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The empire strikes back::Having failed to push through the amendment to the RTI Act, the Government is now attempting to bring it in through the backdoor.

Posted by rtiact2005 on August 28, 2006

The empire strikes back

Vidya Subrahmaniam

http://www.thehindu.com/2006/08/25/stories/2006082504181100.htm 
Having failed to push through the amendment to the RTI Act, the Government is now attempting to bring it in through the backdoor.

 

 

 

— Photo: Shiv Kumar Pushpakar.

SPEAKING UP: Activists of various organisations at a rally in support of the Right to Information Act, in New Delhi.

 

AUGUST 18, 2006: The Right to Information camp in the centre of the Capital’s bustling protest square at Jantar Mantar is crackling with excitement. RTI activists have informally learnt that they may have succeeded in pushing back the Union Cabinet’s threatened amendments to the Right to Information Act, 2005 — including most crucially an amendment to prohibit access to file notings — which they are convinced will destroy the soul of the hard-won legislation. Their optimism centres on Congress president Sonia Gandhi but for whose persistence the RTI Act would have remained a dream, and who, it is known, is discomfited by the attempts to dilute the landmark legislation.

But they are not shutting shop yet, at least not till they have it on the authority of the Department of Personnel and Training (DoPT) — the nodal agency for the RTI Act under the Ministry of Personnel and Public Grievances — that the amendments have been truly laid to rest. Indeed, for Nikhil De, Sandeep Pande, Shekhar Singh, and other RTI warriors, the flicker of hope — and the fear that the hope could be belied — is all the more reason to keep the adrenaline flowing.

In one corner, activists are holding a referendum on the proposed amendments. The ballot provides voters two options: they can support the amendments or oppose them, and expectedly the yes votes have a mammoth lead. Aruna Roy, the leading light of the RTI movement, pops in to check on the referendum and to catch the buzz on the amendments. Villagers from different States sit in circles narrating their experiences with the RTI Act. The sound of the bugle alerts them to the start of a mock play, and to the beat of drums, they sing: Bangla, gaadi, main nahi maanga, ubla anda, main nahi maanga, chhole bhature, uncle chips, main nahi maanga; muster roll, maine maanga, bill voucher copy, file copy, ration card, maine maanga, soochna ka adhikar, maine maanga (we do not ask for bungalow, car, boiled eggs, uncle chips or chhole bhature; we ask for muster roll, bill voucher copy, file copy, ration card; we ask for our right to information.)

August 19, 2006: Victory is in the air. Suresh Pachauri, Minister of State for Personnel and Public Grievances, has just announced that the proposed amendments will not go through in the monsoon session of Parliament. In the Congress party headquarters, Digvijay Singh tells journalists that the amendments are as good as withdrawn forever. In Maharashtra, Anna Hazare breaks his fast, and in Delhi, the RTI protest camp rolls down the shutters. Ms. Aruna Roy and her band of never-say-die activists are nevertheless nervous: It cannot be that a Government that has resisted the RTI Act with all its might will so easily give up.

Swift retribution

Yet even they could not have known that retribution would be so swift in coming. Two days after Mr. Pachauri’s much-hyped promise not to tinker with the original Act, his Ministry turned on the Central Information Commission, the final appellate authority under the Act — indeed the very backbone of the Act. The DoPT challenged the Commission’s jurisdiction in two vital areas — its power to enforce the Act according to its understanding, and its power to requisition records from government, government departments, and public authorities substantially funded by the Government (the second power available to the CIC under Section 18 (3) of the Act). If this was disconcerting, there was further bad news for the CIC and RTI enthusiasts. The Supreme Court suggested its own amendments to the Act, which, if passed, would for all practical purposes place the judiciary outside the purview of the Act.

Leaving aside the courts for the moment, the DoPT’s twin strikes amounted to this: If the RTI Act cannot be diluted by legal and political means, it will be diluted by subterfuge — by browbeating the CIC into toeing the government line; by reducing the Commission to a toothless body incapable of delivering on its bold promise to the commonest of common citizens: his or her right to access any information from any public authority barring some exceptions.

So far, the main battle between the DoPT and the CIC has been on file notings. The Department defiantly held them to be secret and proclaimed so on its website, leading virtually to all of the Government turning down requests filed under the RTI Act for file notings. The Commission not only ruled in case after case that the Act provided for access to file notings, it also repeatedly directed the Department to remove the misleading claim from its website. Finally, on July 13, it ordered the DoPT to do so or face action.

Now, matters have come to a head with the DoPT firing from the shoulders of Additional Solicitor General Gopal Subramanium. In Mr. Subramanium’s opinion — appended to a letter dated August 21 addressed to the CIC by L.K. Joshi, Secretary to the Ministry — the CIC’s July 13 order to the DoPT asking it to remove the website posting related to file notings was “plainly in excess of the lawful authority conferred on the Commission under Section 19 of the Act.” The Additional Solicitor General held the July 13 order to be “void” also because it was passed by a single member of the Commission.

Mr. Subramanium did not pass judgment on the rights and wrongs of file notings; he said the Commission had overreached itself in asking the DoPT to back off on file notings. Yet the legal opinion raises several questions. If the CIC cannot ask the DoPT to drop its claim that file notings are sacrosanct, then does it not mean that the DoPT can and will continue to make that claim? That the Government as a whole will go by the DoPT’s claim rather than by an Act passed by Parliament? Does this not amount to facilitating the backdoor entry of the amendment to disallow file notings? Also, does it not raise larger doubts vis-à-vis the Commission’s power to enforce the Act as it understands it? If it cannot perform its basic function, what use is the Commission?

The irony is that even those who want file notings withheld from scrutiny, including much of the bureaucracy, admit that the Act as it stands can only be interpreted as permitting their disclosure. When the Commission ruled in favour of file notings — for the first time on January 31, 2006, in the Satya Pal case — it relied largely on Section 2 (f) of the Act, which includes in the definition of information “records, documents, memos, e-mails, opinions, advices … ” File notings are nothing if not opinions and advices.

The DoPT’s second battle with the CIC has implications that go even farther. The DoPT has obtained a stay from the Delhi High Court against the Commission’s directive seeking inspection of the correspondence between President K.R. Narayanan and Atal Bihari Vajpayee exchanged during the anti-Muslim Gujarat riots of 2002. Says Mr. Shekhar Singh: “The DoPT would have been free to move the High Court had the CIC ruled in favour of disclosure of the correspondence. But to say that they will not allow the CIC even to look at the papers is [to] strike at the root of the RTI Act. How can one expect the CIC to rule whether some information should be made public or not if it is not allowed to examine it?”

Adds civil liberties lawyer Prashant Bhushan: “If you take the two issues together, what the Government is saying is that any information it regards as exempt from scrutiny will effectively remain inaccessible. Further, in future this or any other Government can deny any information to the Commission, virtually rendering useless the provision for an independent appellate authority.”

The story then is not just about amendments to the RTI Act. It is also about a nodal Information Commission that is under attack from all sides, an Information Commission that cannot enforce its own orders, worse, that cannot access information. Can there be a bigger irony than this?

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Posted in RTI and babus | 1 Comment »

Re: File Notings: Sound and Fury signifying nothing

Posted by rtiact2005 on July 24, 2006

— In INDIARTI@yahoogroups.com, “sroy1947” <sroy1947@...> wrote:

Further to my post (awaiting moderation) on Arvind Kejriwal’s op-ed in the ToI today.

1) It seems that Arvind Kejriwal is indeed STILL an serving public
servant – transpires that he is designated as Joint Commissioner of
Income Tax of 92 batch and has been on extraordinary leave since 2000.

http://www.irsofficersonline.org/regions/Show_List_NonSubmit.asp?rgn=Leave

 

Leave

S.No.

Code No.

Name

Region

1.

72008

Smt. Pamela Bhandari, MFM

leave

2.

73034

Smt. Rupinder Nayar

leave

3.

74019

Smt. Kusum Avasthy Gupta *

leave

4.

79004

E.V. Rangamohan

leave

5.

79048

Mohan Swaroop Kaushik

leave

6.

80018

Rajesh Ojha

Leave

7.

85015

A.K. Verma, M. Tech

leave

8.

87001

Smt. Lekha Kumar, MA

leave

9.

89075

Ms. Amita Sharma, MA

leave

10.

89091

Sanjeev Jaipuriar, MA

leave

11.

91084

Jayanandayya M. Hiremath,BE

leave

12.

92069

Arvind Kumar Kejriwal

leave

13.

93065

Indira Iyer

leave

14.

93067

Himanshu S. Sinha, LLM

leave

15.

94014

Ms. Rekha Diwakar

leave

16.

96006

Ms Anesha Shahrawat

leave

Total : 16

* Indicates that the officer has got the password but yet to submit his/her profile online.

 

Considering his recent amazing nationally televised appeal to Sonia
Gandhi to overturn the considered decision of the Cabinet of
Ministers, it is high time that someone in government delves into this
bizarre situation where covenanted officers feel free to criticise
decisions of their govt unchecked.

2) It also seems that Kejriwal has received funds from foreign
agencies like Ashoka - a suspected front organisation with operations
in Brazil, Canada, Czech and Slovak Republics, France, Germany,
Hungary, Indonesia, Latin America, Middle East/North Africa, Nigeria,
Poland, Southern Africa, Spain, Turkey, United States  etc.- while he
was on "leave" and has perhaps also proceeded on private trips abroad
to the Americas - this also needs enquiry into.

3) I have consistently said that foreign agencies are out to weaken
Indian Government and carry out soft espionage using RTI using moles
and mules. In addition the information gained by this misuse of RTI
(eg. the infamous DJB scandal which is touted by Parivartan as a
success) are used to further the interests of business rivals by
eliminating Indian companies so that MNCs get the business. The latest
RTI tactic of Kejriwal to get the promotion particulars, file notings,
biodata and other private details of over 300 serving government
officers has significant espionage implications, and I sincerely hope
that the ICs hearing this pending matter keep this aspect in mind.

RTI law mutilated – ARVIND KEJRIWAL

https://right2information.wordpress.com/2006/07/24/rti-law-mutilated-arvind-kejriwal/


_______________
 --- In INDIARTI@yahoogroups.com, "sroy1947" <sroy1947@...> wrote:
>
> What is the great to do over File Notings??
> 
> Genuine RTI users (as opposed to all those foreign financed habitual
> RTI misuers) have no need for file notings.
> 
> A poll in NDTV (Hindi) last night when both Kejriwal's (Arvind and
> IC-OP.K) were interviewed found that 95% of Indians felt that RTI was
> a joke. The question then is WHO ARE THE JOKERS?? Here is my
> "scientific analysis"...
> 
> 1) 50% blame goes to the Central Info Commission which has never
> awarded penalties or compensation upon PIOs in even the most blatant
> of violations.
> 
> 2) 20% blame goes to the public authorities who are flouting the law
> unchecked by the CIC.
> 
> 3) 30% goes to Sonia Gandhi - to whom both the Kejriwals were pleading
> on national television (NDTV) to intervene and overturn the Cabinet
> decision. This is atrocious - surely serving public servants (it seems
> Arvind may still be a public servant - or has he resigned?) should
> follow their service rules and codes!!
_____________________________________________


RTI law mutilated – ARVIND KEJRIWAL

https://right2information.wordpress.com/2006/07/24/rti-law-mutilated-arvind-kejriwal/

Posted in RTI and babus | 2 Comments »

Bureaucrats who hid information head RTI commissions today – Employment exchange

Posted by rtiact2005 on July 23, 2006

Employment exchange
Bureaucrats who hid information head RTI commissions today

PADMAPARNA GHOSH
http://www.downtoearth.org.in/full6.asp?foldername=20051231&filename=news&sid=4&page=1&sec_id=4

On October 12, 2005, the Right to Information (rti) Act came into force. rti activists seemed to have won their battle to provide citizens with rights to information about the government’s working. But little had they reckoned for what was in store. Barely two months after the rti act came in to force, the legislation has become a convenient tool for retired bureaucrats to garner cosy and secure sinecures as state information commissioners (sics).

 

Once appointed, these officials cannot be removed for five years, other than through an order of the Supreme Court.

The act actually states that “each state will have an information commission headed by a sic, who will be a person of eminence in public life with wide knowledge and experience in law… social service…and governance”.

•  “We Prefer Bureaucrats”

And some of the officials who have benefited from the act fit this requirement, quite splendidly. Sample this: K K Misra, who was appointed as sic of Karnataka within 24 hours of retiring as the state’s chief secretary on July 31, 2005 actually derives eminence from a Karnataka High Court (hc) dated May 3, 2005.

On that date, the hc had ordered the state government to prosecute Misra for “perjury and withholding” documents from the court in connection with the Bangalore-Mysore Expressway project. The ex-Karnataka chief secretary has appealed against the prosecution in the Supreme Court. The case awaits the apex court’s decision.

Misra is in illustrious company. His counterpart in Orissa, Dhirendra Nath Padhi was suspended as the state’s Special Relief Commissioner on November 27, 1999, for alleged irregularities in procurement of polythene sheets for families hit by the super cyclone of 1999. A Central Bureau of Investigation probe absolved him.

Padhi was 18 months short of retirement as special secretary in the Union power ministry when he retired voluntarily and assumed charge as Orissa’s sic. O ther bureaucrats nearing retirement have also found easy pickings in an sic. A mong the other beneficiaries are B K Chakraborty in Tripura, Suresh Joshi in Mumbai and A K Vijayvargiya in Chhatisgarh (see table: Rest in peace).

Alarming
“This is a very alarming trend. The government should at least ensure that the sic of one state should not have served in the bureaucracy of the same state,” says Shekhar Singh of the National Campaign for People’s Right to Information (ncpri) and one of those involved in drafting the act. “After all as the sic, the ex-bureaucrat is quite likely to be asked for information on happenings during his tenure,” Singh explains.

The rti also provides that a state can appoint up to 10 information commissioners (ics ) besides the sic — the latter holds a rank equivalent to an election commissioner, while the former has a position equivalent to that of a state chief secretary. A maximum of 385 plum posts are up for grabs.

Are they necessary?
“I don’t think we need so many officials. Ten ics for a state is one too many,” says Wajahat Habibullah, chief information commissioner of India (But also see interview: We prefer bureaucrats).

In fact, the draft rti act, submitted by members of ncpri to the Union government in December 21, 2004 had provisions for only one central information commissioner and a few regional commissioners. However, this was not palatable to the bureaucracy, which pressed for sics and ics, and finally in April 2004 succeeded in having their say.

This was not the first time they had matters their way. Back in 2002, the National Democratic Alliance had passed the Freedom of Information (foi) Act. This act did not set any time frame for the drafting of procedures necessary for the implementation of the act. There was also no time frame for issuing a notification, bringing the act into force.

This loophole was sufficient enough for the bureaucracy to ensure that foi was never implemented. The legislation was shuttled between the department of personnel and training, and the Union ministry of law and justice. Consequently, the rules for foi were never implemented.

This time
The new rti act has plugged the loophole. Passed by the Parliament on June 15, it states that the act has to be implemented within 120 days. Drafting of rules to implement procedural matters, such as fees for application forms, has however, been left to the discretion of state governments.

This has given sufficient scope to state governments to exercise their artifice. Sample what clause six of Form d — one of the forms to be filled up by a person who requires some government related information — states: “The information whichever is given to you as a member of a below poverty line family shall not be used for any other purpose.” “This is completely against the spirit of the act,” says Sailesh Gandhi a Mumbai-based rti activist.

At a price
Information also comes at a cost. Mandarins in Orissa — among the poorest states in the country — charge an information seeker Rs 20 for an application form and Rs 5 per page of a photocopy — this when the act lays down that the form should be priced at Rs 10 and Rs 2 per page should be photocopy charge. There are other violations. The act does not stipulate any fee when a person appeals against an official who does not disclose information. But Orissa charges Rs 40 for the first appeal against such an errant official and Rs 50 for the second appeal. “If we have to file a case for each such illegality, it will take us years,” says Gandhi. Singh rues that in retrospect, a single set of central rules should have been framed.

What’s now?
A recent order from the prime minister’s office has antagonised activists such as Singh. The order allows access to only those remarks in government files that relate to development and social issues. “This definition of information is stipulated by the act. It cannot be amended by just changing one rule, for that the parliament’s sanction is required,” asserts Singh.

However, some activists remain optimistic. “These are initial problems but the act is a strong weapon if used judiciously,” says Arvind Kejriwal of Parivartan, a non-governmental organisation working against corruption. Hopefully, public departments will learn that information is to be shared and not kept under a lock and key.

——————————————————————————————————————–

We prefer bureaucrats – Wajahat Habibullah, CCIC / http://www.downtoearth.org.in

Will making bureaucrats state information commissioners affect the act’s implementation

I don’t think it will affect the act. We prefer bureaucrats because we need officials well-versed with the administration’s functioning.

Your views on the prime minister’s office’s order to exempt certain kinds of file notings from RTI?
I have not seen the order, so can’t comment on it.

How many information commissioners are being appointed for the Central Commission?

We can have 10, but we are appointing four, now. A N Tiwari, special secretary, department of personel and training will be the fourth commissioner. It’ll be good as he will continue with the ministry.

http://www.downtoearth.org.in

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