———- Forwarded message ———-
From: shailesh Gandhi <shailesh2@vsnl.com>
Date: 21-Jun-2006 09:07
I have attempted to give comments against most of the suggestions and am
wondering what is in it, which is really useful. It is about 3900 words. I
again get the overall impression that these recommendations are by and large
subverting RTI, and hence would commend that NCPRI oppose them. I would
request all of you to please read this, and Shekhar's views,-which differ
from mine,- and please respond. Would be obliged if you could read it and
comment:
ARC: The Official Secrets Act (Para 2.2.12) :
a. The Official Secrets Act, 1923 should be repealed, and substituted by
a chapter in the National Security Act, containing provisions relating to official secrets.
shailesh comments: 1 a talks about achieving something that the RTI Act
has already done as far as making OSA redundant is concerned.*
ARC: b. The equivalent of the existing Section 5, in the new law may be on
the lines recommended by the Shourie Committee as quoted below:
" 5(1) If any person, having in his possession or control any official secret
which has come into his possession or control byvirtue of:-
b I. his holding or having held an office with or under government, or
b2. a contract with the government, or b3. it being entrusted to him in
confidence by another person holding or having held an office under or with
the government, or in any other manner,
i. communicates, without due authority such official secret to
another person or uses it for a purpose other than a purpose for which he
is permitted to use it under any law for the time being in force; or
ii. fails to take reasonable care of, or so conducts himself as to
endanger the safety of the official secret; or
iii. wilfully fails to return the official secret when it is his duty to
return it, shall be guilty of an offence under this section.
5(2) Any person voluntarily receiving any official secret knowing or having
reasonable ground to believe, at the time he receives it, that the official
secret is communicated in contravention of this Act, he shall be guilty of
an offence under this section.
5(3) A person guilty of an offence under this section shall be punishable
with mprisonment for a term which may extend to three years or with fine or
with both.
Explanation:For the purpose of this section, 'Official Secret' means any
information the disclosure of which is likely to prejudicially affect the
sovereignty and integrity of India, the security of State) friendly
relations with foreign states) economic, commercial, scientific and
technological matters relating to national security and includes: any secret
code) password) sketch plan, model, article, note or document in relation to
a prohibited place."
1.b; 5 (2) & (3). shailesh: Whistleblowers and those who receive
information from them can be punished with imprisonment upto three years.
ARC: 2. Governmental Privilege in Evidence (Para 2.3.S) :
a, Section 123of the Indian Evidence Act, 1872 should be amended to
read as follows:
" 12 3. 1)Subject to the provisions of this section, no one shall be
permitted to give any evidence derived from official records which are
exempt from public disclosure under the RTI Act, 2005.
(2) Where he withholds such permission, he shall make an affidavit
containing a statement to that effect and se ting forth his reasons
therefor.
(3) Where such officer has withheld permission for the giving of such
evidence,
the Court, after considering the affidavit or further affidavit, and if it
so thinks fit, after examining such officer or, in appropriate cases, the
Minister, orally;
a) shall issue a summons for the production of the unpublished official
records concerned, if such summons has not already been issued;
b) shall inspect the records in chambers; and
c) shall determine the question whether the giving of such evidence-
would or would not be injurious to public interest, recording its
reasonstherefor.
(4) Where, under sub-section (3), the Court decides that the giving of
such evidence would not be injurious to public interest, the provisions of
sub-section (1) shall not apply to such evidence,
Provided that in respect of information classified as Top Secret for reasons
of national security, only the High Court shall have the power to
order production
of the records,"
Shailesh: Section 2 above: Certainly does not appear to lead to better RTI
implementation or transparency. From my limited knowledge of law,- confined
only to RTI,-I see a circular trap. 1 (b) above, introduces a new concept,
which having come after RTI, will supersede it. Now, evidence can be
refused, which will be exempted under RTI.*
ARC: Section 124 of the Indian Evidence Act will become redundant on account
of the above and will have to be repealed.
Accordingly, the following will have to be inserted at the appropriate place
in the Code of Civil Procedure, 1908 and the Code of Criminal Procedure,
1973;
“Any person aggrieved by the decision of any Court subordinate to the High
Court rejecting a claim for privilege made under Section. 123 of the Indian
Evidence Act, 1872 shall haw a right to appeal to the High Court against
such decision, and such appeal may be filed notwithstanding the fact that
the proceeding in which the decision was pronounced by the Court is still
pending."
3. The Oath of Secrecy (Para 2.4.4):
a. As an affirmation of the importance of transparency in public
affairs) Ministers on assumption of office may take an oath of transparency
along with the oath of office and the requirement of administering the oath
of secrecy should be dispensed with. Articles 75(4) and 164 (3), and the Third
Schedule should be suitably amended.
b. Safeguard against disclosure of information against the national
interest may be provided through written undertaking by incorporation of a
clause in the national security law dealing with official secrets.
Shailesh: If oaths of transparency mean anything, we could treat this as a
small gain. Unfortunately oaths have no meaning.*
ARC: 4. Exempted Organizations (Para *2.5.6) :
a. The Armed Forces should be included in the Second Schedule of the
Act.
b. The Second Schedule of the Act may be reviewed periodically.
c. All organizations listed in the Second Schedule have to appoint P10s.
Appeals against orders of PIOs should lie with CIC/SICs.
(This provision can be made by way of removal of difficulties under Section
30)
Shailesh: Section 4. Includes Armed Forces in the exempted list Exemptions
of organizations are anathema to RTI, whereas, this talks of periodic
review and makes a cosmetic concession of having PIOs.*
ARC: 5. The Central Civil Sendees (Conduct) Rides (Para 3.1.4) :
a. Civil Services Rules of all States may be reworded on the following
lines:
"Communication of Official information; Every Government servant shall, in
performance of his duties in good faith, communicate to a member of public
or any organisation full and accurate informationwhich can be disclosed
under Right To Information Act 2005
Shailesh: Corrects the Civil Service rules- neutral on RTI.*
ARC: Explanation – Nothing in this rule shall be construed as permitting
communication of classified information in an unauthorised manner or for
improper gains to a Government servant or others."
6. The Manual of Office Procedure (Ptira 3.2.3.) :
a. Para 116 of the Manual of Office Procedure needs to be reworded as
follows:.
"Communication of Official Information; Every Government Servant shall, in
performance of his duties in good faith, communicate to a member of public
or any organization full and accurate information, which can be disclosed
under the Right to Information Act. (Nothing stated above shall be construed
as permitting communication of classified information in an unauthorized
manner or for improper gains to a Government Servant or others)."
b. Para 118 (1) should be deleted.
c. The State Governments may be advised to carry out similar amendments
in their Manuals) if such provisions exist therein.
Shailesh: Procedural; even if not done, RTI override remains. Infact the
argument at some future time can be that wherever conflicting statements
have not been removed, it is intentional.*
ARC: 7. Classification of Information (Para 4.1.8) :
a. The GOI should amend the Manual of Departmental Security
Instructions in the following manner:
i. Information Deserving Classification (Para 3):
It would be advisable for each Ministry/Department to identify the information
which deserves to be given a security classification.
Ordinarily, only such information should be given a security classification
which would qualify for exemption from disclosure under the Right to
Information Act, 2005, The classification of documents should be done as
per following guidelines:
(clipped)
Explanation:* The above mentioned classification should be generally followed.
It is quite possible that information may be covered by more than one
exemption; in that case the information should be given the classification
of the higher category. Also if it is felt by the competent authority that
circumstances of a case demand a higher classification than what is
indicated above, then the same may be done by an authority, which is
empowered to give such a classification,
Provision should be made to include annual confidential reports of officers and
examination question papers and related matters in the exemptions under the
RTI Act. This may be done by way of removal of difficulties under Section
30.
ii. Upgrading and Downgrading (Para.2.3):
Documents once classified as "Top Secret" or "Secret", should remain so
classified *as* long as required but not exceeding 30 years. Documents
classified as confidential and restricted should remain so for a period not
exceeding 10 years. However, the ompetent classifying officer may for
reasons to be recorded in writing authorise continued classification beyond
the period prescribed above if information, the disclosure of which would
cause damage to national security or national interest. A recipient officer
of appropriate rank in a Ministry or Department may upgrade the security
classification of a document received from outside) but this raised
classification will be limited only to the Ministry or Department. (S)He
will, however) have no authority to downgrade the security classification of
a document received) without the concurrence of the originator. Within the
same Department) an officer superior to the originator would have the
authority to downgrade or upgrade the classification.
(iii)Officer authorised to accord the grading:
Top Secret Not below Joint Secretary
Secret Not below Deputy Secretary
Confidential Not below Under Secretary
The State Governments may authorise officers of equivalent rank to
accord the grading.
Shailesh: Section 7 : One of the most damaging provisions. By this, we are
getting into a RTConfidentiality, and subverting the RTI Act completely. If
we wanted Secretaries to d**ecide Confidentiality and transparency, we have
been almost doing this for years. If we have to accept their good sense, we
are being na�ve. Most average Citizens have neither the capability or
willingness to go about challenging such provisions, and only the few who
can will use RTI. Even presently it is a struggle to get documents which the
Govt. wants to hide.
RTI was a codification of our Right To Know; now a codification of
Confidentiality is proposed.
8. Building Institutions (Para 5.2.5):
a. Section 12 of the Act may be amended to constitute the
Selection Committee
of CIC with the Prime Minister) Leader of the Opposition and the Chief
Justice of India. Section 15 may be similarly amended to constitute the
Selection Committee at the State level with the Chief Minister) Leader of
the Opposition and the Chief Justice of the High Court.
b. The GOI should ensure the constitution of SICs in all States within 3
months.
c. The CIC should establish *4* regional offices of CIC with a
Commissioner heading each. Similarly regional offices of SICs should be
established in larger States.
d. At least half of the members of the Information Commissions
should be drawn
from non civil services background. Such a provision may be
made in the Rules under the Act, by the Union Government) applicable to both
CIC and ICs.
Shailesh: 8 a) the exalted Chief justices are being included, after they
have so far demonstrated a reluctance to even acknowledge RTI. b) Repeats
what the RTI Act had stipulated without even a condemnation of the fact that
the law has not been followed.
c) Good suggestion.
d) It is more important who is selected. Civil servants like Aruna, Harsh,
Amitabh Mukhopadhyay and Arvind and many others would be welcome anyday.
There are many other Civil servants so called Civil Society Representatives
who will be glad to be picked and stay around.
ARC: 9. Designating Information Officers and Appellate Authorities (Para
5.3.4):
(i) All Ministries/ Departments/Agencies/Offices with more than
one PIO have
to designate a nodal Assistant Public Information Officer with the authority
to receive requests for information on behalf of all PIOs. Such a provision
should be incorporated in the Rules by appropriate governments.
(ii) PIOs in Central Secretariats should be of the level of at least
Deputy Secretary /Director. In State Secretariats) officers of similar rank
should be notified as PIOs. In all subordinate agencies and departments
officers sufficiently senior in rank and yet accessible to public may be
designated as PIOs.
(iii) All public authorities may be advised by the Government of India
that along with the Public Information Officers they should also designate the
appellate authority and publish both, together.
(iv) The designation and notification of Appellate Authorities for each
public authority may be made either under Rules or by invoking Section 30 of
the Act.
Shailesh: (i) & (ii)The present Act has fairly elegantly designed the
requirements of PIOs and APIOs. The thrust of these suggestions will reduce
the accessibility of PIOs which the present Act offers.
(iii) Already 4 (b) (xvi) asks PIOs names to be published.
ARC: 10. Organising Information and Record Keeping (Par a 5.4.11):
a. Suo moto disclosures should also be available in the form of
printed, priced publication in the official language, revised periodically
(at least once a year). Such a publication should be available for
reference, free of charge. In respect of electronic disclosures, NIC should
provide a single portal through which disclosures of all public authorities
under appropriate governments could be accessed, to facilitate easy
availability of information.
b. Public Records Offices should be established as an independent
authority in GOI and all States within 6 months by integrating and
restructuring the multiple agencies currently involved in record keeping.
This Office will be a repository of technical and professional expertise In
management of public records. It will be responsible for supervision)
monitoring) control and inspection of record keeping in all public offices.
c. Public Records Office would function under the overall supervision
and guidance of CIC/SIC
Shailesh: a) Repeats Section 4 requirements; b) and c) are statements of
good intent.**The RTI act is replete with them. Additions will not do
anything.*
ARC: d. As a one time measure, GOI should earmark 1% of the funds
of all Flagship
Programmes for a period of five years for updating records, improving
infrastructure, creating manuals and establishing the Public Records
Offices. (An amount not exceeding *25%* of this should be utilized for
awareness generation).
e. As a one time measure, GOI may create a Land Records Modernisation Fund
for survey and updation of all land records. The quantum of assistance for
each State would be based on an assessment of the field situation.
f. All organizations, which have jurisdiction over an area equal
to or exceeding a district, should be funded and required to complete
the process
of digitization by the end of 2009. All sub-district level organizations
should complete this task by the end of 2011. The controlling
Ministries/Departments at Union and State level should lay down a detailed
road map for this purpose with well-defined milestones within 6 months, so
that this could be implemented as a priority' item in the Eleventh Five Year
Plan.
Shailesh: Good suggestions.
ARC: 1l. Capacity Building and Awareness Generation (Para *5.5.5)'.*
a. Training programmes should not be confined to merely PIOs and APIOs.
All government functionaries should be imparted at least one day training on
Right to Information within a year. These training programmes have to be
organized in a decentralized manner in every block. A cascading model could
be adopted with a batch of master trainers in each district.
b. In all general or specialized training programmes, of more than 3 days
duration, a half-day module on Right to Information should be compulsory.
c. Awareness campaigns should be entrusted to credible non profit
organizations
at the State level. They should design a multi-media campaign best suited to
the needs, in the local language. The funds earmarked (as mentioned in para
5.4.11. d) could be utilized for this purpose.
d. Appropriate governments should bring out guides and
comprehensible
information material within the prescribed time.
Shailesh: Full of empty inanities; but nothing one would not accept.*
ARC: e. The CIC and the SICs may issue guidelines for the benefit of
public authorities and public officials in particular and public in general
about key concepts in the Act and approach to be taken in response to
information
requests on the lines of the Awareness Guidance Series referred to above
(para. 5.5.1).
12. Monitoring Mechanism (Para 5.6.4):
a. The CIC and the SICs may be entrusted with the task of
monitoring effective
implementation of Right to Information Act in all public authorities. (An
appropriate provision could be made under Section 30 by way of removal of
difficulties).
b. As a large number of Public Authorities exist at regional, state)
district and sub district level, a nodal officer should be identified
wherever necessary by the appropriate monitoring authority (CIC/SIC) to
monitor implementation of the Act.
c. Each public authority should be responsible for compliance of
provisions of the Act in its own office as well as that of the subordinate
public authorities.
d. A National Coordination Committee (NCC) may be set up under the
chairpersonship
of the Chief Information Commissioner -with the nodal Union Ministry) the
SICs and representatives of States as members, A provision to this effect
may be made under Section 30 of the Act by way of removing difficulties. The
National Coordination Committee would;
i. serve as a national platform for effective implementation of
the Act)
ii. document and disseminate best practices in India and elsewhere,
iii. monitor the creation and functioning of the national portal for
Right to Information)
iv. review the Rules and Executive Orders issued by the
appropriate governments
under the Act,
v. carry out impact evaluation of the implementation of the Act and
Shailesh: a) is a requirement of the Act. b),c) and d) could be useful.
Sections 14,15 & 16- Good suggestions.
ARC: 17. Application to Non Governmental Bodies (Para 6.6.6):
a. Organisations which perform functions of a public nature that
are ordinarily
performed by government or its agencies, and those which enjoy natural
monopoly may be brought within the purview of the Act.
b. Norms should be laid down that any institution or body that has
received 50% of its annual operating costs) or a sum equal to or greater
than Rs.l crore during any of the preceding 3 years should be understood to
have obtained 'substantial funding' from the government for the period
and purpose
of such funding.
c. Any information which, if it were held by the government,
would be subject
to disclosure under the law, must remain subject to such disclosure even
when it is transferred to a non-government body or institution.
d. This could be achieved by way of removal of difficulties under
Section 30 of the Act.
Shailesh: a. Section and 2 (f) covers all information relating to any
private body which can be accessed by a public authority under any other law
for the time being in force;
b. Is effectively covered under Section under Section 2
(d).
c. If it could be implemented, would be good, but then the
same purpose is covered by Section 2 (f) and the Public interest override
of Section 8 (2).
ARC: 18. Time Limit for Information Beyond* *20 Years ( Para 6.7.6 ):
a. The stipulation of making available 20-year-old records on request
should be applicable only to those public records which need to be
preserved for such a period. In respect of all other records, the period of
availability will be limited to the period for which they should be
preserved under the record keeping procedures.
b. If any public authority intends to reduce the period up to which
any category
of record is to be kept, it shall do so after taking concurrence of the
Public Records Office as suggested in para 5.4.11.
c. These recommendations could be implemented by way of removal
of difficulties
under Section 30 of the Act.
Shailesh: Obvious even now that the present Act implies the same thing.
ARC: 19. Mechanism for Redressal of Public Grievances (Para 6.8.3):
a. States may be advised to set up independent public grievances redress
al authorities to deal with complaints of delay, harassment or corruption.
These authorities should work in close coordination with the
SICs/District Single
Window Agencies, and help citizens use information as a tool to fight
against corruption and misgovernance, or for better services.
Shailesh: If they let Citizens use RTI they will achieve all of this.
ARC: 20. Frivolous and Vexatious Requests (Para 6.9.5):
a. Section 7 may be amended to insert sub section (10) as follows:
"The PIO may refuse a request for information if the request is manifestly
frivolous or vexatious. Provided that such a refusal shall be communicated
within 15 days of receipt of application, with the prior approval of the
appellate authority.Provided further that all such refusals shall stand
transferred to CIC/SIC, as the case may be and the ClC/SlC shall dispose of
the case as if it is an appeal under section 19(3) of the RTI Act".
Shailesh: To most authorities giving information is anathema, and giving
them such a superb tool of being able to label requisitions of information
from Citizens as �frivolous and vexatious� will be a sure way to kill the
Act, and thwart the average Citizen. This is indeed the unkindest cut of
all,- the dagger of Brutus is out. *
Without even looking at the fact that the Information Commissions arew
unable to cope, it proposes to overburden them with trying to resolve issues
of frivolous and vexatious requisitions.
ARC: b. It may be provided that information can be denied if the work
involved in processing the request would substantially and unreasonably
divert the resources of the public body.
Provided that such a refusal shall be communicated within 15 days of receipt
of application, with the prior approval of the appellate authority.
Provided further that all such refusals shall stand transferred to CIC/SIC,
as the case may be and the CIC/SIC shall dispose of the case as if it is an
appeal under section 19(3) of the RTI Act.
Shailesh : Section 7 (9) indirectly covers the same ground.
022 32903776; 26001003
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I have now decided to decline the offer to renew and extend my term, after consulting them once again. There are several reasons for this decision. One reason is the greater role I see for myself in trying to work for the implementation of the RTI and the NREGA at a grass root level. It was of course always clear that the struggle would not cease when the legislations were passed, and that questions of implementation are crucial if these benefits are to reach the people.