Prakash Kardaley

A year back Prakash Kardaley called me up at around 11.00am. I was busy with something and promised to call him after a while. When I called at 12.15pm, he mentioned his face was lathered for a shave. Jokingly he said, “Let us talk, since you cannot see me anyway.” We talked for about 30 to 40 minutes about various issues. Both of us felt we needed to meet and I promised to go down to Pune to meet him from Mumbai within a week for a long discussion about various matters. At about 12.45pm when I put down the phone, I did not know that that was the last time I would talk with him. In less than two hours Vijay Kumbhar called me and said, “Masterji is no more.” It was a shattering blow for many of us in the RTI movement.
I first interacted with Prakash Kardaley on the Humjanenge board. Then we met at the Lonavala RTI activists meeting he had organized in early 2004. He was a passionate, and pragmatic visionary. Prakash bonded RTI activists across the Country, and was very adaptable to change. He could chisel and craft his words with great precision. This led to his analyzing the words in the RTI act with clinical precision, without clouding his judgement . In our initial encounters he would often chide me for not reading the exact words in the Act and letting my emotions dictate my actions and arguments. I am glad I paid attention to those verbal whiplashings. Prakash was a hard taskmaster for those whom he mentored. With Vijay Kumbhar, Shivaji Raut and others I had the privilege of being angrily called ‘Gadhav’ – donkey in Marathi,- by him.
He was one of the pioneers of the RTI movement, who trained many like me. The best tribute we can pay to Prakash Kardaley would be to see the Right to Information movement transforming India’s governance and empowering the poorest Citizen. Let us all commit to make that happen very soon. That would be a worthy tribute for my Guru, mentor and friend Prakash Kardaley.

We can reduce Corruption

Using Right to Information, I have obtained evidence of two serious impediments to curbing corruption amongst Government officers in Maharashtra. Perhaps this may be true of other States as well. Both of these practices have no sanction in law, and if Citizens bring some pressure, these can be reduced considerably.
1. One fairly serious problem is that when criminal or corruption charges are leveled against government servants, an illegal practice has been followed by the State by which the Police does not enquire or investigate without getting prior approval from the particular department. This obviously delays investigations and at times,- by collusion,- no investigations take place. As per the Criminal Procedure Code the Police has to register all complaints and investigate cognizable offences expeditiously. After a crime is reported, only an investigation can reveal whether the crime has been committed. Police investigating crimes is the only way that the law enforcement system can work. The State of Maharashtra has taken a position since many decades that when a cognizable offence is alleged to have been committed by a Government servant, the State will first decide whether investigations should be allowed. This is being claimed to be done on the basis of GR ATO 2772/1-V-A of 21 February, 1972. This is illegal. Most Police officers and Government servants have been quoting this GR without reading it. A careful reading of this GR shows that it does not even talk of criminal complaints lodged with the police being referred to the Government. It only talks of how departments should first verify charges internally before rushing to ask for special investigating teams of police to conduct investigations. A perfectly reasonable GR has been misinterpreted widely for decades, leading to an illegal position being taken by the State. I would also like to mention that no GR can be issued,- even now,- to achieve this objective, since it would be a subversion of the CrPc and the rule of law.
2. Even when an investigation is conducted against Public servants and the ACB finds evidence of corruption, Section 197 of the CrPc is misinterpreted to ensure that Public servants guilty of corruption and other criminal actions are not prosecuted. Section 197 reads, “(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction”-… of the government.
This section has been misinterpreted to mean that whenever there is any charge
against a Public servant, no prosecution can be undertaken without prior sanction from the State. Thus even in cases of traps and disproportionate assets, sanction for prosecution is sought. The sanction is often delayed or not given,-depending on the bribery skills and connections of the accused. There are instances of sanction being refused after years with no reasons being given! I have obtained evidence from the ACB that in 17 cases, sanction for prosecution has not been given for over six months. In some of these the sanction was pending over five years. I would like to point out that as per Act 21 of 2006, no department can delay a file for over 45 days. Thus delays in giving sanctions should attract the charge of dereliction of duty under Section 10 (2) of this Act. There is no reason why the State cannot take action against officers responsible for delaying sanction for prosecution for over 45 days.
Powerful corrupt Public servants have developed a very good modus operandi with the collusion of other corrupt officials misusing the above two methods. First sanction for investigation (which is not required under any law) is delayed or not given. This practice is a subversion of the Criminal Procedure Code. The delays help the criminals to cover up their crimes, and the evidence. The really powerful criminals ensure that no investigation can take place. If the investigations take place,- and they are not able to influence the investigations,- they can still stall sanction for prosecution by getting departments to violate the provisions of Act 21 of 2006. Is it a surprise that honest police officials feel frustrated by this series of obstacles in bringing criminal Public servants to book? It is not surprising that they either get frustrated or decide to take the bribes which are offered very freely. The result is that the “Protection of Corruption” act is being is being enforced very effectively. This can be changed by two simple steps by the Home department:
1. A clarificatory GR can be issued that investigations against Public servants do not need any prior permission from the State. This is the law. The GR is required because of a long history of disinformation which exists.
2. A GR that the Home department will ask for action against officials under Act 21 of 2006 in case departments do not give sanctions for prosecution within 45 days. Rejection of these sanctions should be rare, and should be done by the Secretary in charge of the department with a reasoned order.
What is being proposed does not need any change of laws or setting up any special mechanism. The suggested measures are merely to enforce the existing laws.
If Citizens make these demands, a considerable reduction in corruption is possible by strengthening the hands of the Police to enforce the ‘Prevention of Corruption’ Act.

Secrets of the Prime Minister's Relief Fund

I had sought information about the PM's relief fund in June 2006 using RTI. The PMO refused to give any information about the functioning of the fund, claiming it was not a Public authority! The first appellate authority rejected my appeal. Ultimately, the information was released, on orders by the Central Information Commission. In the end of March 2007, I raised questions about the fact that in 2004-05 while 968.78 crores came into the fund for the Tsunami disaster, only 101.6 crores were spent. Even in the next year only 109.21 crores were spent. The money had been donated for the people affected by a calamity, and aid had not reached the affected sufferers. In response to this the PMO put up the following ingenious explanation on its website http://pmindia.nic.in/relief .htm. :
“Statement of Income and Expenditure for last five years is as under:

Year	Total Income	Total Expenditure	Balance
2002-03	102.65	142.24	482.88
2003-04	50.48	88.45	444.91
2004-05	968.78	101.60	1312.08
2005-06	278.06	109.21	1480.94
2006-07	144.32	181.89	1443.37

An amount of Rs. 895.42 crore has been earmaked for Tsunami Relief and Rehabilitation Schemes.
I was intrigued by this, since it meant that there was more than enough money for the victims of Tsunami and there was no immediate need. Relief funds are collected to give immediate relief to victims of calamities, and Citizens and others are moved by the suffering and give the money for this specific purpose.
To verify the accuracy of this curious claim, I again sent a RTI application to the PIO of the PMO asking : "If there is a system of allocating funds for future disbursals in each year, I want the details of the allocations made for future disbursals in 2003-2004, 2004-2005 and 2005-2006
I also asked for a copy of the minutes of the meeting in which this was decided, or any documentary evidence in that year, evidencing it.
The answer revealed that the claim on the PMO’s website was untrue. It stated, "I am to refer to your application dated 8 April 2007 under RTI on the above noted subject and to say that there is no system of prior fund allocation. Sanctions/releases are made only after the events". The relief funds are run as personal fiefdoms as my RTI queries have shown.
On 4th December, 2007 I asked the PIO of the PMO, “ As of 31st March, 2007 I want the details of the amounts deposited in banks or any other place, giving the names of the banks or Financial Institutions, amounts deposited and rates of interest.
The Public Information Officer has refused to give this information, on the bizarre grounds,““specific information regarding the FIs and the terms and conditions of the deposits may amount to disclosure of information including commercial information, trade secrets or intellectual property, the disclosure of which would harm the competitive position of third parties. Further, this information is made available to the officers of the Fund in their fiduciary relationship. The desired information is therefore covered under section 8 (1) (d) & (e) of the Right to Information Act 2005.”
The first appeal has been rejected and the matter is now before the Central Information Commission in a second appeal. It appears that there are some dark secrets which the PMO is trying to hide. Right to Information will pry and bring these into Public domain.

Definition of 'Information'

When using the Right to Information, it is necessary to understand what is ‘information’. We will look at the definition given in the Act and then attempt to understand what it means.
The Act defines ‘information’ in Section 2 (f):
2 (f) "information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;
Comments: In simple terms it means that information is anything, which exists in any form with a public authority. The specific instances –records, documents, memos, emails, opinions, advices,...,reports,..... samples,models,.. are merely meant to illustrate the broad scope. Clearly file notings are opinions, legal or other opinions obtained by Public authorities, or various reports received by them are all covered. This also lays down a very important principle. Information relating to any private body, which may not be covered by the definition of ‘Public Authority’ (given in Section 2 h), can be obtained through a public authority if the law allows the public authority to access it. Thus if any public authority has the right to ask for any information under the law from a private organisation-which is not a public authority;- the Citizen can ask for it from the public authority. A few illustrative examples of how information may be obtained from institutions which are not Public authorities:
a) Information about a private bank can be obtained from the regulator –Reserve Bank of India,- if the law permits RBI to ask for it. Most information of any significance can be accessed.
b) Information about a private unaided school--from the education department.
c) Information about a Public Limited Company –from the Registrar of Companies or SEBI if the law empowers them to ask for it.
d) Information about a Cooperative Society-from the Registrar of Cooperative Societies.
e) Information about Trusts-from the Charities Commissioner.
There is some difference of opinion on whether the term ‘accessed’ means any information which the authority can ask for under various provisos or the information which the authority is usually supposed to get under the law. As an example: The Labour office requires certain information to be submitted at certain intervals- this certainly can be accessed under Right to Information, since all information with the State is held on behalf of the Citizen. However, the labour office during an investigation, can access virtually all the records of an organisation which normally would not be done. Some RTI users argue that this proviso can therefore be used to mean any information of a private organisation can be obtained through any Public authority by invoking the special investigative powers of the Public authority. Such a wide interpretation would actually mean that all private organisations could be forced to disclose all the information with them. Most Commissions do not agree with this view, and I am inclined to agree with their view. Only the information normally accessed by the Public authorities come under the ambit of RTI. On the other hand all information with the Public authority, is certainly information covered by the Right to Information Act. The Public authority holds the information on behalf of Citizens-the owners and masters of the Government,-on their behalf. Shri Laxmi Chauhan had asked for certain information from the PIO of the Ministry of Mines about BALCO. This was refused by the PIO. The CIC in its decision in this case in No.CIC/AT/A/2007/00389 has categorically stated, “The information must be available in the annual report of the company, which under law is to be submitted to shareholders. Being a shareholder of the company, with representation on its Board of management, the information sought must be available with the Ministry of Mines, and what is available with the Ministry cannot be denied to an applicant under the Right to Information Act.” Thus, once any information is with a Public authority, it is information available to any Citizen under the Right to Information Act, subject to the provisions of the Act. Repeatedly, the Act recognises that what is with the Government is on behalf of the Citizen, who is the rightful master.

Preamble of the Right to Information Act

The preamble:
THE RIGHT TO INFORMATION BILL, 2005
A Bill
to provide for setting out the practical regime of right to information for citizens 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, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.

WHEREAS the Constitution of India has established democratic Republic;

AND WHEREAS democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Goverments and their instrumentalities accountable to the governed;

AND WHEREAS revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information;

AND WHEREAS it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal;

NOW, THEREFORE, it is expedient to provide for furnishing certain information to citizens who desire to have it

Comments: The preamble is the soul of the Act. When there is any confusion or dilemma about the meaning or interpretation of the provisions, it should be tested on the touchstone of the preamble. Just as the basic features of the Constitution are unalterable, and form the basis for interpretation of laws, the preamble of an Act should be understood to arrive at the objectives of the Act. The fact that the Right to Information is part of the fundamental rights of Citizens under Article 19 (1) has been recognised by various Courts, since the landmark decisions in the Raj Narain case, S.P.Gupta case and the ADR case amongst others.
This is not a new right conferred on the Citizens but is a part of our Fundamenatal right to Freedom of Expression under Article 19 (1).
The legislative intent is clear when it admits the need for an informed citizenry, “to contain corruption and to hold Governments and their instrumentalities accountable to the governed.” Thus the objective of this Act is to enable Citizens to hold all the instrumentalities of the Government accountable. In the next paragraph it recognises that in doing this, there may be a conflict with other public interests including running the Government and limited fiscal resources. The last paragraph unequivocally declares ,” AND WHEREAS it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal;” . Thus it is clear that in making the law, Parliament has recognised the need to harmonise different needs for running the Government and harmonised them with the paramountcy of the democratic ideal. Very often the various functionaries arrogantly assume that they are a better judge of what is good for governance, and therefore misinterpret all laws through their paradigm of what will lead to good governance. They must understand that these aspects have been considered actively by the lawmakers when framing the law. It is essential that all the elements of society: all the Public servants,- in the legislature, judiciary and the executive;- and the Citizens- the masters of the democracy,- follow all laws. The essence of democracy is that each individual Citizen is a sovereign in her own right, and she gives part of the sovereignty to the State, in return for which she gets the rule of law. Thus it is a negotiation of each individual sovereign with the State for the common rule of law.

Right to Information-path to Swaraj

The Right to Information (RTI) is a fundamental right of Citizens and a formal National law codifying this right has been effective throughout India from Vijayadashmi , 12 October 2005. It is extremely simple to use and empowers all Indian Citizens to monitor their Government and improve its governance. We have a democracy with a reasonably fair system of elections, a good constitution and yet realize that it has not delivered satisfactorily to its masters-the Citizens. We have blamed our politicians, bureaucrats, economics, policies and so on. This has happened because we have missed the essence of democracy. The real essence of democracy is the fundamental belief that the individual Citizen is a sovereign in her own right, and she gives up part of the sovereignty to the State, in return for which she gets the rule of law. The individual sovereign Citizen has become the ‘bechara’ who feels completely helpless. Our democracy has been an elective democracy, where the Citizen excercises his choice once in five years, and is then left powerless. Right to Information (RTI) gives him an easy and simple method to monitor his Government. It equips him with information with which he can expose and shame a corrupt system to correct itself. This can lead to a true participatory Government- the Swaraj that we desire and deserve.
A simple query without any forms and an application fee of 10 rupees gives the individual Citizen the Right to Information from all ‘Public authorities’. Every office of our Government is mandated by law to have a Public Information Officer (PIO), who must provide the information requisitioned by a Citizen within 30 days. Failure to provide information without reasonable cause, can lead to an imposition of a penalty of 250 rupees per day on the PIO personally. There are only ten categories of information which can be denied. The information is provided at a fee of 2 rupees per page. The biggest gain is that it needs no followup or personal interaction with the PIO. I have never gone to meet a PIO or even telephoned anybody to get information when using RTI. The Citizen uses the process of RTI and can often get the information at a total cost of about 50 to 70 rupees.
In this blog, a lot of my posts are likely to be about Right to Information. All that I write in this blog or elsewhere is in Public domain, and everyone is encouraged to reproduce whatever they wish, without any permissions from me. A reader might benefit by getting some basic information about RTI from www.satyamevajayate.info
shailesh gandhi
Mera Bharat Mahaan…
Nahi Hai,
Per Yeh Dosh Mera Hai.

'Public Authority' in RTI

PUBLIC AUTHORITY under RTI
Whereas there is a clear understanding that all Citizens can avail of the Right to Information, there is some lack of clarity about which institutions have been mandated to give information by the Right to Information Act. Most of this arises because of the arrogance of many who think they cannot be answerable to the Common Citizen of India. They forget that the Citizen is the sovereign of this democracy. The RTI act lays down that all ‘public authorities’ have to provide information to the Citizen. Public authority has been defined by Section 2 (h) of the act as follows:
“h) public authority means any authority or body or institution of self government established or constituted,—
(a) by or under the Constitution ;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government,
and includes any--
(i) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed,
directly or indirectly by funds provided by the appropriate Government;”
Effectively a) , b) and c) and d) mean any authority or body which we consider as Government in common parlance- all Ministries and their departments, Municipal Bodies, Panchayats, and so on. This also includes Courts, Universities, UPSC, Public Sector Undertakings like Nationalised Banks, LIC, and UTI amongst others. All Stock Exchanges and SEBI are Public authorities and subject to RTI. The issue of coverage of Stock exchanges has been settled in a well reasoned order by a full bench decision of the Central Commission in appeal 2006/00684 & CIC/AT/A/2007/00106.
It is worth remembering that establishments of the Parliament, Legislatures, Judiciary, President and the Governors have also been brought under the surveillance of the Common Citizen. It is unfortunate that some ‘Constitutional functionaries’ and other bodies have been displaying their arrogance and ignorance by claiming that they are above the law.
Subclause d (i), and (ii) together mean any non-government organisations which are substantially owned, controlled or financed directly or indirectly by the Government would be covered. Thus aided schools and colleges are Public Authorities, as also any trusts or NGOs which have significant Government nominees; or Companies where the Government either owns substantial stake, or has given substantial finance, are directly covered under the RTI Act. Substantial finance must take into account tax-incentives, subsidies and other concessions as well.
There is some confusion about the words substantial finance. This confusion also prevails in some of the decisions of the Information Commissions as well. Let us again look at the relevant words carefully:
2 “h) public authority means any authority or body….
(d)…..and includes any--
(j) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed,
directly or indirectly by funds provided by the appropriate Government;”
The finance could be either as investment or towards the expenses, or both. The way in which the words have been placed, indicates that perhaps (i) relates to investments and (ii) relates to the running expenses.
Thus every institution which is owned by the Government is clearly covered. By any norms, whenever over 50% of the investment in a body belongs with any entity, it is said to be owned by that entity. Since bodies owned by Government have been mentioned separately, the words ‘controlled’ and ‘substantially financed’ will have to be assigned some meaning not covered by ownership. Thus it is evident that the intention of the Parliament is to extend the scope of the right to other organisations, which are not owned by it. No words in an Act can be considered to be superfluous, unless the contradiction is so much as to render a significant part meaningless or they violate the preamble. Therefore it becomes necessary to consider a situation where an entity may be controlled by Government without ownership or substantial finance. Such a situation exists when a Charity Commissioner or Registrar of Societies appoints an administrator to run the affairs of a Trust or Society, or a Court Liquidator takes over administration of some body. The interpretation given by some that ‘control’ means any kind of control like that excercised by the Registrar of Societies over Cooperative societies , or by RBI on all private banks is too wide, and certainly not supported by the law. If we take this very wide interpretation, all Companies are controlled by the Registrar of Companies, all Sales tax dealers by the Sales tax authorities, and all factories by the Inspector of factories and so on. By this logic, all Companies, sales tax dealers and factories amongst others will have to give information under the RTI Act. Such a wide interpretation is clearly not intended in the law.
Let us now consider what are the implications of the words ‘substantially financed.’ It is obvious that as per Section 2 (h) (i) ‘ body …substantially financed’ would be a body where the ownership may not lie with the Government, nor the control. Hence clearly the wording ‘substantially financed’ would have to be given meaning at less than 50% holding. The Company Law gives significant rights to those who own 26% of the shares in a Company. Perhaps this could be taken to define the criterion of ‘substantial finance’. The finance could be as equity, or subsidies in land or concessions in taxation.
Similarly some definition is required where the State provides money for the running expenses of an Institution as covered under (ii). Presently, aided schools and colleges have all clearly been accepted as ‘Public authorities’ though there appears to be no clarity in the matter of NGOs and other organisations which are receiving significant amounts of finance.
The key approach and philosophy of the RTI act appears to be that since the State acts on behalf of the Citizens, wherever the State gives money, the Citizen has a right to know. In my opinion if the money given for the running expenses is over 1 crore the body should be considered as receiving ‘substantial finance’ and is covered in the definition of a ‘Public authority’.
At times it has been argued that to be a Public authority, a body must meet the criterion of being a ‘State’ against which a writ is maintainable. If the intention of the Parliament was to restrict the right to bodies which are the ‘State’, it would have said so, since the concept is well established. The term ‘Public Authority’ is broader and more generic than the word ‘State’ under Article 12 of the Constitution. Hence the intention of the Parliament was clearly based on giving the Citizens,- its masters,- the right to information over all entities owned by them, as well as where their money is being invested or spent.