RTI a CT Challenges ahead Bimal Julka Information

RTI a. CT: Challenges ahead Bimal Julka, Information Commissioner, Central Information Commission New Delhi. 1

RTI AT A GLANCE Preamble of the Act: An Act to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority Harmonising the conflicting interests Informed citizenry and transparency of information vs. Other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information 2

CRITICAL ISSUES IN GOVERNANCE �Government and Governance �National Values �Securing Justice and its access �Empowerment of People �Employment and Regional Diversity �Delivery of Services �Capacity Building �Corruption and Electoral Reforms 3

Public Good and Public Interest � “Public Interest” means general welfare of the public; something in which the public as a whole has a stake- Black’s Law Dictionary � Frivolous or motivated Public Interest Litigations detract from the time and attention which courts must devote to genuine causes. SC (April, 2018) � The expression "public interest" must be viewed in its strict sense with all its exceptions SC (2012) in the context of RTI Act � “Public Interest“ does not have a rigid meaning and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs- SC (1952) 4

Right to Information vs. Grievance Redressal: Section (f) and 2 (j) Definition of Right to Information � “Right to Information” Judicial Pronouncements � means the right to access information held by or under Proceedings under the RTI Act not to be converted into adjudication of proceedings disputes as to for the correctness of the information furnished. the control of any Public (HC of Delhi, 2017, 2016, 2013) Authority- Section 2 (j) � Information Commission to only decide on right to get information and not the dispute between parties. (SC, 2012). � Reasons, Opinions, Advises, not covered (SC, 2011, 2010) 2010 5

Recent experiences in dealing with Grievance related matters Public Authority Facts of the matter � LIC of India � All and sundry Third Party Information sought by Disgruntled Employee. (Sep, 2019) � Delhi � Clarification regarding correctness of the conversion of a Third Party leasehold property to freehold property (Sep, 2019) Development Authority � National Insurance Co. Ltd � M/o Health and Family Welfare � Reasons for repudiating Appellant’s claim, (Sep, 2019) � Time bound promotion and Dynamic Assured Career Progression (DACP) Scheme benefit sought (Sep, 2019) � MHRD � Grievance regarding own pension fixation, Reasons for difference between Vth and Vith CPC sought (July, 2018) 6

Section 2 (h): Definition of “Public Authority” � � SC 2013: Thalapallam Service Cooperative Bank Ltd: Held that the Burden to Prove that a body is a “Public Authority” or not is on Information seeker: Whether needs reconsideration? 7

Fair Price Shops whether under RTI Act? � There is an increasing allegation of misfeasance and malfeasance committed in fair price shops coming to the notice of the public, the RTI Act can be potent weapon to check such illegal and criminal activities of the staff employed in those shops. - A. C. Sekhar vs. Dy. Registrar of Co-Operative Societies (Madras HC, 2008) � Thallapallam Test: � Body Owned: A body owned, means to have a good legal title to it. Having the ultimate control over the affairs of that body � Body Controlled: Control Must be of substantial nature. Mere ‘supervision’ or ‘regulation’ as such by a statute or otherwise of a body not sufficient � Substantial Financing: Substantially literally means solid, massive, etc. Merely providing subsidiaries, grants, exemptions, privileges, etc not funding to substantial extent. � NGOs Substantially Financed: Government may not have statutory control over the NGOs as such still it can be established that a particular NGO has been substantially financed directly or indirectly by funds provided by the Appropriate Government. 8

Section 2 (h): DAV College Trust Public Authority- SC 2019 ctd. . . . � SC 2019: Substantially Financed NGO is a Public Authority. � What is Substantial Financing: � � No hard and fast rule for determining ‘Substantial Financing’ Substantial Financing means a large portion necessarily a major portion or more than 50%. not Land given free of cost or on heavy discount /cheap price, to body would mean that it is substantially financed. Indirect Funding exists even if reduction in state’s financial contribution during the actual funding. 9

Section 2 (h): DAV College Trust Public Authority- SC 2019 ctd. . . . � Substantially Financing to be determined on facts of each case. Finance may be more than 50% but still body my not be substantially financed � Small NGO with total capital of Rs. 10, 000/- getting grant of 50 % (Rs. 5, 000/- ) from Government not “Substantially Financed” � However body receiving several crores of Rupees as Government Grant which may be less than 50 % of funding can still be a “Substantially Financed”. � If Functioning dependent on Government Funds then body is a Public Authority � Right of Citizens to know whether money given to an NGO or any other body is used for the requisite purpose or not: 10

Public Authorities declared by the Commission: Examples � SBI Life Insurance Company Ltd: State u/a 12 of the Constitution of India HC of Kerala (31. 07. 2017) HC Order stayed by SC (Order dated 02. 2018) � Council for Indian School Certificate Examinations (CISCE): CIC Order declaring it as Public Authority (01. 09. 2016) � quashed by the HC of Calcutta National Stock Exchange of India Ltd: CIC Order declaring it as Public Authority stayed by HC of Delhi (Order dated 21. 08. 2012) � Krishak Bharati Cooperative Ltd. CIC Order declaring it as Public Authority stayed by HC of Bombay (Order dated 06. 07. 2010) � LIC Housing Finance Limited: CIC Order declaring it as Public Authority stayed by HC of Bombay (Order dated 18. 01. 2010) 11

Section 4: Suo Motu Disclosures � Suo Motu Disclosurefor � � � Minimum Resort to RTI Act. (SC, 2011), Awareness of Citizens Status of Implementation of Section: -4 “Section 4 merelysets out the obligationsof the public authoritiesbut not the machinery to enforce the implementationof these obligations. ”– Del HC (2010) � Do. PT OM dated 15. 04. 2013 - Guidelines for implementationof Suo Motu Disclosure � Do. PT OM dated 29. 06. 2015: User friendly access to information, training modules for professional upgradation of employees, effective grievance redressal mechanism to reduce RTIs, clear record retention policies, etc. 12

Section 4: Transparency Audit q Transparency. Audit of Disclosures u/s 4 of the Right to Information Act by the Public Authorities- November 2018 � Total Public Authorities Audited: 838: Grade/ Score of Marks Number of PAs %age of PA A (90 -100%) 158 19% B (80 -89%) 157 19% C (70 -79%) 118 14% D (60 -69%) 113 13% E (Below 60%) 292 35% Total 838 100% 13

Recent experiences in dealing with suo motu disclosure matters Public Authority � JCIT, Bokaro and Hazaribagh � Medical Council of India Facts of the matter � Number of RTI applications/ Appeals filed. Jurisdiction of various ITOs (Sep, 2019) � Min. Qualification to sign Laboratory Reports. Eligibility of candidates holding M. Sc or M. Sc with Ph. D Degree not registered with MCI to sign Medical laboratory Reports (Sep, 2019) � MCI Instructed to disclose IMR Registration Number of Doctors. (April, 2019) Decision complied 161 Doctors blacklisted(June, 2019) � DDA/ NBCC � Heads under which the Maintenance Amount charged from residents of Rohini Heights Apartment would be spent, Service conditions for maintenance of 1) Lifts; (2) Lights; and other amenities. (Sep, 2019) � National Aids Control � Note-sheet and correspondence pages of the third party audit of the suo motu disclosure package under the RTI Act (Sep, 2019) Organisation (NACO) 14

Recent Experiences in dealing RTI matters Public Authority : M/o Urban Development �L&DO Department instructed to suo motu place the details of leased properties on their website u/s 4 of RTI Act, 2005 in view of the dispute regarding non-utilisation of land by United India Periodicals Private Limited for the purpose the allotment was made by L&DO Dept (Decision Dated 07. 03. 2019) �Disclosure of sanctioned plan of a mall allowed in view of the judgement, Ferani Hotels Pvt. Ltd. Vs SIC, Mumbai SC (2018)- Decision dated 18. 02. 2019) �Suo Motu disclosure of list of fitters selected in written examination and called for personal interview allowed. Decision dated 04. 08. 2018 15

Public Authority : D/o Revenue �Husband Wife Marital Disputes: . Appellant claiming maintenance from husband sought his gross/ net taxable income. Respondent directed to provide information Division Bench of MP HC dated 15. 05. 2018 (Decision dated 18. 06. 2019) �TEP matters: Action taken on Complaints sought; prayer for time bound completion of TEPs made by information seekers. �Cambata Aviation Pvt Ltd. , Balance Sheet and P/L A/c disclosure allowed to employee not paid dues/ statutory benefits (Decision dated 19. 04. 2018) � Details of Charitable Public Trust/ Societies claiming tax exemption u/s 12 A of the IT Act, 1961 allowed since the Government granting several exemptions to the Trust from payment of taxes. (Final Decision dated 05. 01. 2018) �SIT for Black Money, a Public Authority- (Decision dated: 10. 2017) 16

Public Authority : SEBI q. Advisory to take time bound action in the Saradha Realty India Ltd/ Sunshine Agro matter and disclose broad outcome on the website (Decisions dated 31. 05. 2019 and 14. 05. 2018) � SEBI advised to check fraudulent and unfair trade practices prevalent in the capital market through unsolicited calls. Decision dated 15. 10. 2018 �Disclosure of companies/ persons convicted under SEBI (Insider Trading, Prohibition of) Regulations since 1993 and SEBI (PFUTP) Regulation, 2003 for issues such as vanishing companies, price rigging, insider trading, etc. In the interest of investing public SEBI advised to play a visionary role as Capital Markets Regulator. (Date of Decision: 10. 03. 2017) 17

Transfer of RTI applications: Section 6 (3) � (Delhi HC, 2017) Transferring the application to various schools is unsustainable. PIO required to provide all information sought, subject to exceptions under the Act. � (Delhi HC, 2014): CPIOs duty not limited to forwarding the applications to different departments/offices. Forwarding applications to another Public Authority is not the same as arranging the information from a PIO of the same organisation. � (Delhi HC, 2009) Information seekers not to be driven away through sheer inaction or filibustering tactics of the public authorities or their officers. It is to ensure these ends that time limits have been prescribed, in absolute terms, as well as penalty provision. � (Delhi HC, 2009) PIO is the pivot for enforcing the implementation of the RTI Act and is expected to apply his / her mind, duly analyse the material before him / her and then either disclose the information sought or give grounds for nondisclosure. � (Do. P&T OM dated 24. 06. 2008) Responsibility of Public Authority and PIO not confined to furnishing information but also to provide necessary help to the information seeker, wherever necessary. 18

Section 8: Exemption from Disclosure of Information: Landmark Decisions � � � Section 8 (1) (d) Sanctioned Building Plan to be mandatorily disclosed by a developer. The Apex Court in Ferani Hotels Pvt. Ltd. Vs SIC, Mumbai held that the fate of purchase of land development and investments is a matter of public knowledge and debate. - SC (2018) Information can be disclosed u/s 8 (1) (d) where larger public interest found- Bombay HC (2011) 19

Section 8 (1) (e) � UPSC Raw and Scaled Marks not Disclosed- (SC) (2018). � Evaluated answer sheet allowed to be disclosed / inspected (SC) (2018)/ Del HC (2018) � CIC Order dated 18. 06. 2018 (Mohit Kr. Gupta vs DU) allowing inspection of DU 4 th Semester LLB Answer Sheet to Candidate upheld by Hon’ble High Court of Delhi (Decision dated 24. 09. 2018) � Income Tax Returns is Information held in a fiduciary capacity – (Bombay HC) (2015)/ G. R. Deshpande SC (2012) � Anything given and taken in confidence expecting confidentiality to be maintained is information available in fiduciary relationship- SC (2011) 20

Section 8 (1) (j) � � Transfer and Posting details of Third Party Employees exempted under the RTI Act (C S Shyam, SC, August, 2017) Performance of employee a matter between employee and employer - (SC) (2012) 21

Section 8 (1) (g) � � Applicants not entitled to the disclosure of names of the examiners- (Kerala HC) (2016) Information endangering the life and physical safety not to be disclosed: (SC) (2011) Section 8 (1) (h) � Mere pendency of an investigation or inquiry not sufficient for withholding information- (Delhi High Court) (2014) 22

Canara Bank vs. CS Shyam SC, 2017 - Implications � Information sought on 15 points regarding transfers of clerical staff and staff of the Bank including personal details such as the date of joining, designation, details of promotion earned, etc. � Information denied on the ground that (i) information personal in nature; (ii) exempted u/s 8 (1) (j) of the Act; (iii) larger public interest not demonstrated � Disclosure not allowed by SC while relying on G. R. Deshpande vs CIC (SC, 2012) and R. K. Jain vs. Union of India (SC, 2013). � Decision relied: by HC of Chhattisgarh in: 2019 - copy of oath taken by certain HC judges. 2017 - voluntary retirement of Additional District Judge and Complaints filed against judge � Canara Bank Decision vs. Section 4 of the RTI Act, 2005 23

Contradictory Decisions in RTI Jurisprudence by different High Courts Disclosure of Salary Details of Spouses in Matrimonial Disputes Decision on providing Gross and Net Taxable Income Stayed(Karnataka HC) (2017 and 2019) Wife entitled to know remuneration of husband 8 (1) (j) not applicable. Case of Girish Ramachandra Deshpande distinguished(MP HC) Division Bench, (2018) Bombay HC (2018) 24

Section 8 (1) (h): Pending Investigation/ Apprehension/ Prosecution of offenders Delhi High Court: - Mere Pendency of Investigation Note sheet of case before Special Judge, CBI- not a ground for denying III Patna denied as source of information triggered anti-corruption proceedings (2014) that should not be affected or source of information compromised. However documents could be called by trial court if so prayed by information seeker 2019 25

Section 19 : Delegation of Power to Inquire. Contradictory Decisions Delhi High Court: - Bombay High Court: - Delegation of Commission has power to inquire power to direct not allowed- 2010 (Division Bench) inquiry 2013 (Single Bench) 26

Section 22: RTIAct Override other. Acts/Rules Act overrides University Fee Regulations, Raj. HC (Division Bench) 2012 � Information Over-riding effect of RTI Act over Army Rule, 184 and Do. PT Instruction 2009, 2012 (Single Bench) � No inconsistency between � RTI q could be obtained under Karnataka High Court Act and Rules instead of RTI Act (Karnataka HC) (2008) RTI Act and SC Rules hence SC Rules to prevail-Del HC (2017) 27

Section 24: Exempted Organisations Section 24 � Section 24 (1): Act not to apply to intelligence and security organisations except for Corruption and Human Rights Violation Judicial Pronouncements � Action taken on complaint before ED regarding alleged economic offences and violation of FEMA by Thomas Cook India Ltd. The Commission advised the Respondent to disclose only the broad outcome of Complaint. Order set aside by HC on the ground that information did not pertain to allegations of corruption and human rights violation. (HC of Delhi 19. 02. 2018) � Action taken on TEP sought. DGIT (Inv) instructed to convey status of TEP. Decision stayed by HC with direction to Department to furnish Affidavit stating that the complaint is investigated by the DGIT (Investigations) and not any other Office. (HC of Delhi 22. 12. 2017) 28

Other Recent Significant Judgements (HC/SC) in RTI � Right of examinee to obtain answer sheet either under RTI Act or Rules/ Guidelines of ICAI- SC, 2019 � CPIO alone responsible under the RTI Act, 2005. Penalty cannot be imposed against the FAA- HC of Delhi (2018) � Ignorance of law not an excuse. PIO deemed to have knowledge that he should have acquainted himself thoroughly with the provisions of the RTI Act. HC of Himachal Pradesh (2018) � File Noting of Junior Officer not exempted information as per Section 8 (1) (e)HC of Delhi (2018) � Practicing Advocate invoking provisions of the RTI Act for getting information on behalf of his client does not advance the objects of the scheme of the RTI Act. Citizen can himself seek information. – HC of Madras (2017) � Reasons shall be put on the website of the Supreme Court, regarding recommendation(s) sent to the Government of India, for elevation of judges for ensuring transparency of collegium system- SC Resolution, 2017 29

Way Forward � Suo-motu disclosure of information: Section 4: Suo motu disclosure of information by all public authorities at regular intervals on public platforms like the Internet is critical for ensuring access to information. � Improvements of Record Keeping of Public Authorities � Sensitization and Awareness Generation amongst Information Seekers and Givers regarding RTI Mechanism � Greater Awareness and Understanding of the term ‘Public Interest’ � Role of Judiciary 30

Thank You 31