In recent years, whenever Parliament sessions are held, the data tabled by the Union Government with regard to the size of bad loans (non-performing assets or NPAs), the volume of loans written off, the total amount of recoveries from borrowers, names and numbers of wilful defaulters, hits the headlines. Readers discuss it for a few days and then forget all about it until more such data becomes public in subsequent sessions of Parliament. 

Questions are rarely raised about accountability for this state of affairs. Rarely have Parliamentarians asked whether the management boards of the public sector banks (PSBs) are functioning at full strength, as per law. This research exercise goes into the vacancies on the management boards of 12 public sector banks (PSBs) as of 1900hrs on 08 January, 2023.
The data about incumbent Directors and vacant posts is sourced from the website of the Financial Services Institutions Bureau (FSIB). Until 01 July, 2022 FSIB was known as the Bank Boards Bureau (BBB). It was established by the Union Government in 2016 pursuant to the recommendations made by the Committee to Review Governance of Boards of Banks in India headed by Prof Pulin B Nayak former Director, Delhi School of Economics. 

FSIB publishes both incumbency and vacancy data with regard to the management boards of PSBs and other designated public sector financial institutions like the LIC, EXIM Bank, other government-controlled insurance companies and NABARD. FSIB is responsible for recommending suitable candidates to the Union Government for appointing whole-time Directors and non-executive chairpersons of public sector financial institutions including public sector banks (PSBs). Their recommendations are also accessible on their website.
FSIB regularly updates the incumbency and vacancy data for all financial institutions that are covered by its mandate. This data collection exercise began in December 2022. By the time the drafting of this note began late last week, some entries in both categories had changed. So readers may be rest assured that the findings below are based on the latest data that FSIB has made public. The data table compiled from the information uploaded on FSIB’s website is in the 1st attachment below.

Main findings from the data analysis

• Taken together, the number of incumbent Directors and vacant posts on the PSB boards comes to 186 posts. Out of this only 122 posts have been filled up as on date;
• Out of these incumbent Directors 109 are men, only 13 of them are women (10.66%). Canara Bank, Indian Overseas Bank, Punjab and Sind Bank and Union Bank of India have two women Directors each. Bank of Maharashtra, Central Bank of India and UCO Bank do not have any woman Director on their Board. The remaining five PSBs have one woman Director each on their respective Boards;
• A total of 64 posts of Directors are vacant in the 12 PSBs. This is more than one third (34.41%) of the 186 posts that ought to have been filled up;
• The largest and the richest among the PSBs- State Bank of India has seven vacancies on its Board. Bank of Maharashtra and Central Bank of India also have seven vacancies each;
• Bank of India and UCO Bank have six vacancies each on their respective boards. The remaining banks have between four to five vacancies each;
• None of the management boards PSBs have the full complement of Directors as required by law;
• The oldest vacancy is from September 2009 in Punjab and Sind Bank and the most recent vacancy is from 01 January, 2023 in Canara Bank. The remaining vacancies have arisen between 2014 and 2022. Seven posts fell vacant in 2014, five in 2015, 13 in 2016, five in 2017, three in 2018, eight in 2019, 12 in 2020, four in 2021 and two in 2022
• It is interesting to note that at least 13 vacancies continue to exist from before 2016- the year in which the BBB now rechristened as FSIB was constituted. This number might increase if the exact date on which the BBB became fully operational;
• Category-wise, there are 12 vacancies each in the Officer Employee Director and Workmen Employee Director category. In other words, none of the 12 PSBs have made appointments to these posts as required by law. Officer Employee Directors and Workmen Employee Directors are appointed under Sections 9(3)(f) and 9(3)(e) respectively, of The Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. These statutory provisions are fleshed out in paragraph 3 of Chapter 2 of the Nationalised Banks (Management and Miscellaneous Provisions) Scheme, 1970 issued under the 1970 Act. More on this point in the next segment;
• With the exception of the State Bank of India, 11 PSB boards do not have a non-official Director with Chartered Accountancy specialisation. Banking experts point out, this Director is the Chairperson of the Bank’s Audit Committee which vets the decisions of these banks, especially with regard to lending operations. More on this point in the next segment;
• The posts of non-Executive Chairman are vacant in six PSBs, namely, Bank of India, Bank of Maharashtra, Central Bank of India, Indian Bank, Indian Overseas Bank and UCO Bank;
• Indian Overseas Bank and Punjab and Sind Bank have one vacancy each of the post of Shareholder Director; and
• The post of the Managing Director and Chief Executive Officer (MD & CEO) fell vacant in Canara Bank last week.

Implications of the vacancies

The above findings make it amply clear that every PSB is functioning with truncated management boards. Vacancies identified above comprise between 30-50% of the board strength in each PSB. The posts of workmen and officer employee Directors are intended to give representation to internal bank staff so that they may bring their day-to-day expertise to the Board for arriving at decisions, especially with regard to giving out loans, in a well thought out manner. While only four vacancies in these two categories are a legacy from the UPA Government, the remaining 20 are from the NDA-II and NDA-III.
It is not as if the Nationalised Banks (Management and Miscellaneous Provisions) Scheme, 1970 (the Scheme) does not contain guidance for the purpose of filling up these vacancies. Chapter II of the Scheme provides for a clear procedure for inviting nominations from the employees unions and officers’ associations to fill up positions of the Workmen Employee Directors and the Officer Employee Directors respectively. There are clearly laid down procedures for identifying the appropriate Union or association that is entitled to make these nominations. 

There is also a clear procedure for certifying the Union or Association as the appropriate one for making these nominations. If the verification process is not completed, the Union Government has the power to nominate an employee and an officer as the Director of the Bank. Similarly, there are clear provisions in the Scheme for the Union Government to appoint non-official Directors as per prescribed specialisations. Nevertheless, there is a significantly large number of vacancies on the management Boards of all PSBs.
The All India Bank Employees’ Association submitted a memorandum to the Union Finance Minister, in September 2021, drawing her attention to 91 vacancies of Director posts under various categories. A scanned copy of AIBEA’s letter is in the 2nd attachment below. The only solace is that the number of vacancies has come down by about 30% in 2023, but that is not enough as more than a third of the Director’ posts remain vacant today, as the findings above demonstrate.

Gender representation on PSB boards requires urgent attention as there is no dearth of eligible and qualified women candidates

Last year, the All India Bank of Maharashtra Employee Federation moved the High Court at Bombay seeking directions to be issued to the Union Government and the Bank of Maharashtra to appoint Workmen Employee Directors to the latters’ Board. The Court has issued notice to the Respondents and the proceedings are going on. The outcome of this litigation is awaited. The Writ Petition related documents are in the 3rd attachment below.

Pulin Nayak Committee’s recommendations

In May 2014, the Pulin Nayak Committee to Review Governance of Boards of Banks in India made the following recommendations in its report to fill up the PSB Board vacancies:
“Recommendation 5.5: It is feasible and vital that in Phases 1-3 the selection process is initiated in good time to complete the appointments approval before the expiry of tenures of the incumbents. Delays presently occur because of vigilance clearance. It is recommended that this clearance be conducted only at the stage when candidates are short-listed, and not resumed after the Selection Committee recommends the candidate for appointment.”

Further, according to the April 2021 instructions issued by RBI, the Audit Committee of every commercial bank including PSBs must be constituted as follows:
“4. The ACB shall be constituted with only non-executive directors (NEDs). The Chair of the board shall not be a member of the ACB. The ACB shall meet with a quorum of three members. At least two-thirds of the members attending the meeting of the ACB shall be independent directors. The ACB shall meet at least once in a quarter. The meetings of the ACB shall be chaired by an independent director who shall not chair any other committee of the Board. The Chair of the ACB shall not be a member of any committee of the board which has a mandate of sanctioning credit exposures. All members should have the ability to understand all financial statements as well as the notes/ reports attached thereto and at least one member shall have requisite professional expertise/ qualification in financial accounting or financial management [e.g., experience in application of accounting standards and practices, including internal controls around it].”

As stated above, the Non-Official Director (Chartered Accountant) is the Chairperson of the PSB’s Audit Committee. With such a large number of vacancies on PSB Boards, it is but obvious the Audit Committees would not be able to function according to the management norms laid down.

Conclusion

Whenever one reads news reports of hundreds of thousands crores worth of loans going bad year after year, banks writing off loans, borrowers turning wilful defaulters, the launch of debt recovery proceedings at various fora, the value of instruments and things pledged as collateral security for loans depreciating in value inexplicably, the commencement of bankruptcy proceedings in relation to high volume borrowers, etc. etc., one wonders, where does the private citizen who deposits her/his hard earned money in PSBs figure in this scheme of things. Political parties of every hue that find themselves in the Opposition at different points of time, allege that the phenomenon of crony capitalism encouraged by the Government of the day is responsible for the huge drain of public resources out of PSBs.
To add insult to injury, taxpayer funds are deployed to grease the wheels of the State’s loan recovery proceedings. Yet, citizen depositors whose hard earned savings are the source of all lending operations of banks, both public and private, do not have any representation on their Boards. I have learnt that there are no functional depositors associations anywhere in the country either. 

In the absence of mobilised bargaining power, the people who finance banks directly (through our savings) and indirectly (when the Government recapitalises PSBs using the money we pay as taxes), remain mute spectators. It is high time depositors brainstorm on coming together to apply pressure on the banking system to work according to the established law, rules, regulations and guidelines. 

Financial inclusion must include this aspect also in addition to opening the no frills JanDhan Yojana bank accounts. The first step is to demand that all vacancies in PSBs be filled up in accordance with the letter and spirit of the legal procedures that have been laid down and the law be amended to institute a credible mechanism for appointing representatives of depositors on the management boards of all Banks.
The issue of gender representation on PSB boards also requires urgent attention as there is no dearth of eligible and qualified women candidates in the banking and allied services sector. As there is no reliable data about the social background of the current Directors of PSB Boards, we have not attempted an analysis based on criteria such as their religion and caste status. 

Perhaps these questions are best raised in Parliament to avoid dodgy replies that the Finance Ministry, RBI and PSBs themselves furnish when RTI applications are filed seeking such personal information despite their immense public importance. Government cannot be oblivious of the need to represent societal diversity on the management boards of PSBs.
I am grateful to Dr Devidas Tuljapurkar, Joint Secretary, AIBEA for educating me about these matters. I am also grateful to Citizens for India — a group of concerned citizens who discuss these public interest matters on Zoom, every Saturday evening, out of their growing concern about the manner in which things seem to be turning out, day after day.

***

Disclaimer: The foregoing analytical findings and discussion are true to the extent of the accuracy of the data published on FSIB’s website. In case of any doubt please contact FSIB for clarifications.
—
*Director, Commonwealth Human Rights Initiative, New Delhi. This article is based on CHRI’s latest research findings with regard to the vacancies on the boards of public sector banks in India. This is in continuation of CHRI’s endeavours to press for greater transparency in the functioning of these banks. For more information click here, here and here

Courtesy: counterview.net

The post Staggering 35 % vacancies, only 10 % women directors in public sector bank management boards appeared first on SabrangIndia.

Readers might remember my previous despatch about an RTI intervention to obtain access to information about migrant workers stranded in different parts of the country since the nation-wide lockdown to contain the spread of COVID-19 began on 25th March 2020. On April 8, 2020, the Chief Labour Commissioner (CLC), under the Union Ministry of Labour and Employment had issued a D.O. letter to the Regional Heads stationed in 20 different places across the country to collect  details about every stranded migrant worker and send it to New Delhi within three days. On May 5, 2020, the Central Public Information Officer (CPIO) had claimed in an unsigned reply, that the Statistics Section of the Office of the CLC did not have this information. I filed a complaint with the CIC, the same day. 

On May 27, 2020, the Central Information Commission (CIC) conducted an out-of-turn hearing of my complaint against the CPIO’s reply, treating it as a matter deserving urgent attention. Now the CIC has issued an advisory to the CLC under Section 25(5) of The Right to Information Act, 2005 (RTI Act) requiring him to cause all available information about stranded migrant workers to be uploaded on an official website within a week’s time, in accordance with Section 4 of the Act. This information is required to be updated from time to time. 

 The CIC’s decision may be read here  

The RTI application may be read here  

The CPIO’s reply may be read here 

The Complaint submitted to the CIC 

The text of the Complaint may be read here 

I submitted the following grounds in support of my prayer for proactive disclosure of data about migrant workers: 

1) that all the Regional Heads to whom the CLC addressed the D.O. of 08/04/2020 are subject by law to his administrative jurisdiction. There is no reason why the Regional Heads would not have complied with the instructions of the Respondent Public Authority to complete the enumeration exercise and send the data within the time period specified in the said D.O.; 

2) that the information sought concerns the lives of not just one person but all migrant workers residing within the territory of India due to the widespread effect of COVID-19. This Complainant searched the website of the Respondent Public Authority for information sought in the instant RTI application before submitting this Complaint After finding that none of the information is disclosed suo motu on the said website, he felt constrained to seek access to such information formally, not for himself alone, but for the benefit of the taxpaying citizenry at large who are dependent on such migrant workers directly or indirectly in a myriad ways; 

3) that all the information sought in the instant RTI application is that which ought to have been disclosed by the Respondent Public Authority proactively under Sections 4(1)(c) and 4(1)(d) of the RTI Act read with Section 4(2) of the RTI Act, so that people are not required to file formal RTI applications to obtain access to it;

My additional submissions to the CIC 

The CIC granted an out of turn hearing within three weeks of receiving my complaint. On May 27, 2020, the CPIO and I were heard via telephone because neither of us could travel to the CIC Bhawan during the the fourth phase of the lockdown. The CIC also took note of my additional submission made on the following points (verbally submitted during the hearing and followed it up in writing later on): 

1) that as a founder member of the International Labour Organisation which was constituted 101 years ago, in 1919, India had ratified the Labour Statistics Convention, 1985 in April 1992. Under Article 8 of this Convention, India has accepted its international obligation to collect:  

“Statistics of the structure and distribution of the economically active population shall be compiled in such a way as to be representative of the country as a whole, for detailed analysis and to serve as benchmark data.” 

This obligation includes the duty to collect information about migrant workers also, and that duty existed even before the CLC issued its April 8, 2020 circular, I argued.

 2) that according to the data presented by the Joint Secretary, Union Home Ministry, at a press briefing held on May 23, 2020, there were four crore migrant workers across the country. Of these, 75 lakh had been ferried to their home States on trains and buses. Even the 4 crore figure was based on 2011 Census whose detailed Data Tables were released as late as in July 2019. So it is reasonable to expect that this figure had become obsolete and the actual numbers might be much more than what the Government was citing, I argued. Nevertheless, by the Government’s own admission there were 3.25 crore migrant workers who had not yet returned to their home States, I argued. So, the collecting and publishing of statistics about migrant workers was as relevant as ever because three quarters of them had to be accounted for. 

My additional submission may be read here 

The CIC’s decision and reasoning 

The CIC took serious note of the issue of stranded migrant workers. In its decision, the CIC extensively cited from the orders of the Supreme Court of India (the suo motu case) and the High Courts of Orissa, Madras and Andhra Pradesh which have already taken judicial notice of the extreme levels of distress and suffering of migrant workers, resulting in scores of deaths.  

The CIC has now issued an advisory to the CLC as follows: 

“…an advisory is issued u/s 25(5) of the RTI Act to the Chief Labour Commissioner, to suo-moto upload maximum data as available with them in relation to the migrant workers stranded in relief camps or shelters organised by governments or at the workplace of their employers or generally clustered in any district and wherever possible cumulative numbers of the migrant workers and the names of the districts from where the data is collected should also be uploaded in compliance with Section 4 of the RTI Act, 2005, having regard to the peculiar circumstances prevalent in the country. The website should be continuously updated as and when additional data on this subject matter is received from time to time. The Chief Labour Commissioner is advised to ensure compliance of this advisory in letter and spirit and to submit a compliance report to the Commission within a period of 01 week from today. The present CPIO is directed to serve a copy of this order on the Chief Labour Commissioner for his immediate and necessary action.” (emphasis supplied) 

The CIC buttressed its decision with the following reasoning: 

“Undoubtedly, the need of the hour is to get concrete data regarding the number of stranded migrant workers across the country so that necessary measures may be taken by the concerned State Governments/ UTs to provide some relief to them… 

…The Commission while verifying the authenticity of this (additional) submission found that India has ratified Article 8 of Part II of the Labour Statistics Convention, 1985 on 01.04.1992 which is still in force and for the purpose of implementing the said ILO Convention, India is under an international obligation to collect data about all categories of workers across India even under normal circumstances. This makes it clear that the duty to collect data about migrant workers across India arises not solely from the said D.O. letter but first and foremost from the international obligation as a member of ILO who has ratified the said International Convention. Therefore, the Respondent Authority is under a bounden duty to collect information about migrant workers and make the same publicly accessible even during normal times… 

…Keeping in view the submissions … and the poor response from the respondent, the Commission considers the contentions of the complainant to be well founded, and strongly opines that what is required is to immediately place the data regarding migrant workers on the website of the Respondent Authority. It is pertinent to note that given the uncertainties of the present times, any further delay in disclosing these details or evading the disclosure will only compound the difficulties of either side, the government and that of the unfortunate migrant workers… 

…Moreover, being a matter of national importance during this pandemic, it is likely that there will be more requests for information on similar lines from the citizens in the immediate future which necessitates expeditious action on the part of the Respondent office to voluntarily disclose as much data as possible so that citizens do not have to file RTI Applications to seek such basic yet significant information. Section 4(2) of RTI Act may be noted in this regard which mandates every public authority to provide as much information suo- moto to the public at regular intervals through various means of communication, including the Internet, so that the public need not resort to the use of RTI Act… 

…Moreover, the purpose and object of the promulgation of the RTI Act, 2005 was to make the public authorities more transparent and accountable to the public and to provide freedom to every citizen to secure access to information under the control of public authorities, consistent with public interest, in order to promote openness, transparency and accountability in administration and in relation to matters connected therewith or incidental thereto…. 

…The foregoing … lend adequate emphasis on the need for the Respondent office to act in a manner which is favourable to dispensation of justice. Although this bench is conscious of the fact that under Section 18 of the RTI Act, directions for disclosure of information is not warranted, however, keeping in view the extraordinary circumstances that necessitated this complaint, it is prudent to cloak the requirement of the Complainant in the letter and spirit of the RTI Act. In doing so, the Commission invokes section 25(5) of the RTI Act and issues an advisory to the respondent authority to maintain a robust and dynamic website for placing all data related to migrant workers therein as and when it is received from different Regional Heads. At this point, it is necessary for the CPIO to put his best possible efforts to collect this data from different Regional Heads and place the same on their website immediately even if it is done in a piece meal manner. It is also necessary to continue to update this data from time to time as additional data is received from various quarters.”

(emphasis supplied)

End Note 

The first step towards resolving a problem in public administration is to collect adequate information and data about the problem. That crucial step in the case of migrant workers was initiated late. Even now, there is very little credible information about the actual number of migrant workers stranded in various parts of the country. The CLC’s D. O. of 8th April, 2020 was a step in the right direction, but its outcomes are hidden from public view. Meanwhile, innumerable migrant workers continue to suffer despite the well-meaning efforts of various authorities and private actors. I hope the CLC will take the CIC’s advisory seriously and make data about migrant workers available in the public domain in real time. It is only on the basis of reliable information that further interventions can be planned in a systematic manner. 

* Venkatesh Nayak is the Programme Head, Access to Information Programme, Commonwealth Human Rights Initiative

The post RTI Impact: CIC directs Chief Labour Commissioner to publish stranded migrant workers’ data within a week appeared first on SabrangIndia.

“The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries.. They are entitled to know the particulars of every public transaction in all its bearing”: Justice K K Mathew, former Judge, Supreme Court of India, (1975)

““Where a society has chosen to accept democracy as its credal faith, it is elementary that the citizens ought to know what their government is doing”: Justice P N Bhagwati, former Chief Justice, Supreme Court of India, (1981)

“Information is the currency that every citizen requires to participate in the life and governance of society”: Justice A. P. Shah, former Chief Justice, Delhi and Madras High Courts, (2010)
 

The Jammu and Kashmir Right to Information Act, 2009 stood repealed by virtue of the provisions of the Jammu and Kashmir Reorganisation Act, 2019 (Reorganisation Act) which came into force on 31st October, 2019. Records recently obtained under the RTI Act show, the Central Government’s Department of Personnel and Training (DoPT) began, in good faith, the process of making the transition from the State’s law to the Central Right to Information Act, 2005 (Central RTI Act) 15 days before J&K was downgraded and bifurcated into the twin Union Territories of Jammu and Kashmir and Ladakh. However, the J&K General Administration Department (JK-GAD) has started a parallel process of examining the Central RTI Act’s applicability to the UT of J&K. The transition process which would have gone smoothly but for the spanner in the works thrown by J&K-GAD.
 

Background

Readers will recall, the Reorganisation Act divided the erstwhile J&K into two administrative units- UTs of J&K and Ladakh. This bifurcation became operational on 31st October, 2019. Residents of the erstwhile undivided J&K used the State’s RTI Act for the last 10 years to make public authorities in the State more transparent and accountable. Every year, members of the J&K RTI Movement (led by Dr.ShaikhGhulamRasool) along with scores of other private citizens, activists, mediapersons, lawyers and students have filed thousands of RTI applications across the region. With the repeal of the J&K RTI Act, the State Information Commission was also dissolved. Ever since the  Reorganisation Act was Gazetted, people in J&K are seeking clarity about their first appeals pending before various public authorities and the second appeals and complaints pending before the State Information Commission. As and when telephone connections come back to life, people in J&K are frantically inquiring with transparency advocates across the country about the procedures for obtaining information from public authorities in J&K and Ladakh under the Central RTI Act. I have responded to several such calls till date, myself. There is no official statement from the Central Government or the UTs Administration clarifying any of these matters.
 

The RTI Intervention

Anticipating this confusion and the likelihood of delay on the part of the government to issue necessary clarifications about RTI in the two UTs, I submitted an RTI application to the DoPT through the RTI Online Facility on 31st October, 2019 (the very day on which the Reorganisation Act came into force) :

“Apropos the coming into force of the Jammu and Kashmir Reorganisation Act, 2019 today, being the appointed day, vide Section 2(a) of the said Act read with S.O. No. 2889(E) notified in The Gazette of India (Extraordinary) Part II, Section 3, sub-Section (ii), dated 09/08/2019, I would like to obtain the following information under the RTI Act, 2005:

1) The total number of appeals and complaints that were pending before the State Information Commission on the date of the repeal of the Jammu and Kashmir Right to Information Act, 2009 (J&K RTI Act);

2) A clear photocopy of all correspondence and file notings containing details of action taken to ensure that the appeals and complaints referred to at para no.1 above are transferred to a competent authority for disposal;

3) A clear photocopy of all communications received from the Central Information Commission (CIC), if any, regarding transfer of appeals and complaints from the erstwhile J&K State Information Commission to the former for disposal;

4) A clear photocopy of all communications sent to the CIC and related file notings, if any, regarding transfer of appeals and complaints from the erstwhile J&K State Information Commission to the former for disposal; and

5) A clear photocopy of any document containing details of action taken to ensure that the pending RTI applications submitted under Section 6(1) and pending appeals submitted under Section 16(1) of the J&K RTI Act do not lapse despite the repeal of the said Act as they are in effect actions taken exercising the fundamental right to information deemed to be guaranteed under Article 19(1)(a) of the Constitution.

If any information described above is not held in material form in your office:

a) kindly call for such information from the concerned public authority in the Union Territory administration of J&K as the said information is currently under your control as per Section 2(j) of the RTI Act, 2005, or

b) transfer the relevant portion of the instant RTI application to the concerned public authority as per Section 6(3) of the RTI Act.

I am unable to submit this RTI application directly to the concerned public authority in J&K because this RTI Online Facility has not been extended to the UT administration and also because postal services continue to remain disrupted in the UT.” (see 1st attachment)

The RTI Replies

Strangely, despite having initiated action on planning and coordinating the transition from the State’s RTI Act (now repealed) to the Central RTI Act, as records would reveal, the DoPT elected to transfer the RTI application to the Union Minstry of Home Affairs (MHA) and the Central Information Commission (CIC) within 24 hours.

The MHA’s Central Public Information Officer (CPIO) transferred the RTI application (see 2nd attachment) to the UT of J&K, 19 days later [although under Section 6(3) of the RTI Act only five days are permitted for this purpose]. My RTI was transferred to the “CPIO” in the Civil Secretariat of Jammu (by now the Durbar move from Srinagar to Jammu had occurred). This point will be discussed in the context of action taken by the J&K-GAD below.

The CPIO of the CIC has now sent copies of official records and file notings which reveal details of the action taken by DoPT to ensure a smooth transition from the State’s RTI regime to the Central RTI regime as applicable to the twin UTs. 

On 15th October, the Director (IR), DoPT who is in charge of the RTI Unit sent a communication to the CIC with a 10-point draft action plan for ensuring smooth transition from the soon to be repealed State RTI Act to the Central RTI Act and sought its comments. Ten days later, on 25th October, the CIC passed a resolution agreeing with all the steps that were suggested in the draft action plan. These included:

1&2)  Notifying all public authorities under the erstwhile State RTI Act as public authorities under the Central Act and notifying all SPIOs as CPIOs and State first appellate authorities (FAAs) as FAAs under the Central Act;

3&4) Ensuring that all RTI applications pending before SPIOs under the State RTI Act be deemed as pending under the Central RTI Act. Similarly ensuring that all first appeals pending before State FAAs be deemed as pending under the Central RTI Act.

5) Treating all 1st appeals arising out of of SPIOs’ replies issued before 31st October, 2019 as appeals lying under the Central Act after the appointed/bifurcation day.

6) All 2nd appeals pending before the erstwhile J&K Information Commission to be deemed as pending before the CIC under the Central RTI Act.

7) Treating all 2nd appeals arising out of of State FAAs’ orders issued before 31st October, 2019 (appointed/bifurcation day) as 2nd appeals under the Central Act to lie before the CIC. 

8) Requesting the J&K SIC to transfer all pending appeals and complaints to the CIC.

9) RTI Rules 2012 to be adopted by the administration of the UTs of J&K and Ladakh (as the J&K RTI Rules also stand repealed with the repeal of the J&K RTI Act); and

10) Any other matter for which no express provision has been made may be dealt with as per the Central RTI Act.

In its 25th October, 2019 Resolution approving the draft action plan, the CIC supported the view put up internally for giving due seniority to the pending second appeals when they got transferred to the CIC. The same day the CIC sent its Resolution and the additional suggestion to the DoPT(see 3rd attachment for file notings and CIC’s Resolution and communication sent to DoPT).

Perhaps later, the DoPT wrote to the JK-GAD outlining the steps that had to be taken for ensuring that the transition from the State RTI Act to the Central RTI Act was made smoothly. I had not sought this information in my RTI application presuming that it might be too early to expect a final decision on this issue to be taken on the 31st October, when I filed this RTI application.  

JK-GAD’s parallel action

Meanwhile the mandarins in JK-GAD have had other ideas. Five days ago, that is on 28th November, JK-GAD has constituted a 5-member committee under the Chairmanship of its Administrative Secretary to examine this transition issue all over again (see 4th attachment). I thank noted transparency activist Mr. Raman Sharma of Jammu for alerting me about this Government Order issued by JK-GAD.

The terms of reference (ToR) of this Committee are:

1) to examine whether the UT of J&K will come under the purview of the CIC or a separate UT may be constituted for the State.

2) to spell out actions required to be taken to redesignate PIOs and other functionaries if the Committee finds that UT of J&K comes under the CIC’s purview; and

3) any other incidental issues.

This GO was issued in the name of the Lt. Governor of J&K. This Committee is required to give its recommendations by 26th December, 2019.

What is wrong with this parallel action

1) A plain reading of Sections 12-17 of the Central RTI Act will reveal to any right-thinking person that UTs do not have the power to establish and constitute Information Commissions. Only the Centre and full-fledged States can set up such bodies. There was no need to set up a committee to examine this issue in J&K all over again. The JK-GAD babus could have simply put up a note on this topic and approved what the DoPT had drafted as an action plan after consultation with the CIC.

2) All other actions for ensuring smooth transition have been outlined in the DoPT’s action plan. There was no need for a further examination of any issue.

Unfortunately, the JK-GAD’s action of setting up the 5-member Committee will only delay the smooth transition for no good reason. All that JK-GAD had to do was draw up a road-map with dates for making the smooth transition as per DOPT’s recommendations. Instead bureaucratic red tape is likely to delay the transition process. Pending RTI applications and first appeals will remain that way before the public authorities while the JK-GAD committee deliberates on issues drawn up in its ToR. The files containing pending second appeals and complaints at the State Information will gather dust waiting to be transferred from J&K to the CIC in Delhi until the Committee make its recommendations and the UT administration acts on it. To make matters worse, PIOs in J&K might not entertain fresh RTIs that people may submit under the excuse of waiting for instructions from JK-GAD.

As stated above, the MHA already treats the PIOs at the J&K Secretariat as CPIOs- hence the transfer of my RTI application under Section 6(3) of the Central RTI Act. Indeed this is what the automatic application of the Central RTI Act to J&K would imply. All that is required is for JK-GAD to issue a GO stating that all SPIOs and FAAs will be deemed to have been appointed under the Central RTI Act. The GO could also reproduce the action to be taken for dealing with pending RTI applications and first appeals along with deadline for action. This would have ensured a smooth transition. Instead, JK-GAD’s actions will only delay this transition. 

The Central RTI Act is a law that gives effect to a fundamental right- namely the right to seek and receive information. Unlike statements made by some Union Ministers, the Central RTI Act does not confer this right afresh on the people of J&K and Ladakh. They possessed this right earlier also and exercised it under the State and Central RTI laws. The primary change that the Reorganisation Act makes is to bring the twin UTs under the purview of the Central RTI Act (apart from abolishing the J&K State Information Commission). Babus in JK-GAD would do well to complete their deliberations quickly and act on the 10 steps outlined by DoPT for ensuring smooth transition to the Central RTI Act. Fundamental rights are guaranteed under the Constitution so that citizens may exercise them at will. People should not have to wait for the Durbar to make its move.

The post How the RTI is scuttled in Jammu and Kashmir, a sordid story appeared first on SabrangIndia.

To be, or not to be, that is the question:

Whether ’tis nobler in the mind to suffer

the slings and arrows of outrageous (RTI applications) fortune,

or to take arms against a sea of (information requesters) troubles

and by opposing end (their right to know) them.”

(with apologies to Shakespeare for a poor parody of his creative genius and Hamlet- the brooding Prince of Denmark)

Unlike his contrarian predecessor, the present Chief Justice of India, Ranjan Gogoi has, in concert with four brother Justices, declared his august office, covered by the RTI Act. In its 15^th year of implementation, this unanimous opinion of the Constitution Bench (CB) strengthens the transparency law in many ways and paves the way for bringing another constitutional authority, namely, the Governor of a State under its compass. That question of law opened up twelve years ago through an RTI application penned by a former Union Defence Minister when he was the Leader of Opposition in Goa. Although the appeal case itself has been dismissed and the applicant is no longer with us, the Apex Court is yet to constitute another Bench to answer this important question of law.

In the latest case that the CB has decided, the RTI applicant Subhash Chandra Agarwal’s, the wait was not any less protracted. Three of his RTI applications, which formed the subject matter of the dispute are more than a decade old. Curiously, two of them have been referred back to the Apex Court’s Public Information Officer (PIO) for making a decision in accordance with the expansive procedures laid down by the law and the principles of interpretation explained by the Bench collectively and by Justices Ramana and Chandrachud, individually. Whether or not the information continues to have any currency, the RTI applicant will have to tell us. Will he move the Courts again this time on questions of fact, if the PIO rejects the requests after following due process, is a moot question. The struggle for transparency even in the judicial realm is not any easier than it is in the executive sphere, going by the experiences of millions of private citizens.

Leaving the facts of the three cases aside, the common and individual opinions penned by the Justices clarify several interpretational matters for the benefit of both the seekers and holders of information. However, in some respects, they also pose serious challenges to the already well-established understanding of the interplay between the right of access to information and the grounds for rejection of such access. In a couple of places, lay readers are likely to end up in confusion about the seeming divergence of views between the common opinion and the individual opinions of the Justices. In this piece, I hope to illustrate these issues in brief in order to encourage the readers to negotiate the 250-page long judgement to make their own determination about the import of this judicial milestone of sorts.

Let us start with the many positives for which the judgement deserves unqualified appreciation. First, despite not intending it to be so, because the facts of the cases related to accessing information from a State institution, the explication of Section 2(f) is a very welcome jurisprudential development. While the first limb of the definition of ‘information’ brings within its scope a wealth of forms in which information may be held by a public authority, such as samples and models of materials used, in addition to conventional records, logbooks, reports, written opinion and advice, electronic data and emails, it also includes information that a public authority may access from any private body under the provisions of any other existing law.

The CB’s conjunctive interpretation of the term ‘information” and “right to information” which is “under the control” of a public authority clarifies that it has a duty to collect information about a private hospital, school, shop, hotel, firm or factory, under lawful authority of course, and furnish it to an RTI applicant in accordance with the Act’s provisions even though such information was not held in material form in its records at the time of receiving the request. This provision has not been used to the fullest and wherever attempts were made, PIOs often resisted the performance of such duties. This judgement is a potent tool in the hands of RTI applicants who would like to make private entities that are not directly covered by the Act, more transparent about their activities.

Second, both the common and individual opinions of Justice Chandrachud contain a very detailed discussion of how to interpret “public interest” in the context of disclosure of information which is rejected by a PIO by invoking one or more grounds listed in Section 8(1) of the Act. Readers familiar with the RTI Act will recall, ten clauses in Section 8(1) contain more than 30 grounds on which information sought by an RTI applicant may be legitimately refused. However, these exemptions are subject to a later clause that requires even such information to be made public if by so doing the larger public interest will be served better.

Justice Chandrachud’s opinion, in particular, builds upon the gold standard of interpretation of how to balance competing for public interests favouring transparency and continued confidentiality that Justice P. N. Bhagwati (as he then was) developed in S. P. Gupta vs President of India & Ors. in 1981. Not only is this portion of Justice Bhagwati’s opinion highlighted for the benefit of the reader, a non-exhaustive list of factors that must be taken into consideration while performing such a balancing test is also underscored. Factors such as likelihood of disclosure causing embarrassment to the Government – a criterion that continues to guide the labelling of official records as “secret” or confidential” within the Government, or the RTI applicant’s likelihood of misunderstanding or misinterpreting the contents of a record or the high seniority of the author of an official record are all irrelevant considerations for the purpose of applying the “public interest test”.

The Department of Personnel and Training which often loses no time in sending out circulars highlighting regressive interpretations of the RTI Act contained in occasional judicial pronouncements would do well to show similar enthusiasm in circulating these portions of the judgement to PIOs, First Appellate Authorities and Information Commissions. This will go a long way in shedding ossified practices of denying access to information on such frivolous grounds.

Third, the common opinion consigns to the dustbin of history, the penchant of public authorities and even many an Information Commissioner to refuse to treat an individual’s quest for justice by seeking information, as a matter of “public interest”. All five Justices have agreed that public interest has “no relationship with the number of individuals adversely affected by disclosure or the number of individuals wanting such disclosure. The decision will vary depending upon how the public interests in maintaining the exemptions will be balanced with those favouring disclosure depending upon the facts and circumstances of every case.

Some readers might scorn at this ‘case-to-case’ approach as it lends no fixity to the concept of “public interest” but that indeed is the inherent strength of the method. It is not based on treating an entire class of information as being exempt for all time to come. What matters ultimately is the effect of disclosure- the facts and circumstances of each case- will it harm a public interest already listed in the exemptions or be beneficial to the public interest or remain neutral. Only the first effect requires continued confidentiality. The common and individual opinion of Justice Chandrachud provides very useful guidance to public authorities in this regard, if only they were to read it intently.

Now moving on to the challenges and confusion that the judgement poses to the implementation of the RTI Act. Much has already been said and will continue to be said about the interface between the fundamental rights to privacy and to access information from public authorities- both being judicial discoveries as Part III of the Constitution does not make a reference to them at all. The CB has itself hoped that some of the tensions in the interplay of these two rights are likely to be resolved with the enactment of the long-pending personal data protection law. So also with the clarification of the conditions in which fiduciary relationships arise and become a brake on the drive for greater transparency. We will not dwell on these topics in any detail.

Perhaps the most deleterious impact of the common opinion on the RTI regime may be said to be the inclusion of “motive” of the RTI applicant as a relevant factor while administering the public interest test. The CB recognizes that the purpose of the information seeker will have no relevance while making a decision on an RTI application but it will be a relevant factor while applying the public interest test to decide whether exempt information may be disclosed (para #79). This despite the CB recognising the existence of a bar on compelling an RTI applicant to disclose her or his motive while seeking information under Section 6(2).

Strangely, nowhere in the common or the individual opinions is Section 19(5) of the RTI Act even mentioned. Under this provision, the burden of proving why the requested information must remain exempt is on the PIO. The RTI Act does not place a corresponding obligation on the RTI appellant to explain motives for demanding access to information at any stage of the internal and external appeals. It is not clear whether this matter was brought to the notice of the Justices at all in the pleadings and written submissions.

This significant and embarrassing lapse is likely to embolden public authorities and Information Commissions to insist on a declaration of the purpose of seeking not just exempt information but eventually all information. It is very well known that decisions of PIOs and appellate authorities, not to mention several Information Commissioners, often raise this point when their obvious intent is to prevent disclosure of the requested information.

Second, the common opinion divests the PIO of the power coupled with a duty to direct disclosure of exempt information on grounds of public interest under Section 8(2) of the RTI Act. Instead, the CB has declared that this is a “discretionary power” exclusively vested with the “public authority” which the PIO represents (para #27). It is respectfully submitted, this interpretation creates two problems.

First, under Section 8(1)(j) of the RTI Act, the PIO is clearly vested with the power of making a decision to disclose personal information of an individual other than the RTI applicant (after following due procedure of third party interests are attracted as per the terms of Section 11 of the Act). That power coupled with duty cannot be taken away through judicial pronouncement unless the Court wants to supplant legislative intent, which it has always abhorred and avoided.

Second, the only clear finding on a question of fact in the entire case is the determination that the Supreme Court as established under Article 124 of the Constitution is one “public authority” and the CJI’s office is part of the same public authority. So if the “public authority” is an institution, who, then in such an institution as well as in other similarly labelled institutions will wield the power to determine whether exempt information will be disclosed under the terms of Section 8(2) of the Act? The common and individual opinions are silent on this point.

Next, the explication in both the common and individual opinions of the manner in which competing public interests must be harmonized and the factors that will be relevant or irrelevant for the purpose of determining public interest in favour of disclosure or otherwise, clearly indicates that it is in the nature of a quasi-judicial function. Where is the scope for applying any “discretion” in matters where the competing public interests must be balanced? It is respectfully submitted that “discretion” will only colour the entire exercise with arbitrariness.

Third, with the deepest respect to the wisdom of the Justices, it must be pointed out that the common and individual opinions betray a contradictory approach with regard to the manner of application of exemptions. This point cannot be illustrated without delving a bit into the jurisprudential development around the manner of invoking of exemptions. If memory serves us right, the earliest explanation of how exemptions must be invoked is found in Justice Ravindra Bhat’s opinion in Bhagat Singh vs Chief Information Commissioner & Ors., of 2007 when he served in the Delhi High Court. In that judgement, Justice Bhat (now elevated to the Apex Court) pointed out that exemptions listed in Section 8(1) of the Act, being exceptions to the general rule of transparency contained in Section 3 must be construed strictly.

In several other matters decided by the High Courts of Kerala, Madras and Calcutta, this interpretational rule was accepted. However, the Apex Court overturned that position in 2011 while deciding Central Board of Secondary Education & Anr. vs Aditya Bandopadhyaya and Ors., (see slide 35 at this weblink). The Court said that the exemptions must not be treated as “fetters on the right to information”, instead a harmonious approach must be adopted to balance these competing public interests. This position reiterated in ICAI vs Shaunak H. Satya delivered the same year and subsequent judgements of the Apex Court is also appreciated and explained in the common opinion of the CB. However, the individual opinion of Justice Ramana contains a discordant note as it gives currency to the approach several High Courts adopted between 2007 and 2011.

After lending his name to the common opinion, at para #23 of his individual opinion, Justice Ramana writes as follows:

“There is no doubt it is now well settled that exemption clauses need to be construed strictly. They need to be given appropriate meaning in terms of the intention of the legislature.”

In our humble opinion, this is also an area that needs some curative action from the Apex Court to avoid the embarrassment of contrary opinion being presented by a Justice at two different places on the same issue.

Fourth, both the common opinion (para #26) and the individual opinion of Justice Chandrachud (para #75) treat seven of the ten exemptions listed in Section 8(1) of the RTI Act as “absolute” in character where the PIO is barred from disclosing such information even if the larger public interest in disclosure outweighs the harm caused to the protected interests. Three exemptions relating to commercial confidence, trade secrets and intellectual property, information covered by a fiduciary relationship and the last clause which protects personal privacy are not absolute in so far as they are tempered specifically by public interest override clauses. In our humble opinion this characterization is not in accordance with legislative design and intent.

Most of the blame for this confusion must lie with the draftspersons and we the advocates of transparency who pushed Parliament to legislate without cleaning up the initial draft. The RTI Bill tabled in Parliament did not contain an omnibus public interest clause which now exists as Section 8(2) in the Act. Instead, Section 8(2) in the original Bill contained what is now a proviso underneath Section 8(1) which contains the noble principle that information which cannot be denied to Parliament or a State Legislature cannot be denied to any citizen. Only clauses under Sections 8(1)(d), 8(1)(e) and 8(1)(j) whose contents are explained at the beginning of this paragraph were subjected to a public interest override clause.

The omnibus public interest override clause was inserted as Section 8(2) upon the recommendation of the Parliamentary Committee which vetted the Bill with copious inputs from civil society advocates, lawyers and academics. Due to the rushed passage of the final version of the Bill (on the last days of the Session of both Houses of Parliament), the draft was perhaps not cleaned up (the hard copy of the gazette notification of the Act contains at least two typographical errors even now). So the public interest override element stays in the three exemption clauses in addition to the omnibus clause as part of the law and is the source of this confusion.

However, a basic principle of interpretation of the law is that Parliament intended for every word and formulation to exist in the manner it is crafted and visible in the final text adopted and notified after Presidential assent. So the doctrine of harmonious construction comes to play to resolve any conflict between two or more provisions oflaw. It is respectfully submitted that characterising seven out of ten exemptions clauses as being “absolute” does not amount to harmonious construction but amounts to doing injustice to legislative intent. We hold this view for multiple reasons. First, if Parliament had intended for these exemptions to be absolute then the opening limb of Section 8(1) would have read- “The following information shall not be provided or disseminated” in the manner of Section 3(3) of Nepal’s Right to Information Act enacted in 2007. Several other countries place such a prohibition which can be realistically termed “absolute”.

The Indian RTI Act, however, takes a different approach. The opening limb reads” Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen…” In our humble opinion, this implies- a citizen cannot reasonably expect to get information covered by these exemptions as a matter of right- a principle which the common opinion also recognizes. However, that does not turn seven of these clauses into absolute exclusions.

First, Section 8(2) provides the exception to these exemptions- so they cannot be termed exclusions at all.

Second, Section 8(3) prohibits the invoking of seven out of ten exemptions for information that is more than 20 years old. This 20-year rule applies to five of the seven exemption clauses which the common opinion characterizes as absolute. So here again the characterization of these exemptions as absolute is not sustainable in our humble opinion.

Strangely, this important provision does not merit even a mention in either the common or the individual opinions of the Justices. Unless these confusions are cleared up through a curative petition, public authorities are likely to misuse this portion of the judgement to deny access to more and more information which was not the intent of Parliament in the first place.

Last, but without putting too much emphasis on it as it is most likely to be the handiwork of a negligent law clerk which went unnoticed, Justice Chandrachud’s opinion contains a howler. The seminal paragraph where the citizens’ right to know was discovered for the first time by another 5-Member Constitution Bench in State of U.P. vs Raj Narain, was authored by Justice K. K. Mathew and not the then Chief Justice of India, Justice A. N. Ray as attributed in this opinion.

However, it must be acknowledged that despite the cautious manner in which the common opinion seeks to strike a balance between citizen’s access to information about how judges are appointed (a point which has been remanded back to the PIO for afresh decision) and the need for ensuring the independence of the judiciary and preventing possible attacks on the reputation of candidates for judgeship in the constitutional courts, Justice Chandrachud mentions a non-exhaustive list of essential norms in regard to judicial appointments in his opinion.

Will the PIO reveal the norms that went into the elevation of certain judges over and above others, now that the RTI application has been remanded to him for fresh consideration remains to be seen. What objections will the individuals so elevated will pose to making this information transparent also becomes a matter of immense public interest? How effectively will the PIO apply the tests and the interpretative tools laid down by the common and the individual opinions remains to be seen as well?

At the other end of the spectrum of this creative tension characterizing the adjudication undertaken by the CB is the anxiety expressed by Justice Ramana that RTI could become a potential tool of surveillance to scuttle the effective functioning of the judiciary.

With the deepest respect and in all humility it is submitted that RTI cannot be equated with the tools that empower the government to conduct surveillance over anybody- citizens and high public functionaries alike. The latter is abhorrent to human dignity and a violation of basic human rights and freedoms when attempted in an illegal and illegitimate manner.

The RTI Act contains adequate safeguards as noted by the Hon’ble Justices themselves that have convincingly until now and will in the future prevent disclosure of information that should legitimately remain under wraps. If not, these three cases would not have reached the Supreme Court’s high table of justice.

(Venkatesh Nayak is Head, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi. Views are personal.)

First published in https://theleaflet.in/

The post SC, CJI under RTI: Examining the Verdict appeared first on SabrangIndia.

BEL unit, Bengaluru

Readers may remember reading my despatch from September 2019 in which I had explained how Bharat Electronics Ltd. (BEL) did a volte face under The Right to Information Act, 2005 (RTI Act) about supplying information relating to Electronic Voting Machines (EVMs) and Voter Verified Paper Trail Units (VVPATs) deployed during the 2019 General Elections to the Lok Sabha.

After demanding copying charges of Rs. 1,434, the Central Public Information Officer (CPIO) returned the money claiming that BEL did not hold some of the information and that disclosing names of Engineers deputed to provide technical support for these machines at the constituency-level, would endanger their lives. The CPIO also refused access to operational manuals relating to these machines. The CPIO of Electronics Corporation Ltd. (ECIL) which also supplied EVMs and VVPATs for use during the same elections had also denied information sought in an identical RTI application.

Now in a welcome turnaround, ECIL’s First Appellate Authority (FAA) has upheld my first appeal and directed its CPIO to provide access all information which he had denied earlier.

Meanwhile BEL’s FAA directed the CPIO to transfer the queries relating to the number of EVMs and VVPATs deployed during the 2019 Lok Sabha Elections to the Election Commission of India (ECI) but upheld his decision to reject information about Engineers and operational manuals used.

After being rejected by BEL and ECIL, I had submitted an identical RTI application to ECI’s CPIO. He did not bother to send a reply for more than 40 days. Now I have filed a first appeal and am waiting for the FAA’s decision in this case. ECI’s CPIO is also required to reply to similar queries transferred to him by BEL’s CPIO.

A tale of three RTI Interventions

After closely scrutinising some of the election-related information and statistics that ECI published, on 17th June, 2019, I decided to file two identical RTI applications seeking the following information from BEL and ECIL which neither they nor the ECI have placed in the public domain:

“I would like to obtain the following information pertaining to the Electronic Voting Machines (EVMs), Voter Verified Paper Audit Trails (VVPATs) and Symbol Loading Units (SLUs) supplied by your company for use during the recently concluded General Elections to the Lok Sabha, under the RTI Act:

1) The maximum number of votes recordable on each EVM supplied for use in the 2019 Lok Sabha Elections,

2) The maximum number of votes printable on each VVPAT Machine supplied for use in the 2019 Lok Sabha Elections,

3) The district-wise number of Control Units of EVMs transported across India for use in the 2019 Lok Sabha Elections,

4) The district-wise number of Ballot Units of EVMs transported across India for use in the 2019 Lok Sabha Elections,

5) The district-wise number of VVPATs transported across India for use in the 2019 Lok Sabha Elections,

6) The district-wise number of thermal paper rolls used in VVPATs transported across India for use in the 2019 Lok Sabha Elections,

7) A clear photocopy of the List of Engineers with name and designation, deputed for carrying out tasks relating to the preparation of EVMs and VVPATs that was sent to every District Election Officer in India for the purpose of the 2019 Lok Sabha Elections,

8) A clear photocopy of the List of Senior Level Engineers with name and designation, deputed for supervision and coordination during the preparation of EVMs and VVPATs that was sent to every District Election Officer in India for the purpose of the 2019 Lok Sabha Elections,

9) The total number of SLUs used by your Team(s) of Engineers during the 2019 Lok Sabha Elections,

10) A clear photocopy of the official document handed over to every District Election Officer during the 2019 Lok Sabha Elections containing details of every SLU allocated to your team(s) of Engineers,

11) A clear photocopy of the User Manual prepared by your company, pertaining to the VVPAT machines used during the 2019 Lok Sabha Elections, if any,

12) A clear photocopy of the User Manual prepared by your company, pertaining to the SLUs used during the 2019 Lok Sabha Elections, if any,

13) A clear photocopy of the application filed with the Office of the Patent Controller for securing a patent on VVPAT, if any, along with the postal address of such office, and

14) A clear photocopy of the application filed with the Office of the Patent Controller for securing a patent on SLU, if any, along with the postal address of such office.”

ECIL CPIO’s RTI reply:

ECIL’s CPIO did not bother to send me a signed reply. Instead he uploaded some text on the RTI Online Facility without a signature replying as follows:

1) RTI Queries 3, 4, 5 & 6: ECIL’s CPIO claimed that information about EVMs and VVPATs despatched to the Lok Sabha constituencies and the number of thermal paper rolls used for printing the ballots is not readily available and they will be sent as soon as they are received.

2) RTI Queries 7 & 8: The CPIO denied access to the list of Engineers who were stationed in the constituencies to do prepare the EVMs and VVPATs for polling and their superiors who supervised the whole exercise claiming that it was personal information exempt under Section 8(1)(j) of the RTI Act.

3) RTI Queries 10 & 12: The CPIO rejected access to the User Manual of the Symbol Loading Units and the official document related to them, handed over to the district administration after the candidate information is loaded on the EVMs and VVPATs. The CPIO says that it is classified information and attracts Section 8(1)(a) and 8(1)(d) of the RTI Act. Section 8(1)(a) exempts information which will prejudicially affect security and strategic interests of the State. Click HERE for the ECIL-related RTI application and reply.

First appeal sent to ECIL and the FAA’s order

Aggrieved by the ECIL CPIO’s unsigned reply, I submitted a first appeal with the FAA in September, 2019 arguing as follows:

1) ECIL’s CPIO had committed an procedural error by not sending a signed reply;

2) As more than three months had passed since the completion of the 2019 Lok Sabha Elections, information relating to RTI Queries 3-6, that is, constituency-wise deployment of EVMs, VVPATs and thermal paper rolls used in VVPATs should now be available for disclosure;

3) The List of Engineers deployed by ECIL at the constituency-level cannot be treated as personal information whose disclosure would violate their privacy because they were performing public duties;

4) The VVPAT and Symbol Loading Unit User Manuals and VVPAT patent application are also information that must be in the public domain and that the CPIO had not issued a speaking order justifying how the exemptions were attracted.

ECIL’s FAA examined the issues raised in the appeal and directed the CPIO to collect all the information and supply it under the RTI Act. However, the FAA has not specified a time limit for compliance. Click HERE for the 1st appeal and ECIL FAA’s order (1st attachment).

First appeal sent to BEL and the FAA’s order

Aggrieved by the BEL CPIO’s decision to reject access to the information sought in a similar RTI application, despite demanding additional fees initially, I had submitted a first appeal with the FAA in September, 2019 arguing as follows:

1) It is difficult to understand as to why the CPIO who initially charged additional fees calculating the exact number of page for every RTI query, later on claimed that he did not hold the information about the constituency-wise deployment of the EVMs and VVPATs;

2) It is not clear as to how the disclosure of details of Engineers deputed would endanger their lives; and

3) The CPIOs’ revised reply denying access to most of the information which he was prepared to disclose initially indicated that he was under pressure from some internal or external agency to change his stance.

BEL’s FAA upheld the CPIO’s refusal to supply information relating to the Engineers deployed, the operating manuals relating to VVPATs and SLUs and the application submitted for claiming a patent on the VVPATs. However, she directed the CPIO to transfer the first part of the RTI application to the ECI to answer queries relating to the constituency-wise details of deployment of EVMs, VVPATs and thermal paper rolls used in VVPATs.

Click HERE for the 1st appeal and BEL FAA’s order (2nd attachment).

ECI’s treatment of the RTI application for similar information

As both BEL and ECIL had initially rejected my request for information about EVMs and VVPATs deployed during the 2019 Lok Sabha Elections and the list of Engineers deputed to render technical support, I submitted an RTI application with the ECI seeking similar information. ECI’s CPIO did not bother to send a reply for more than 40 days. So I have filed a first appeal. Now ECI has to make a decision not only on this first appeal but also make a decision on the RTI application transferred to it by BEL, in accordance with the FAA’s orders.

Click HERE for the RTI application and the first appeal submitted to ECI (3rd attachment).

Lack of uniformity of treatment of similar RTIs

Even after 15 years, the implementation of the RTI Act in many public authorities is not predictable. Identical RTI applications yield diverse responses. This is a clear indicator of the failure of the system to make the transformation from secrecy to transparency as envisaged in the preamble of the RTI Act. The political leadership which only pays lip sympathy to the democratic values of transparency and accountability, the lack of seriousness and commitment from the bureaucracy to making this transformation and the clearly demonstrable weaknesses of the oversight mechanisms such as the FAAs and Information Commissions are to blame for this state of affairs.

However, the ECIL FAA’s order provides the proverbial silver lining to the dark clouds of poor implementation. The FAA appears to have recognised the imperative of transparency in all matters relating to elections (except voters’ choices) and directed the CPIO to disclose all information. As there is no time limit in his order, I will wait for a month before I explore the need for approaching the Central Information Commission (CIC). As for the BEL, I will challenge the FAA’s order upholding rejection of a part of the RTI application, before the CIC. Meanwhile, the wait for ECI’s response to my first appeal and the RTI application transferred from BEL continues.

—

*Programme Head, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi

Courtesy: /counterview.org

The post 2019 polls: ECIL seeks disclosure of information on EVM, VVPAT; BEL, EC equivocate under RTI Act appeared first on SabrangIndia.

 
Apart from the chest-thumping at the recent election rallies in Maharashtra and Haryana and the latest round of military operations launched across the northwestern border, educational institutions are being pressed to organise debates on this issue.
 
A common theme that pervades all these attempts to legitimise recent actions over J&K is the blame game targeting other political parties that governed the Centre and J&K for all that went wrong until August 2019. Arguably, the favourite whipping boy of critics of the Kashmir policy is Pandit Jawaharlal Nehru who was the Prime Minister at the time of J&K’s accession to the Indian Union in October, 1947.
 
An oft-repeated charge against Pt. Nehru was that he did not show enough courage to beat back the invaders who descended on J&K in September 1947. Instead, he is accused of internationalising the matter by making a complaint to the United Nations at the end of December that year.
 
So the picture fabricated for public consumption is one of contrast between the “weakness” of a “vacillating” leader in 1947 and the “aggressiveness” of his “decisive” successor in the 21st century. This is what current and successive generations are expected to lap up as the gospel truth about the J&K affairs between 1947-48 as compared to the developments in the 21st century.  
 
Unfortunately, in the 15th year of the implementation of The Right to Information Act, 2005 (RTI Act), crucial official papers that would help the citizenry, particularly, the millennials and their successors of Generation Z, and of course academia, to understand the Kashmir issue better, are being withheld on government orders. The Nehru Memorial Museum and Library popularly known as Teen Murti Library, under instructions from the Ministry of External Affairs, has denied me access to the files about J&K put together between 1947-49 by India’s 2nd Army Chief- Sir Roy Bucher.
 
The Background
Readers might remember my piece published in 2016 around the 68th anniversary of J&K’s accession to the Indian Union (October26-27). I had published multi-colour scanned copies of the Instrument of Accession signed by the then Ruler of J&K, Maharaja Hari Singh and accepted by the then British Vice Roy in India, Lord Louis Mountbatten of Burma in 1947. The Wire was kind enough to resurrect that piece in the aftermath of the legislative exercise made in August 2019 to change J&K’s status in the Indian Constitution. 
 
In the interim, my Quest for Transparency (a phrase borrowed from the website of the Prime Minister’s Office) continued, until it led me to a 20-odd page transcript of an interview of Sir Francis Robert Roy Bucher, 2nd Commander-in-Chief of the Indian Army (who took over from General Sir McGregor MacDonald Lockhart) conducted by noted biographer B. R. Nanda a few decades after the former’s retirement in October, 1949.
 
The transcript of the interview with Sir Roy Bucher makes for very interesting reading with titbits about what happened in J&K narrated from memory and also his love for India and the respect he had for top leaders like Pt. Nehru, Sardar Vallabhbhai Patel and Sir C. Rajagopalachari- first Governor General of independent India. This crucial interview contains multiple references to files and papers related to J&K affairs that were compiled between 1947 and October 1949 by Sir Roy Bucher and handed over to NMML.
 
When I looked up, its index of archival papers, this file, Sir Roy Bucher had handed over to NMML was catalogued “closed”. Surprised that NMML would be holding back government records and papers from public scrutiny even after more than 70 years had lapsed, I inquired with some of the senior officials about this practice. He conceded that certain archival material is indeed withheld from scholars and researchers on two grounds:
 
a) under instructions from the Government department concerned; and
 
b) under instructions from the donor or his/her family who hand over archival materials to NMML.
 
The RTI Intervention  
So at the beginning of this month (October, 2019) I submitted a request under the RTI Act to NMML, through the RTI Online Facility, seeking the following information:
 
“1) A clear photocopy of any list of records, documents, papers, microfilms, microfiche and any other material available in the holdings of the Nehru Memorial Museum and Library that are closed to the public, under instructions from any agency in or under the Government of India;
 
2) A clear photocopy of any list of records, documents, papers, microfilms, microfiche and any other material available in the holdings of the Nehru Memorial Museum and Library that are closed to the public, under instructions from any agency in or under the State or Union Territory Governments;
 
3) The name of the agency which has issued instructions, the date of such instruction and the period for which every such record, document, paper, microfilm, microfiche or other materials referred to at para nos. 1 and 2 above, must remain closed to the public, and
 
4) Inspection for a period of 5 hours, the files and papers pertaining to Jammu and Kashmir handed over to the Nehru Memorial Museum and Library by General Sir Roy Bucher, 2nd Chief of the Army Staff of India, as mentioned in his interview with eminent historian Shri B.. R. Nanda, which is recorded in the Sir Roy Bucher Transcripts available in your holdings.
 
Kindly make arrangements for supplying copies of all papers and micro-films or micro-fiche, if any, or any other materials that I may identify during the inspection.”
 
The PIO’s reply
The Public Information Officer (PIO) was prompt enough to send a reply, free of charge, within 20 days of receiving the RTI application. He attached a list of archival papers that are closed for public scrutiny under orders from the Central Government or under directions from the donor. A study of the list of “closed papers” attached to the PIO’s reply reveals the following interesting facts:
 
1)Sir Roy Bucher’s papers (except for the transcript of the interview with Shri B. R. Nanda) are closed under orders from the Union Ministry of External Affairs;
 
2) Certain papers of Shri Pyarelal who was Personal Secretary to Mahatma Gandhi in his later years and Dr. Sushila Nayyar who was Gandhiji’s personal physician, are closed from public scrutiny under directions from Shri Harsh Nayar. This restriction is to run for a period of 30 years. The start date of the embargo is not revealed in the RTI reply;
 
3) Certain papers relating to former Prime Minister Smt. Indira Gandhi are closed under instructions from the Indira Gandhi Memorial Trust;
 
4) Certain papers of Shri Uma Shankar Dixit, former Union Minister and Governor of my home state, Karnataka during the 1970s (he was removed within a year and a half of appointment when the Janata Government came to power in 1977) under instructions from his daughter Smt. Sheila Dixit, former Chief Minister of Delhi, who also passed away recently. Whether her heirs will continue to press for this secrecy remains to be seen;
 
5) Certain papers of Shri K. Hanumanthaiah, former Chief Minister of my home State Karnataka, (he was instrumental in completing the construction of Vidhana Soudha which houses the State Legislature and certain segments of the Government Secretariat) under instructions from one Shri V.. Shivalingam; and
 
6)Certain papers donated by noted author Ms. Nayantara Sahgal who has instructed maintenance of secrecy until 2033. Incidentally, Ms. Sahgal is the niece of Pandit Nehru and the daughter of his sister Smt. Vijayalakshmi Pandit who was India’s Ambassador to the United Nations and the first woman President of the UN General Assembly in 1953.
 
The list that NMML’s PIO provided also includes papers of Mr. Gordon B Halstead, who was associated with Gandhiji until the British Government ordered him out in 1932 and those belonging to a former officer of the Indian Police Service, Shri Ashwini Kumar. The PIO of NMML endorsed the note prepared by one Ms. Priyamvada, staffer of NMML that Sir Roy Bucher’s papers and the rest listed above cannot be permitted for anybody to see or consult. 
 
Click here for the RTI application and reply.
 
What is problematic with the PIO’s reply
While there might be a justification for keeping personal papers of public figures donated to the NMML, away from public scrutiny for a limited period or even eternally, every claim of secrecy for papers relating to official matters of the Central or State Government must be tested on the touchstone of the RTI Act. Mere executive instructions issued by a babu are not adequate to prevent access to such records under the RTI Act. 
 
Section 7(1) of the RTI Act clearly states that a request for information made under this law can be refused only on the basis of the exemptions listed under Sections 8 and 9. No other reason is valid. NMML is a public authority and its policies of allowing or refusing access to records relating to governmental affairs must be based on the standards and procedures of the RTI Act. Refusal to provide access to Sir Roy Bucher’s papers related to J&K and other records relating to government affairs must be justified under the exemptions provided in the RTI Act, subject to the public interest override in Section 8(2) of the Act. This is the implication of the overriding effect that Section 22 gives the RTI Act over all other laws, rules, regulations or instruments that have the effect of a law. MEA’s instructions alone, for maintaining confidentiality of these papers, cannot insulate Sir Roy Bucher’s J&K papers from public scrutiny.
 
I will do the usual appeals in this case and report the developments to you in due course.
 
Pt. Nehru contemplated a strike on Pakistan to save J&K in 1947-48
Many writers and his bitterest critics have accused Pt. Nehru of not going the whole length of the way to take back the territory of J&K that had been seized by invaders with active support from across the border, in 1947, after it acceded to independent India soon after Dusshehra and Eid. Sir Roy Bucher seems to know otherwise. In his interview with Shr B. R. Nanda he remembers the tumultuous events as follows:
 
“…What went on within the Indian Cabinet I do not know, but I have two letters at home [no I think they may even be in the file here (i.e. at NMML); anyway I have copies of them at home if they are not in the file] from Pandit Nehru; he had become very perturbed about the shelling of Akhnur and the Beripattan Bridge by Pakistan heavy artillery from just within Pakistan; he enjoined me to do all I could to counteract this. There was nothing which one could do except counter-shell. In one his letters Panditji wrote: “I do not know what the United Nations”- I am quoting – “are going to propose. They may propose a cease-fire and what the conditions are going to be I do not know. If there isn’t going to be a cease-fire, then it seems to me that we may be faced with an advance into Pakistan and for that we must be prepared. I assured my Prime Minister that all steps would be taken to meet any eventuality;” (emphasis supplied)
 
Sir Roy Bucher continues the narrative saying, a few days later the then Defence Minister Sardar Baldev Singh telephoned him to announce a cease-fire. Sir Roy Bucher says, he drafted the communication to his counterpart in Pakistan, General Gracey, about the ceasefire showed it to Pt. Nehru in the Lok Sabha and signalled it to Pakistan to stop the hostilities. The justification for the cease-fire was made as follows:
 
“My Government (Indian Govt.) is of the opinion that senseless moves and counter-moves with loss of life and everything else were achieving nothing in Kashmir; that I (Sir Roy Bucher) had my Government’s authority to order Indian troops to cease firing as from a minute or so before midnight of 31st December...” 
 
The transcript wrongly mentions 1948 as the year in which the cease-fire was signalled. In fact this action was taken at the stroke of midnight when the calendar changed from 1947 to 1948. Sadly, NMML does not permit copying of more than 20% of these old transcripts. So I had to pick and choose from the 20-odd page long document, extracts that serve the purpose of this despatch. 
 
Click here for extracts from the transcript of Sir Roy Bucher’s interview with Shri B. R. Nanda. 
 
In order to get to the bottom of the truth, the Sir Roy Bucher files and all other related papers, transcripts and microfilms in the NMML holdings as well as archival materials held in the National Archives (from where I obtained a scanned copy of J&K’s Instrument of Accession) and the MHA and MEA must be made public without any delay.. Very few members of the generation that witnessed the developments in J&K in 1947 are still with us today and their narratives of the developments that led to J&K’s accession to India are at variance with each other on some crucial issues. Transparency of contemporary official records is indispensable to counter propagandist versions of contemporary history. 
 
The NDA-II Government promised to declassify papers held in secret for several decades about Netaji Subhash Chandra Bose. It is yet to fully deliver on this commitment. Will NDA-III go the whole length of the way to make archival papers about J&K public remains to be seen.
 
I must also clarify, I hold no brief for any individual. It is important to unearth facts and details from locked-up files and papers to reconstruct a truer picture of what happened in government circles in 1947-48. I hope the RTI Act will prove a useful tool to bring in greater transparency about that sanguinary episode of modern Indian history, if the Government does not volunteer to open up these papers for public scrutiny.  
 
(All facts are in the public domain. Views are personal)
 
Related:

1. Expecting large scale protests, Government asks CRPF to stock up on non-lethal munitions: Kashmir
2. New Report Cites 432 Torture Cases In Kashmir From 1990-2017, 70% Victims Civilians
3. ‘Non-Lethal’ Crowd-Control Methods Have Killed 24, Blinded 139 In Kashmir
4. Pellet guns return to Kashmir, baby girl shot in the eyes
    

The post Nehru contemplated a strike on Pak to save J&K in 1947-48? Modi Govt withholds info: RTI appeared first on SabrangIndia.

The post Blackout! Agra Prison Authorities refuse information on J & K detenues: RTI appeared first on SabrangIndia.

The shutdown was imposed around the time the Central Government with Parliament’s approval made fundamental changes to J&K’s status under the Constitution of India. A few weeks ago, the media reported the Government’s claim that all landline services across the State and post-paid mobile telephone services in some parts of the Valley had been restored. Speaking at an event organised in New Delhi by the Former Civil Servants Forum, the Union Home Minister (HM) is reported to have said that the restrictions are only in some minds and not in J&K (perhaps he referred to the minds of those opposed to the changes being imposed on J&K including Opposition Parties).

The Union Home Ministry has now confirmed the HM’s statement. A few days ago the Home Ministry has given a reply under the Right to Information Act, 2005 (RTI Act) saying, they do not have any papers relating to the restrictions on telecommunications imposed in that State. It has also claimed innocence of knowledge vis-a-vis the widely reported arrests and detentions of politicians and social activists who are residents of J&K.

The Union Home Minister is also reported to have asked participants at that the New Delhi event, whether lack of telephone services is a violation of fundamental rights.  It appears that the Home Ministry officials slipped up in briefing him about the recent Kerala High Court’s finding that access to the Internet, especially through mobile telephone service providers, is a fundamental right deemed to be a part of the right to life under Article 21 and the right to education guaranteed under Article 21-A of the Constitution.

As a result of this innocence of basic and crucial knowledge of rights, not only the several fundamental freedoms of Kashmiris, but also the rest of India’s right to know have taken a severe beating under the enforced policy of One Nation, One Constitution.

The RTI Intervention with the MHA

Three weeks after the Central Government successfully moved Parliament to take away the special protection given to J&K under the Constitution of India, on 30th August, 2019, I sought the following information from the Union Ministry of Home Affairs through an online RTI application:

“1) a clear photocopy of any order(s)/direction(s)/instruction(s) issued for suspending Internet and telecom services, in Jammu and Kashmir in August 2019;
2) a clear photocopy of any order(s)/direction(s)/instruction(s) issued for suspending radio broadcasts and satellite television services in Jammu and Kashmir in August 2019;
3) a clear photocopy of any order(s)/direction(s)/instruction(s)/advisory(ies) issued requiring the Amarnath Yatra pilgrims to leave Jammu and Kashmir in 2019;
4) a clear photocopy of any order(s)/direction(s)/instruction(s)/advisory(ies) issued requiring the departure of tourists from Jammu and Kashmir in 2019;
5) a clear photocopy of any order(s)/direction(s)/instruction(s) issued in July-August 2019 for detaining or arresting leaders and members of all political parties currently active in Jammu and Kashmir;
6) the names of political leaders and members of political parties belonging to Jammu and Kashmir currently under detention or being held in police or judicial custody along with the exact geographical address of the places of their lodgement as on date;
7) the title of the law, rule or regulation along with the text of the relevant provision under which such political leaders and members of political parties in Jammu and Kashmir who are placed under detention or being held in police or judicial custody as on date;
8) the names of Right to Information (RTI) activists in Jammu and Kashmir who have been placed under detention or are being held in police or judicial custody and their village/town/city of ordinary residence, along with the exact geographical address of the places of their lodgement as on date;
9) the title of the law, rule or regulation along with the text of the relevant provision under which such RTI activists in Jammu and Kashmir have been placed under detention or who are being held in police or judicial custody as on the date of this RTI application;
10) the names of other social activists in Jammu and Kashmir currently who have been held under detention or are being held in police or judicial custody and their village/ town/city of ordinary residence, along with the exact geographical address of the places of their lodgement as on date; and
11) the title of the law, rule or regulation along with the text of the relevant provision under which such social activists in Jammu and Kashmir have been placed under detention or who are being held in police or judicial custody as on date.”

The Central Public Information Officers (CPIOs) in the MHA seem to have played soccer with the RTI application for a few of weeks, moving it from desk to desk within the J&K Division of the Ministry. Both CPIOs eventually replied that they did not have any of the information sought in my RTI application. The second CPIO went a couple of steps further ahead to tell me that he could not transfer the RTI application to J&K as it was not covered by the Central RTI Act (On 31 October, 2019 the Central RTI Act will become operational in J&K and Ladakh because of the Jammu and Kashmir Reorganisation Act, 2019). He also said I could seek the same information from J&K if I were eligible to so do under the J&K’s own RTI Act of 2009 (which has been formally repealed by the J&K Reorganisation Act). Under the J&K’s RTI Act only local residents are eligible to file RTI applications with the State Government. Click here to read the RTI application and CPIOs’ replies.

What is wrong with the Home Ministry’s RTI replies?

There are multiple problems with the CPIOs’ replies which indicate lack of due application of mind to the issues involved:

1) Since 19 December, 2018, the State of J&K has been placed under President’s Rule imposed under Article 356 of the Constitution. All powers of the Governor and the State Legislature stand transferred to the President of India. The work of the State Government is being carried out under the guidance of the Central Government through the State’s Governor who has only babus to run the administration. Any order imposing curbs on travel and telecommunications will at least be copied to the Union Home Ministry in which the J&K Division is housed, if not actually directed by the MHA. So the CPIOs’ replies that they have no information about the curbs imposed and the arrests and detention of residents of J&K are not based on truth and reality.

2) The newly constituted Parliamentary Standing Committee on Home Affairs is reported to have sought extensive information about the situation in J&K including data about arrests and detenues of the very categories of people I mentioned in my RTI application. Ordinarily, the MHA has a duty to provide this information to the Parliamentary Committee unless it makes a compelling case to withhold it from the Committee in the interests of protecting national security. If MHA gives this information to the Committee, I will be entitled to receive it thanks to the proviso underlying Section 8(1)(j) of the RTI Act. According to this proviso, information which cannot be denied to Parliament or a State Legislature, shall not be denied to any person formally seeking it under the Act.

3) Further, orders imposing curbs on people’s movement and telecommunication services are decisions which affect the public at large. Not only people residing in J&K and their relatives and friends based outside but others like me who have friends and well wishers in J&K are affected by such curbs. So under Section 4(1)(c) and 4(1)(d) of the Central RTI Act everybody has the right to know all relevant facts that led to the imposition of the curbs and the justification for such administrative decisions. Both provisions can be found in J&K’s RTI Act also.

Whichever Government that imposed such curbs in J&K has not only kept those orders away from the public gaze but also refused to explain why such curbs are necessary over such a long period of time. In fact this is the core issue in at least one of the petitions pending in the Supreme Court of India filed by a local mediaperson. The Apex Court’s lack of adequate speed in ruling on the legality of these curbs has come in to a lot of public criticism – too numerous to by cited here. In fact a cyber satyagraha was observed across the country on Gandhiji’s 150 birth anniversary (2nd October, 2019) to protest these curbs and express support to those deprived of telecom services in J&K.
4) Come 31st October, the Central Criminal Procedure Code, 1973 (CrPC) will replace J&K’s own criminal law. Section 41C of the Central CrPC requires every District Police Control Room to display prominently on a notice board information about people arrested including their names and other details and the details of the police officers effecting such arrest. This will apply to all districts in J&K. Under the same statutory provision the J&K Police Headquarters will be under an obligation to maintain a database of information about people arrested or detained, not for its records but primarily for the reference of the general public. So this is an obligation to be transparent about arrests and detentions by the time this matter goes into appeals. The CPIOs have ignored all these matters while drafting their replies to my RTI application.

Is there a fundamental right to telephone services?

The Union HM seemed to be in doubt as to whether “lack of telephone services is a human rights violation” (or else he might have asserted that there was no such human right) at the public event he addressed on the last day of September, 2019. Ten days earlier, the Kerala High Court had ruled that access to Internet is a fundamental right. It is unfortunate that the MHA officials had not updated him on this development or he could have spared himself the embarrassment of asking such a question.

On 19 September, 2019, in the matter of Faheema Shirin R. K. vs The State of Kerala & Ors., the Kerala High Court ruled that right to access Internet, particularly, through mobile telephone service providers is deemed to be a part of the rights to life and privacy under Article 21 of the Constitution and the right to education under Article 21A of the Constitution of India. The Petitioner, an 18-year old girl student of a college affiliated to the University of Calicut, challenged the discriminatory rule imposed by a Warden of a Girls’ Hostel banning the use of Internet by inmates after sunset. This progressive judgement received only cursory attention in media circles whereas it should have been at the centre of the debate over the ongoing curbs on communication in J&K. The Court ruled that students have the right to access Internet through their mobile phones so long as they did not disturb other hostel inmates. The Court drew upon a slew of UN Human Rights Declarations and Resolutions of the Human Rights Council- both arenas where the Central Government has put in strenuous efforts to prevent and counter criticism of its actions in J&K.

While the Hostel authorities justified the curbs imposed on access to the internet in the name of “discipline”, the Court rejected that argument observing as follows:

“9…Though instructions are to be obeyed by the inmates, is there any justification in imposing such restrictions. However in this case the question to be examined is whether such enforcement of discipline by restricting the use of mobile phones would result in curtailing the right of the students to acquire knowledge by different means. Using of mobile phones by itself would not cause any harm to anyone. If a restriction is unreasonable and arbitrary and infringes the fundamental right of an inmate, it cannot be said that the student has to abide by such restriction, especially when the inmate is an adult…

18. Though it is true that the Principal of the college is the supreme authority to enforce discipline as held by this Court in Manu Wilson’s case, Sojan Francis‘ case, Indulekha Joseph‘s case (supra) and that there cannot be any dispute that rules and regulations lawfully framed are to be obeyed by the students and that teachers are like foster parents who are required to look after, cultivate and guide the students in their pursuit of education for maintaining excellence of education, the rules should be modified in tune with the modernisation of the technology so as to enable the students to acquire knowledge from all available sources. It would be open to the authorities in the hostel to supervise whether any distraction or disturbance is caused to other students on account of usage of mobile phone or take action when any such complaint is received. The total restriction on its use and the direction to surrender it during the study hours is absolutely unwarranted. When the Human Rights Council of the United Nations have found that right to access to Internet is a fundamental freedom and a tool to ensure right to education, a rule or instruction which impairs the said right of the students cannot be permitted to stand in the eye of law.

22. I am of the view that what is required is a counselling for the students, as well as parents in the colleges. The students in the hostels should be given counselling in order to inculcate in them self restraint in the usage of mobile phones, to make them capable of choosing the right path, to make them aware of the consequence of misuse as well as advantage of its proper use. It should be left to the students to choose the time for using mobile phone. The only restriction that can be imposed is that they should not cause any disturbance to other students. While acting in exercise of right to privacy, persons like the petitioner shall also see that such exercise does not invade the right to privacy of another student residing in the hostel especially in her room.” (emphasis supplied)

Although the judgement cited above has the force of law in Kerala only, it is a beacon of light to shine while testing the validity and constitutionality of excessive curbs imposed on telecom services not only in J&K but also other parts of the country. All eyes will be on what the Apex Court will do on Children’s Day, i.e., 14th November, 2019 when the two dozen petitions about J&K’s constitutional status and the state of affairs in that region will be taken up again. In all probability the the Central Government will justify the curbs on telecom services on grounds of protecting the defence and security interests of the State. How the Apex Court will test the proportionality of these curbs will be watched with great interest in all quarters.

Meanwhile, I will do the usual appeals in this case and report back.
—
*Programme Head, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi

Courtesy: Counter View
 

The post MHA confirms it has no papers to ‘shut down’ J&K: Kerala HC calls internet a fundamental right appeared first on SabrangIndia.

Image courtesy: https://feminisminindia.com

In his reply at the end of the debate, the Hon’ble Union Minister of State for Personnel, Public Grievances and Pensions made a few points which indicated the Government’s mind in pushing for these amendments. These issues need elaborate discussion and hopefully MPs in the Rajya Sabha will take them up in right earnest. Meanwhile, I am sharing some of my thoughts on a few points raised by the Minister for the reference and use of readers.

Does the legislative competence to enact an RTI law arise from Entry 97 of the Union List?
In his speech, the Hon’ble Union Minister admitted to at least two truths- 
a) that he was not a lawyer and was not as well-informed of the technical aspects of laws as other lawyer-turned MPs who criticised the Bill using their professional training and experience. He also quite rightly pointed out that law is too serious a subject to be left to lawyers alone. (I support this position wholeheartedly as I am not a trained lawyer myself. I also believe, in a functional democracy, law is the business of every citizen, not merely that of the Government of the day or the Legislatures or Courts and lawyers); and

b) that he had read about all the legal issues pertaining to the RTI Act and the Amendment Bill that MPs opposing it raised, only the previous night in order to participate in the debate (indeed Ministers are often too busy to spend any more time on legislative exercises).
Next, he pointed out that Parliament’s competence to enact a law to give effect to the citizens’ right to obtain is located in Entry 97 of the Union List in the Seventh Schedule of the Constitution read with Article 248. The three Lists containing subjects on which Parliament and State Legislatures may make laws are connected with Article 246, not 248. But such a minor lapse on the part of the Minister may be ignored given his honest admission about not being a lawyer.

The Union List contains 97 subjects on which Parliament has the exclusive prerogative of making laws. Entry 97 reads as follows:
” Any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists.”

In other words, Parliament has been vested with the power to make laws on subjects which are not listed in either the State List or the Concurrent List. As RTI is not listed in either of them, the Hon’ble Minister turned to the catch all Entry 97.
If this the correct position in law, then it automatically follows that the RTI laws enacted in eight States since 1997, starting with Tamil Nadu, were all unconstitutional. Click here for the names of the States and the year of enactment of the respective RTI laws. (Jammu and Kashmir enacted its first RTI Act in 2004, but we will not get into that thorny thicket about legislative competence as the RTI Amendment Bill does not impact on that J&K’s RTI Act enforced since 2009.)

However, history is witness to the inaction of the constituents of NDA-III Government who were then in the Opposition in all those eight States. None of them challenged the constitutionality of these laws in the High Courts or the Supreme Court. Hundreds of thousands of citizens used these RTI laws to obtain information from Governments, particularly in the States of Tamil Nadu, Goa, Karnataka, Delhi and Maharashtra- the last continues to top the list of States where the most number of RTI applications are received by Government. So were all those actions of citizens seeking information and State Governments deciding whether or not to give information, illegal? It is difficult to accept the Hon’ble Minister’s assertion that Parliament’s power to enact the RTI law is locatable in Entry 97 of the Union List.

Legislative competence to enact an RTI law arises from Part III of the Constitution read with Entry 12 of the Concurrent List
When Parliament was examining the Freedom of Information Bill, 2000– NDA-I’s still-born efforts to have an RTI law for the country noted legal expert and author- Mr. A G. Noorani developed a legal opinion arguing, both Parliament and State Legislatures are competent to make laws to give effect to the fundamental right to information which is deemed to be a part of the fundamental right to freedom of speech and expression guaranteed in Article 19(1)(a) of the Constitution. He located this power in Entry 12 of the Concurrent List (scroll down to page 13 of the pdf file at this link). Entry 12 reads as follows:

” 12. Evidence and oaths; recognition of laws, public acts and records, and judicial proceedings.”
RTI Act enables citizens to access “public records” which are in the custody or under the control of public authorities. As such records are generated, collected, collated or compiled by public authorities at the Central or the State level, Entry 12 can be used by the Governments at both levels to enact RTI laws. This is what will save the eight State-level RTI laws from being deemed unconstitutional, even though the issue is merely academic in nature, now.

Adding to Mr. Noorani’s argument, in my humble opinion, State Legislatures can also make laws on matters such as RTI by virtue of Article 35 of the Constitution, situated in Part-III which lists the fundamental rights available to citizens and other persons. Article 35 reads as follows:
“35. Legislation to give effect to the provisions of this Part.—Notwithstanding anything in this Constitution,—
(a) Parliament shall have, and the Legislature of a State shall not have, power to make laws—
(i) with respect to any of the matters which under clause (3) of article 16, clause (3) of article 32, article 33 and article 34 may be provided for by law made by Parliament; and
(ii) for prescribing punishment for those acts which are declared to be offences under this Part,
and Parliament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in sub-clause (ii);” (emphasis supplied)

Now what are these restrictive clauses? Article 16(3) empowers Parliament to make laws stipulating residential requirements for persons to be employed as Government servants in a State under that State Government or a local authority there. Article 32(3) empowers Parliament to make laws to bestow on any other court, powers conferred on the Supreme Court to protect fundamental rights by issuing writs, directions or orders. Article 33 empowers Parliament to make laws for restricting the extent to which members of the armed forces, law enforcement agencies, intelligence and counter-intelligence agencies and agencies providing telecommunication services to the armed forces can enjoy the fundamental rights guaranteed by the Constitution. Article 34 empowers Parliament to make laws to indemnify any officer of the Central or State Government for any action taken for restoring law and order in any area where martial law is in force. Laws can made under this Article to validate any sentence passed or punishment inflicted or any other act done in an area where martial law is in force. On these matters relating to Part III of the Constitution, State Legislatures have no power to make laws. Those powers are vested exclusively with Parliament.

So, these restraining provisions may be interpreted to imply that there is no bar on State Legislatures from making laws to enable the exercise of other fundamental rights guaranteed by the Constitution. In my humble opinion, this implied legislative power of the State Legislatures is co-extensive with the implied power of Parliament to make laws to give effect to other fundamental rights guaranteed under Part III of the Constitution. There is no bar on such legislative exercises under Article 35 of the Constitution. 

This is perhaps why, the Statement of Objects and Reasons (SOR) attached to the RTI Bill (scroll down to page 18 of the pdf file) tabled in Parliament in December 2004 did not refer to any Entry in any of the three Lists in the Seventh Schedule. Instead, the last line of the SOR stated-
“The proposed legislation will provide an effective framework for effectuating the right of information recognized under Article 19 of the Constitution of India.” (emphasis supplied)

Therefore, the Hon’ble Minister’s opinion that the RTI Act was made by virtue of Entry 97 of the Union List which vests residuary powers of Legislation in Parliament may not be the correct position in law. Courts will have to determine this matter for reaching certainty.
Two sets of Rules regarding salaries and service conditions will apply to the State Information Commissions
If the RTI Amendment Bill passes muster in the Rajya Sabha also and in its current form, it will create another legal conundrum. Section 27 of the RTI Act vests the power to make Rules relating to the salaries, allowances and service conditions of the staff and employees of Information Commissions in the State Government. The relevant extract from Section 27 is cited below:
“27. (1) The appropriate Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:
XXXX
(d) the salaries and allowances payable to and the terms and conditions of service of the officers and other employees under sub-section (6) of section 13 and sub-section (6) of section 16;” (emphasis supplied)
Through the RTI Amendment Bill, the Central Government seeks control of the rule-making power to determine the salaries, allowances and tenure of the State Information Commissioners also. If this proposal is enacted, SICs will have two sets of Rules to implement relating to

salaries, allowances and conditions of service- 
1) one for the Information Commissioners as determined by the Central Government; and 

2) another for the SIC staff as determined by the respective State Governments.
This will be an extremely rare if not unique occasion when two different sets of rules will apply to a similar matter within one body. We have already demonstrated in our first despatch how this proposal is violative of the federal scheme of the RTI Act especially, because the Government seeks powers to determine how money will be spent from the Consolidated Fund of each State because that is the kitty which will pay for the salaries of State Information Commissioners. Dual control through Rules will cause more problems in the functioning of State Information Commissions. 

Who will be the “appropriate government” for a State Information Commission?
Another legal conundrum that the proposed amendments will create is with regard to the applicability of RTI Rules on SICs. The SICs are also public authorities under the RTI Act and have to appoint public information officers and appellate authorities for disposing RTI applications and appeals just like other government and public sector entities. They are currently implementing the RTI Rules notified by the respective State Governments by virtue of Sections 2(1)(a) which defines the term- “appropriate governments” and Section 27 of the RTI Act which vests the power to make RTI Rules in the State Governments also. As the SICs are constituted and populated by the appropriate State Governments by virtue of Section 15 of the RTI Act, those State Governments make RTI Rules relating to fees and other matters listed in Section 27 for the SICs also.

Now if the Central Government were to successfully wrest from Parliament, the power to determine the salaries, allowances and tenure of State Information Commissioners, the question that would then arise is- who will be the “appropriate Government” for them- the State Governments which appoint them and have the power to cause their removal or the Central Government which controls their salaries and tenure? 

So if the amendments receive Parliamentary approval, will SICs have to follow the Central RTI Fee and Appeal Rules for themselves while they continue to apply the respective State RTI rules for public authorities that fall under their appellate (Section 19 of the Act ) or complaints (Section 18 of the Act) jurisdiction? This is another legal quagmire that the proposed amendments create.

The federal scheme arises from various parts of the RTI Act
Sections 15 -18 which provide for the establishment and constitution of the State Information Commissions and the removal of Information Commissioners are not the only source of the federal scheme of the Act. In fact the scheme of the Act as it stands now sensibly demarcates responsibilities for implementing the Act. Recognising the fact that the Constitution has laid down a scheme of division of powers between the legislature, executive and the judiciary, the RTI Act vests the rule-making power in the heads of all three organs of the State as “competent authorities”. So the Rules that the Central Government or the President of India make are applicable only to the Executive branch of the Government, the Union Territories and such other bodies. The Speakers of the Lok Sabha and the Vidhan Sabha, the Chairperson of the Rajya Sabha and the Legislative Councils, the Chief Justice of India and the Chief Justices of the respective High Courts are vested with the power to make Rules to implement their RTI Act within their jurisdiction. The Central Government’s RTI Rules do not have automatic applicability to them. This is the scheme provided for in Sections 2(1)(a) and 2(1)(e) which define the terms- “appropriate government” and “competent authority” respectively read with Sections 27 and 28 of the RTI Act which vest the rule-making power in such bodies. This scheme respects not only the division of powers between the three organs of the State but also the quasi-federal distribution of power between the Central and the State Governments laid down by the Constitution. The proposed amendments seek to obliterate this harmonious scheme and create more confusion than solve any non-existent problem. So by this count also, the Central Government cannot and must not demand Parliament’s power to make Rules for Information Commissions. 

The RTI Amendment Bill, if passed will result in the forceful adoption of the SICs by the Central Government. While the State Governments which constitute them and pay for their salaries and allowances from the Consolidated Fund of the concerned State continue to remain the biological parents, the Central Government will force its illegitimate parenthood on them in their teenage (RTI is now completing 15 years of implementation) by determining their salaries and allowances.

None of these matters seem to have crossed the mind of the Hon’ble Minister while replying to the debate on the RTI Amendment Bill in the Lok Sabha. Perhaps one late-night reading of the Act does not afford enough time to examine all these problems created by the amendment proposals. But the Hon’ble Minister must not be faulted for this. There is an cohort of senior officers and legal draftspersons whose salaries are paid for by the citizen-taxpayer who should have adequately advised the Hon’ble Minister. Was such advice ever given to him? Only the Cabinet Note attached to the Bill, file notings and the Inter-Ministerial Consultations will reveal the truth. This is an RTI-able topic to which readers must apply themselves.

Had the Draft Bill been put out for comments from the citizenry as required the Pre-Legislative Consultation Policy, 2014, the Government would have benefited from popular wisdom. That has not happened despite the amended NDA slogan- sabka saath, sabka vikas, sabka vishwas (meaning- with all, development for all and trust of all). The Government does not seem to show much vishwas (faith) in the citizenry’s ability to advise them about what is wrong with these RTI amendment proposals.

Conclusion
Even as I rush to complete this note and circulate it, MPs in the Rajya Sabha will begin debating the RTI Amendment Bill. I hope good sense will prevail and the Bill will be referred to a Select Committee for detailed deliberation. In the Lok Sabha the Hon’ble Minister asked why do the Opposition MPs suspect that the Government will downgrade the salaries and allowances of the Information Commissioners? So will the Government then upgrade their salaries? This will go against the grain of the justification printed in the SOR of the RTI Amendment Bill– that statutory bodies like the Information Commissions cannot be equated with constitutional bodies like the Election Commission of India (as it is currently). So will the Government downgrade the salaries? The Hon’ble Minister seems to allay these fears also. The only option that remains is to leave the status quo, perhaps by removing the reference to the Election Commission and equating the salaries and allowances of the Information Commissioners with that of Secretary-level officers who already earn the same levels of salary as the Election Commissioners. Then this would become an exercise in nitpicking- a waste of Parliament’s time and resources. 

Certainly this is a waste of my time as well. I could have drafted at least three RTI applications and a couple of first appeals and second appeals during the time taken to research and out despatch these notes.

Click here and here to read our earlier despatches analysing the RTI Amendment Bill.

First published on https://www.humanrightsinitiative.org/
 

The post RTI amendments: Questionable Legislative competence, dual control and other legal quagmires arising out of a one-night stand with the RTI Act appeared first on SabrangIndia.

Within less than two months of returning to power the National Democratic Alliance (NDA-III) Government has revived its 2018 proposal to curtail the autonomy of the Information Commissions established under The Right to Information Act, 2005 (RTI Act). Readers will remember, a similar attempt was made exactly one year ago but the Bill to assume power to regulate the tenure, salaries and allowances of Information Commissioners across the country was not tabled in Parliament. Perhaps the widespread protest from citizenry and the media supported by the Opposition Parties was the reason for the government backtracking. Emboldened by the big majority that it has attained in the 17th Lok Sabha, the NDA Government is back to its favourite past time- striving to curtail the efficacy of the RTI Act. According to the Revised List of Business, the Government is likely to table the Bill in the Lok Sabha today (19th July, 2019).

The text of the RTI Amendment Bill making the rounds of cyberspace is similar to the 2018 Bill, word for word. The slightly expanded paras #3 and 5 of the Statement of Objects and Reasons attached to the Bill are the only variation over the previous document. Click here for the text of the RTI Amendment Bill, 2019. 

Problematic areas in the RTI Amendment Bill, 2019
In 2018 many experts and activists wrote eloquently and passionately about the regressive nature of these proposals to amend the RTI Act. While agreeing with their criticism, I am once again sharing our arguments against these amendment proposals, circulated last year, for the reference of readers. The crux of our arguments is explained below:
1) The amendment proposals contradict the Central Government’s 2017 action of upgrading and harmonising the salary packages of other Statutory Tribunals and Adjudicating Authorities established under various Central Laws:
In June, 2017, through The Finance Act (see Section 156 onwards in Part XIV of the Act) the Central Government upgraded the salaries, allowances, eligibility criteria and the manner of appointment of the Chairpersons/Presiding Officers and Members of 19 Tribunals and Adjudicating Authorities- all of which have been established under a specific law and whose members are not constitutional authorities. Some of these Tribunals are: Central Administrative Tribunal, National Green Tribunal (NGT), Armed Forces Tribunal, Appellate Tribunal for Electricity, Railway Claims Tribunal, Intellectual Property Appellate Board, Debts Recovery Appellate Tribunal, Central Excise and Customs Tribunal, Telecom Disputes Settlement Appellate Tribunals, Securities Appellate Tribunal, Income Tax Appellate Tribunal, Authority on Advance Ruling and even the Film Certification Appellate Tribunal (FCAT) etc. 

The salaries of the Chairpersons of 17 of these 19 Tribunals were hiked to the same levels as that of the Election Commissioners (INR 2,50,000) while the salaries of the Members were upgraded to the levels of High Court Judges (INR 2,25,000). Readers will recall that the Chief Election Commissioner (CEC) and Election Commissioners (ECs) are entitled to draw the same level of salaries as Judges of the Supreme Court of India. It is not clear whether the salaries of the CEC and the two ECs who are constitutional authorities have been upgraded yet. The information regarding salaries paid to them, as per the proactive information required to be disclosed under Section 4(1)(b)(x) of the RTI Act, continues to show INR 90,000 for all three of them. Either their salaries have not been upgraded or the information on their website has not been updated.

What is more intriguing is that the salaries of the Chairpersons and Members of the statutory Tribunals mentioned above were upgraded even before the President of India gave his assent to the law which upgraded the salaries of the Supreme Court and High Court Judges. This law was gazetted in January 2018, six months after the salaries of the Statutory Tribunals were hiked. It seems, the Central Government had no problems raising the salaries of Statutory Tribunals mentioned above, before upgrading the salaries of the SC and HC Judges who are constitutional authorities. So the justification that the Central Government is giving for amending the RTI Act, namely, that the Information Commissions being statutory authorities cannot be treated on par with constitutional authorities like the ECI does not sound convincing at all.

2) The proposed amendments contradict the rationale informing the October 2017 recommendations of the Law Commission of India for harmonising the salaries and terms and conditions of service of other statutory Tribunals established under various Central laws:
The Law Commission of India (LCI) in its 272nd Report on Assessmentof Statutory Frameworks of Tribunals in India released in October, 2017 called for the harmonisation of the salaries and allowances of many of the statutory Tribunals mentioned above. By then the Central Government had already taken action in this regard. LCI did not discuss the salaries and allowances paid to the Information Commissioners in its report. Perhaps this was omitted as their salaries already stood fixed at the same levels which they were recommending for other statutory Tribunals. So the spirit of the recommendations of LCI applies equally to the Information Commissions and there is no reason to treat them differently.

3) The proposed amendments may violate the Information Commissioners’ right to be treated equally by the law as guaranteed under Article 14 of the Constitution:
The Information Commissions perform quasi-judicial functions much like the statutory Tribunals and Adjudicating Authorities whose salaries were hiked in June 2017.In fact, except the NGT and the Film Certification Appellate Tribunal, none of the other Statutory Tribunals or Adjudicating Authorities deal with fundamental rights matters. There is no reason why Information Commissioners should be subjected to a different treatment. So the amendment proposals do not answer satisfactorily to the test of “intelligible differentia” which is a requirement for treating unequals differently under Article 14 of the Constitution of India. So it is submitted that the amendments to the RTI Act if carried out may fall foul of the fundamental guarantee of the right to equality before law to every person.

4) The proposed amendments seek to vest excessive powers of delegated legislation with the Central Government: 
The amendment proposals are a blow to the federal scheme of the RTI Act. If enacted into law they will create two sets of laws applicable to salaries paid in the SICs- one made by the State Governments for staffers of SICs under Section 27(2) of the RTI Act and the other which the Central Government hopes to make for the State Information Commissioners. Further, the salaries of Information Commissioners in the States are paid out of the Consolidated Fund of the concerned State over which the Central Government has no control. So the RTI Amendment Bill is another example of seeking excessive delegation of powers by the Central Government.

5) The absence of consultation on the proposals prior to their finalisation is a violation of the 2014 Pre-Legislative Consultation Policy:
As already pointed out by several critics, the Central Government has not conducted any consultation with the primary stakeholders, namely, the citizenry and the Information Commissions on the amendment proposals. This is a clear violation of the 2014 policy on pre-legislative consultation which must precede all law-making exercises or amendments to existing laws.
Click here to read the full critique of the RTI Amendment Bill, 2019 and the Factsheets comparing the Statutory Tribunals and Adjudicating Authorities with the Information Commissions under the following criteria:
a) size of the Tribunal/Appellate Tribunal or Adjudicating Authority;
b) nature of proceedings;
c)  appointing authority;
d) qualifications for appointing the Chairperson/Presiding Officer and other Members;
e) search-cum-selection process;
f) tenure;
g) erstwhile and salaries as revised in 2017;
h) the forum where their decisions may be appealed against; and
i) whether they are subject to directions from the Central Government.

CHRI trail of enquiry:  RTI Amendment Bill, 2019 | CHRI’s critique of the Amendment Bill

First published on https://www.humanrightsinitiative.org/
 

The post Modi 2’s RTI Bill seeks to Control Salaries and Tenure of Information Commissioners appeared first on SabrangIndia.