastrous – is not a constraint for a Satyagraha, given the willingness to suffer for the cause of RTI implementation. Authorities can prevent us from agitating only if we are keen on sleeping in our own bedrooms after a day of agitating. If we volunteer to sleep on a cold stone floor, eat Spartan jail food and put up with rough treatment, then who can stop us? We want to go beyond idle speculation and exchange of ideas, and find out for ourselves how things can turn out.

Wish us luck in our venture.

Warm Regards,
Krishnaraj Rao
98215 88114

M.P. FAILS, RTI APPLICANT SUCCEEDS

In response to an RTI application, Central Govt. provided the report of Justice Ranganath Mishra Commission on the identification of Dalits belongings to different religions to the applicant.

Mr. Ali Anwar, M.P. (Rajya Sabha) has been demanding this report and discussion on this for the last two years but had not succeeded.

Now, M.P. has asked if the RTI Act is above Parliament.

For many reports, Govt never declares that the report is confidential or will not be made public but simultaneously, does not provide copy of the same or puts it before the Parliament.

Similar is the case with DDA Internal Committee Report constituted to look in to the charges of irregularities in the Housing Scheme draw. All the three concerned offices i.e. DDA, LG, Delhi office or Urban Affairs Ministry are not providing copy of this report. Even Govt. has never said that the report is confidential. However, DDA claims that the report has given a clean chit to the staff.

RTI activists want CCTVs in State Information Commissioner's Office

RTI activists want CCTVs in State Information Commissioner's office to ensure transparency in hearings, so that public authority can be made accountable.

Activists fighting to make Right To Information (RTI) Act a potent tool, are now demanding that all the hearings and interactions that the State Information Commissioner hold with activists, appellants and public be recorded to ensure accountability and transparency in hearings.

This demand is a part of the Charter of Demands that activists have prepared for proper implementation of the RTI Act in Maharashtra.

A delegation of five prominent RTI activists in the city, which Andheri resident Mohammed Afzal led, handed over the same to Chief Minister Ashok Chavan early this week. Accompanying the activists was Mumbai North MP Sanjay Nirupam, who the activists feel is convinced that Right to Information (RTI) Act 2005 was not being properly implemented in Maharashtra.

Says Mohammed Afzal, "There should be a CCTV or digital video recorders to record all meetings, so that a copy of it can be made available to the applicant or any citizen on payment of a small fee, say Rs 50." In fact, Afzal also happens to be one of the 11 activists that Mumbai Police arrested on the evening of May 19 and jailed for two days for allegedly trespassing and rioting at the office of the Chief State Information Commissioner (SIC) Suresh Joshi. Adds Afzal, "Had there been a recording of that meeting, such gross injustice would not have been meted out to 11 activists, who have been crusading to strengthen the RTI Act. If there was a CCTV used, applicants, activists and even the bureaucrats would feel safer, as every action can be put on record, when required. No Information Commissioner should have an objection with this suggestion until and unless he has something to hide."

States Krishnaraj Rao, "We are happy that the Chief Minister, State Govt. and even the Central Government are showing keenness to ensure proper implementation of the RTI Act, which is a powerful tool in the common man's hand. The CM has assured us that he will look into the matter, which is encouraging. The crusade we have initiated shall not stop till we ensure proper implementation of RTI Act, and stop the bureaucratic abuse of this important Act."

Asserts MP Sanjay Niruapm, "It's a priority for our Government to correct the faulty implementation of RTI Act. We have taken up the issue with the CM, along with these activists, and will keep following it up at the highest level if required."

SOME IMPORTANT POINTS IN THE CHARTER

Maharashtra Government must direct every Information Commissioner (IC) to serve show-cause notice to Public Information Officer (PIO) along with notice of hearing. The purpose of hearing is to determine whether the PIO and the public authority acted diligently under the RTI Act and if not, what penalty and disciplinary action is to be imposed. The purpose of hearing is not to enter into discussions, negotiations and grievance redressal.

· Whatever transpired during the hearing between the Information Commissioner, Public Information Officer, Appellant authority and the applicant -- it has been seen many a times that the final order does not reflect the hearing proceedings. A Speaking Order (gist of the facts during the hearings) is very much required for the applicant.

· Maharashtra Govt. must put in place a mechanism, whereby if PIO and public authority do not comply with IC's orders, disciplinary action is automatically initiated against both PIO and head of the public authority, and the same is recorded in their Annual Confidential Report and Service Book.

· Maharashtra Govt. must set up clear and realistic mechanisms for implementation of Section 4 of RTI Act (suo moto disclosure of information) by each public authority.

· If it is discovered that the method of selection of any Information Commissioner was flawed, Maharashtra Govt. must set aside the appointment of that Information Commissioner as being unlawful ab initio.

· Maharashtra Govt. must ensure transparency in new appointments of SICs.

virat.singh@timesgroup.com
-------------------------------------------------
Report in 4th July 2009 Bombay Times (West Mumbai supplement circulated from Bandra to Virar)

Dead man comes alive using RTI

http://timesofindia.indiatimes.com/articleshow/msid-4727008,prtpage-1.cms

2 Jul 2009, 0650 hrs IST, Paul John, TNN

AHMEDABAD: Sulochna Shah, 70, could not believe her eyes when a letter from the Records of Rights (RoR) of the revenue department in July 2006 declared her a widow and that Champaklal, her husband, had four more sons and daughters other than her six children!

But here was her husband , who was alive and sitting beside her and pleading that all that the four new "stepchildren" in the revenue department letter did not exist.

Champaklal, like many others, was caught in the web of lies spun in the revenue records as part of a major land scam masterminded by land sharks in the state.

It's one of the ways land sharks in Ahmedabad, conniving with village talatis, buy huge tracts of agricultural land without possessing legal farmers certificates.

Without wasting any time Champaklal filed an RTI application to know exactly how it happened. After a lot of resistance the revenue department parted with the records. It was an eyeopener for the deputy collector of Viramgam.

A local talati of Dethraj taluka, in Vasna Saniyar village helped miscreants sharing the same 'Champaklal' surname, get their names included as inheritors in revenue records of Shah. These miscreants were then provided farmer's certificate. The deputy collector noticed that the talati had used the same modus operandi in records of other people, alerted the district development officer (DDO) of the scam in 2007 and requested an enquiry.

The matter is hushed up and the DDO is yet to react to the letter. "People owning land or any sort of property should file RTI to ensure that their records are straight--almost every year. This would ensure that there is no meddling in the revenue records. Such cases happen in the case of large land owners. These miscreants just need a farmer's certificate to start with, then buy agriculture land in surrounding areas.

After buying huge tracts they will forge a "power of attorney" document and enter their names as inheritors and even sell of your land," says Champaklal. The revenue department is yet to institute an inquiry into the incident after Shah's RTI application. The department's reluctance is plausible as land holdings of all those who are found possessing farmer's certificates by making such false entries would be considered null and void under section 84 (c) of the Tenancy Act, the land would be seized by the government or returned to the real owner.

On July 26, 2006 Sulochna Shah, Champaklal's wife, receives a letter from revenue dept declaring her a widow Champaklal files RTI to find out about the entries made in the revenue records for Dethraj taluka The RTI also reveals similar cases in the revenue records Deputy collector of Viramgam pranth requests the district development officer (DDO) to initiate an enquiry into the scam.

Mayawati Appoints Tainted Official as CIC: RTI Activists Cry Foul

RTI activists have joined hands in their fight against the appointment of a tainted IAS (PCS promotee) Ranjit Singh Pankaj as as the state’s chief information commissioner (CIC).

Uttar Pradesh Chief Minister Mayawati is now drawing flak for appointing an alleged tainted bureaucrat

In a related development lawyer Himanshu Shekhar Awasthi, in his PIL before the Allahabad High Court has questioned Pankaj’s appointment by Mayawati Goverment citing his tainted track record.

Pankaj’s stint as district magistrate of Gorakhpur had come under cloud over appointment of 300 safai karamcharis (sweepers) not very long ago.

Awasthi has also questioned the appointment on the ground that the selection had been made in the absence of the leader of opposition in the state assembly, who was an essential part of the three member selection committee headed by the chief minister. In his PIL he has also pointed out the objections made by the Leader of Opposition Shivpal Yadav were simply ignored by the chief minister. The bench comprising Justices Rajeev Sharma and Satish Chandra fixed July 10 as the date for the next hearing.

Remove Info Commissioners: RTI Activists

Analysis of the Orders of Maharashtra CIC Dr Joshi

Five Examples with Analysis
of Mandatory Sections of RTI Act 2005
violated by Orders

You may download the below-mentioned orders and analysis in word or pdf format from here: http://www.box.net/shared/go8sxhi4yi

EXAMPLE 1:

Appeal No.2007/1263/02

Shri P.P.Talati, Aderbad, Flat no.43,

34, N.S.Patkar Marg, Mumbai 400 007. .. Appellant

V/s

Appellate Authority & Dist.

Deputy Registrar Coop Societies,

Malhotra House, Mumbai .. Respondents

GROUNDS

The hearing in respect of 2nd appeal filed by Mr. P.P.Talati of Mumbai against the order of District Deputy Registrar dt. 21.3.2006 was heard on 8.10.2007 when the Appellant, Mr. Talati, PIO and Appellate Officer were present.

The PIO by his letter dt. 3.2.2006 has informed the Appellant in response to his application under RTI Act, 2005 that his application has been sent to his Cooperative Society with the directions that the required information should be given to Mr. Talati since the information sought is not available in their office. The intimation of this was given to the Appellant. This was confirmed in the appeal and it has been specifically mentioned that if the Appellant does not receive the information from the Society a complaint to that effect should be made to the Deputy Registrar. During argument the Appellant insisted that he should get the information either from the Deputy Registrar’s office or from the Federation.

Under RTI Act, 2005 if the information is held by another public authority the public authority to which such application is made should transfer the said application to the concerned public authority. In his case the application has been sent by the PIO of Deputy Registrar’s office to the concerned Cooperative Society with the direction to give the information to the Appellant i.e. as per the provisions of the Act. The Act gives the right to the Appellant to get the information but he cannot insist that I must get the information from a particular office. In the instant case if he has not received the information from his Coop. Housing Society he should bring this fact to the notice of the concerned Deputy Registrar who will intervene and see that the required information is given to the Appellant.

ORDER

Appeal is thus disposed off.

(Dr. Suresh V. Joshi)

Chief Information Commissioner

Place: Mumbai.

Date: 9.10.2007

ANALYSIS OF EXAMPLE 1:

Dr Suresh Joshi’s Order is based on a perverse reasoning that transfers the onus of RTI compliance from Dy. Registrar of Cooperatives — a public authority — to the cooperative housing society, which is not a public authority. it absolves the PIO at Dy. Registrar of Cooperatives of responsibility, and passes the buck to nobody in particular, as Cooperative Housing Societies can have no “PIO”.

The correct section applicable is section is 2(f) “information relating to any private body which can be accessed by a public authority under any other law for the time being in force.”

Instead, Dr Joshi invokes Section 6(3) with malafide intent to dilute the responsiility of the Deputy Registrar of Cooperatives.

6(3): “Where an application is made to a public authority requesting for an information,—

(i) which is held by another public authority; or

(ii) the subject matter of which is more closely connected with the functions of another public authority,the public authority, to which such application is made, shall transfer the application or such part of it as may be appropriate to that other public authority and inform the applicant immediately about such transfer...”

SUMMARY: This order violates sections 2(f) and 20(1).

EXAMPLE 2:

Appeal No.2007/1363/02

Shri Kishor Totaram Lulla, Abhyankar Complex,

Amrai Road, Sangli 416 416. .. Appellant

V/s

Appellate Officer and Deputy Secretary .. Respondent

Food & Civil Supplies Department, Mantralaya, Mumbai 400 032.

GROUNDS

Shri K.T.Lulla had sought the following information under RTI Act, 2005 on 28.8.2006 from the PIO & Under Secretary, Food & Civil Supplies Department, Mantralaya, Mumbai for the period 2001-2002 to July 2006:

“As per section32(7) of the MVAT Act and 38(6A) of the BST Act, 1959, the amounts forfeited and recovered is to be transferred to the Consumer Protection and Guidance Fund. It is to be utilised for the purpose of Consumer Awareness. In this connection following information may please be given:

i) How much amount is forfeited in every above mentioned year in the State of Maharashtra by the Sales Tax Department. This information may have been received by you from the Commissioner of Sales Tax, Maharashtra State or by the Finance Department

ii) How much amount is transferred in the above mentioned fund in every year.

iii) Details of utilisation of the said fund as per Sec. 32(7)(iii) of MVAT Act and 38(6A)(iii) of the B.S.I.Act;

iv) Copies of guidelines given by State Government in respect of the above.”

The PIO vide letter dt. 15.11.2006 gave the available information to the Appellant but Appellant filed 1st appeal u/s 19(1) with the Appellate Authority, Consumer Protection Department, F&CSD, Mantralaya, Mumbai 32 stating that the PIO has not given the details of utilisation of excess fund. Having not heard anything from the 1st Appellate Officer, the Appellant filed 2nd appeal with this Commission on 2.5.2007 which was heard on 26.9.2007 when the Appellant, Shri Lulla and Shri T.R.Dhaygude and Shri D.M.Nayak, US, F&CSD & Consumer Protection Department, Mantralaya, were present.

At the time of hearing the Appellant stated that the PIO has given incomplete information. The Respondents were directed to give the figures regarding Maharashtra Consumer Protection & Guidance Fund received from the office of the Accountant General, Maharashtra State for the period 2001-2002 to 31.7.2007 within 10 days to the Appellant to which they agreed. This has been complied by the department very next day on 27.9.2007.

ORDER

Appeal is thus disposed off.

(Dr. Suresh V. Joshi)

Chief Information Commissioner

Place: Mumbai.

Date: 19.10.2007

ANALYSIS of example 2:

Dr Joshi’s Order is bad in law on two counts:

I. DELAY is condoned without application of mind:

Date of Application was 28.8.2006. Date of PIO’s reply was 15.11.2006.

As per Section 7(1), the deadline for reply was 28.9.2006. PIO’s reply was delayed by over 45 days. This eligible to be fined Rs 250x45 = Rs 11,250

Section 7(2) clearly states, “If the PIO fails to give decision on the request for information within the period specified under sub-section (1), the PIO shall be deemed to have refused the request.

Further, Section 19(5) states: In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the PIO who denied the request.

Finally, Section 20(1) states: Where the Information Commission, at the time of deciding any complaint or appeal is of the opinion that the PIO has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 ... it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished...

But as per the Order passed, Dr Joshi neither sought a justification under Section 19(5), nor did he even apply his mind to penalties for delay/denial under Section 20(1).

II. PROVIDING INCOMPLETE INFORMATION is also condoned without application of mind.

The last para of the “grounds” establishes that Dr Joshi upheld the appellant’s contention of incomplete information, which is also punishable under Section 20(1). But instead of asking the PIO to justify his actions as per section 19(5) and last para of 20(1), Dr Joshi disposes off the appeal without even applying his mind to the mandatory penalty clause.

SUMMARY: This order violates sections 7(2), 19(5) and 20(1).

eXAMPLE 3

Appeal No.2008/3245/02

Shri. Harinarayan S. Mishra

Room No. 2, Bldg. No. 4, Praijat Co-op. Housing. Society,

New MHADA Colony, Sion-Pratiksha Nagar,

Mumbai – 400 022. ..… Appellant

V/s

First Appellate Officer cum Dy. Commissioner of Police,

Zone III, Central Control Office, Bawla Compound,

Dr. B. A. Road, Byculla (E), Mumbai. ….. Respondent

Public Information Officer cum Asst. Commissioner of Police,

Zone III, Central Control Office, Bawla Compound,

Dr. B. A. Road, Byculla (E), Mumbai.

GROUNDS

The Appellant Shri. Harinarayan S. Mishra has made unsigned second appeal on 30.01.2008 to the Commission on the following grounds.

a) The Commission be pleased to direct the concerned person to give the Accidental Death Report (A.D.R.) of Santosh Goswami.

b) The concerned person be punished for not giving the A.D.R. within stipulated period.

c) Disciplinary action pleased be initiated against the concerned person for misguiding the appellant by giving incorrect information.

The hearing of the appeal was arranged on 24.10.2008 in the office of the Commission. At the time of hearing the Appellant, the Public Information Officer and the First Appellant Officer, were present.

The Appellant had filed the application on 09.10.2007 to the Public Information Officer for all Emergency Police Register record of 13.03.2007 of Register maintained at K.E.M. Hospital’s Police Counter and the Accidental Death Register records etc. The

Public Information Officer has provided information on 08.11.2007 to Appellantexcept information on the Accidental Death Register on the ground that it was submitted to the Court.

As the incomplete information was provided by Public Information Officer, the Appellant had made first appeal on 07.12.2007. The First Appellate Officer on giving hearing on 19.12.2007 had passed the order on 19.12.2007 itself. It is stated in the order that the First Appellate Officer has no power to take action on Public Information Officer for giving misleading information. In view of that he has recommended for taking action against the Public Information Officer and disposed of the appeal.

The Appellant has made unsigned second appeal on 30.01.2008 on the grounds stated in para one above. The Commission has heard both the parties and gone through all the papers available before the Commission.

It is seen that later on expected information is made available to the Appellant. This fact has also been taken note by Addl. Senior Judge Bombay at Sewree in his order dated 18.12.2007. As the appeal is unsigned, the Commission is passing following order.

ORDER

The Appeal is dismissed.

(Dr.S.V.Joshi), Chief Information Commissioner, Maharashtra.

Place: Mumbai

Date: 31.12.2008.

ANALYSIS OF EXAMPLE 3:

Dr Suresh Joshi’s Order is bad in law. PIO’S DELAY & PROVIDING INCOMPLETE INFORMATION is condoned without application of mind.

The Order mentions that even the First Appellate Authority noted that PIO had given misleading and incomplete information, and recommended action in his Order. But Dr Joshi does not even seek the PIO’s explanation. Based on the twisted logic that the PIO gave the information “later on” on some indeterminate date, and on the technical grounds that the appellant had not signed the second appeal, Dr Joshi does not apply Section 19(5) and Section 20(1). He dismisses the appeal.

Section 19(5) states: In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the PIO who denied the request.

Section 20(1) states: Where the Information Commission, at the time of deciding any complaint or appeal is of the opinion that the PIO has,

... knowingly given incorrect, incomplete or misleading information ... or obstructed in any manner in furnishing the information ... it shallimpose a penalty of two hundred and fifty rupees each day till application is received or information is furnished...

EXAMPLE 4:

Appeal No.2008/3225/02

Shri.Moin Akhter Qureshi

Baitul Akhter Bldg., First Floor, Room No.18 /19,

Above Delhi Darbar Hotel, Patthe Bapurao Marg,

Mumbai – 400 004. …Appellant

V/s

First Appellate Officer cum Asst.Municipal Commissioner

Office of the “D” Ward, M.C.G.M.,

Nana Chowk, Mumbai – 400 007. …. Respondent

Public Information Officer cum Asst. Engineer,

(Building & Factories), Office of the “D” Ward, M.C.G.M.

Nana Chowk, Mumbai – 400 007.

GROUNDS

The appellant has made second appeal to the Commission on 6-12-2007 on the ground that the Public Information Officer has given false reply and further order dated 30-8-2007 which was given by the First Appellate Authority to give reply and document within seven days is not followed by the P.I.O., therefore penalty be imposed on P.I.O.

The hearing of the second appeal was fixed on 22-10-2008 in the office of the Commission. At the time of hearing the Appellant, the P.I.O. and the First Appellate Officer were present.

The appellant has asked for the details information on 14 points regarding notices issued to 15 illegal construction in Baitul Akhtar Building, Mumbai – 400 004 under his letter dated 11-6-2007. The nature of information asked for is like action taken after issuing notice with number of notice, whether illegal construction have demolished, if yes or no, why, whether the party has himself removed illegal construction, whether court injunction has brought, what steps have been taken to vacate court injunction, no. of notices pending to prosecute in the Hon. Metropolitan Court, action deem fit for lowering of plinth level, action deem fit for removed of brick partition wall, notice pending for demolition, why action has not been taken on the lowering of plinth level of Yadgar Punjab Hotel and Delhi Darbar Hotel and illegal window of Yadgar Punjab Hotel, copy of fresh notices, if issued in above complaints, copies of correspondence done with various departments such as Legal department, Police department, Municipal commissioner, Addl. Municipal commissioner (City), Chief Officer (Enquiries) V.O.S.D., D.M.C. zone – 1, A.M.C. “D” or any other department and documents and reply submitted as proof after notice were served on occupier or illegal constructor etc.

The P.I.O. under his letter No. ACD/9325/B, dated 6-7-2007 has informed to the appellant that particular of information required by appellant does not contain any details about any notices and hence no information can be furnished to the appellant.

Being aggrieved by the letter of the P.I.O. the appellant has made first appeal on 23-7-2007 to the First Appellate Officer requesting to him to imposed penalty according to the R.T.I. Act, 2005. The First Appellate Officer has arranged hearing on 23-8-2007.

The appellant and the P.I.O. were present for hearing. As the First Appellate Officer was not satisfied with the reply given by the P.I.O., he has passed the order on 30-8-2007 to provide proper information as requested by the appellant within seven days and thus first appeal is disposed off.

The appellant has made second appeal on 6-12-2007 to the Commission as the P.I.O. has not given reply and document to the appellant as per the order passed by the First Appellate Officer. The appellant has also requested to impose penalty on the P.I.O.

At the time of hearing of the second appeal on 22-10-2008, the Commission has heard both parties and gone through the documents available in the office of the Commission. It is also brought to the notice of the Commission that the appellant has made complaint letter on 1-1-2008 to the various officers / department on the same subject which is replied under letter dated 28-1-2008.

On going through the papers available in the office of the Commission and on hearing of both the parties, it is observed that the P.I.O. has not given required information to the appellant even after order of the First Appellate Officer which is negligence on the part of the P.I.O. The P.I.O. should henceforth obey the order of the First Appellate Officer under the R.T.I. Act, 2005.

If appellant is still not satisfied with the information given by letter dated 28-1-2008 the P.I.O. should give inspection of the concerned files to the appellant and give him copies of the documents required by him within a period of one month from the receipt of this if the applicant has not taken inspection 15 days before. The applicant should note also that he is entitles to get the information as per the definition of information in the Act. The following order is passed in the matter.

ORDER

The appeal is disposed off.

(Dr. Suresh V. Joshi)

Chief Information Commissioner, Maharashtra.

Place: Mumbai

Date: 07.01.2009.

ANALYSIS OF EXAMPLE 4:

Again, this Order of Chief SIC
Dr Suresh Joshi is totally illegal under RTI Act 2005.

He condones PIO’S TOTAL DENIAL OF INFORMATION without application of mind:

Even the First Appellate Authority had ordered PIO to give the requested information. But PIO persisted in denial of information.

Dr Joshi evidently did not even ask for PIO’s justification as mandated by Section 19(5). He disposed off the appeal without considering the mandatory penal provisions, with only an instruction to PIO to give the requested information in a month if appellant has not taken inspection in 15 days time.

It is significant that the information requested pertains to demolition of 15 illegal constructions. Dr Joshi’s strange Order raises suspicions of undue favours and corrupt considerations.

SUMMARY: This order violates sections 7(2), 19(5) and 20(1).

EXAMPLE 5:

Complaint No.2007/225/02

Shri Julio Rebeiro,

C/o Indian Music Industry, 266, Kaachwala Building,

2nd floor, Dr. Annie Besant Road, Opp. Passport Office,

Worli, Mumbai 400 030. .. Complainant

V/s

Public Information Officer,

Office of CEO, SRA, Griha Nirman Bhavan,

Bandra (East), Mumbai 400051. .. Respondent

GROUNDS

Shri Julio F. Rebeiro had given application u/s 6 of RTI Act, 2005 to the SPIO, SRA, Mumbai on 28.6.2007 seeking the following information:

“ Certified true copies of entire file of Project under construction at village Juhu, Taluka Andheri, having CTS No.35 and its adjoining land, etc. near JVPD Circle – K/West Ward – Developer: M/s Kunal Builders and Developers, A/3, Everest Building, Tardeo, Mumbai 400034 – Society: Shri Juhu Taj CHS – SRA IOD Ref. No. SRA/ENG/540/KW/MHL/AP, dt.20.5.2004 and C.C. Ref. SRA/ENG/540/KW/MHL/LOT, dt. 30.12.2004.”

The said application was received by the SRA on 4.7.2007 and since Mr. Rebeiro did not receive the information within a period of 30 days he filed complaint application u/s 18 of RTI Act, 2005 with this Commission on 9.8.2007 which was received in this Commission on 14.8.2007. Enquiry into this complaint was conducted on 31.8.2007 and 1.9.2007 when Mr. Kewal Semlani on behalf of Mr. Julio F. Rebeiro and Mr. Tidke, Dy. Collector and Shri R.R.Tripathi, Assistant PIO, SRA were present. The Assistant PIO explaining the delay has stated that the information sought through this application was voluminous more than 300 number of documents and several number of approved plans and they had taken considerable time to take out xerox and prepare the set. Moreover, it has been pointed by the Asst. PIO that criminal investigations are in progress by the Economic Offence Wing of CID in respect of this case, hence the information cannot be furnished u/s 8(1)(h) of RTI Act, 2005 and, therefore, though the documents required by the Appellant were kept ready, were not issued. He, however, rendered apology for not informing the Appellant within stipulated time.

Mr. Semlani who represented Mr. Rebeiro stated that such type of plea could be taken by the Police Authorities who are investigating the case, however, the same plea cannot be taken by the non-investigating authority like SRA. He also pleaded that since there has been delay in giving the information the Appellant desires that penalty should be imposed on the PIO.

Section 8(1)(h) of the Act is as follows: “8(1)(h) – information which would impede the process of investigation or apprehension, or prosecution of offenders;” Sheri Rebeiro, the Applicant himself was Commissioner of Police, Mumbai, Director General of Police, Government of Punjab, held gubernatorial posts and eminent personality. If the required information is in such hands, by no stretch of imagination it would be surmised that this would impede the process of investigation or apprehension or prosecution of offenders.

Since such an eventuality must have arisen in respect of PIO for the first time the predicament of PIO is also understandable. However, he ought to have informed the applicant about the possible delay in furnishing the desired information. In this case, the PIO ought to have sought the guidance from the CEO, SRA as regards whether such information should be given or not. In this case, however, he simply did not take any initiative and put-forth this argument only at the time of hearing before this Commission. Since the information has been kept ready, it should be immediately given to the Complainant without charging any fee since there has been delay on the part of the PIO in giving the information. Since this is a peculiar case, the Commission is imposing penalty of just Rs. 1,000/- which would serve the purpose of enforcing time limit for giving the information under RTI Act.

ORDER

(a) Information should be given to the Applicant free of cost immediately;

(b) PIO should pay a penalty of Rs. 1,000/- for his lapse.

The CEO, SRA should see that this amount of Rs. 1,000/- is recovered from the salary of PIO for the month of September 2007 paid in October 2007 and deposited under proper head prescribed by the Government and compliance be reported to the Commission by 15th October, 2007.

(Dr. Suresh V. Joshi)

Chief Information Commissioner

Place: Mumbai.

Date: 1.9.2007

ANALYSIS OF EXAMPLE 5:

This is a high-profile case where Julio Ribeiro, represented by Kewal Semlani, was the respondent. The matter was concerning illegal construction work involving crores of rupees.

Dr Suresh Joshi was clearly on the horns of a dilemma.

Dr Joshi condoned PIO’S NON- REPLY, WHICH AMOUNTS TO DENIAL OF INFORMATION AS PER SEC. 7(2), by pleading that this is a “peculiar case”.

Nonetheless, to avoid antagonizing Kewal Semlani and Julio Ribeiro, he imposed a token penalty of Rs 1,000.

Dr Joshi’s addressed the PIO’s objection under section 8(1)(h) with specious arguments: “Shri Rebeiro, the Applicant himself was Commissioner of Police, Mumbai, Director General of Police, Government of Punjab, held gubernatorial posts and eminent personality. If the required information is in such hands, by no stretch of imagination it would be surmised that this would impede the process of investigation or apprehension or prosecution of offenders.”

As the information requested pertains to large-scale illegal construction being investigated by CID’s Economic Offence Wing (EOW), Dr Suresh Joshi’s peculiar Order raises suspicions of undue favours and corrupt considerations.

SUMMARY: This order violates sections 7(2) and 20(1) and looks fishy, as Dr Joshi pulls off a balancing act.

Do you feel that the above analysis of Dr Suresh Joshi’s Orders is correct? Or do you feel that it is unfair or illogical?

Please feel free to comment, and also to email other obviously bad Orders of other Information Commissioners at SIC and CIC.

Warm Regards,

Krish

98215 88114

sahasipadyatri@gmail.com

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