The picture of a typical Indian government office is quite bleak – thousands of files stacked up everywhere, files moving from one table to next for approval, a clerk taking hours to find one file and if you are unfortunate your file may have gone ‘missing’. But all this can be thing of the past. And the solution is not rocket science. It is very basic computer science!
Until three months back, my office had 9000 files – stacked in various cupboards and shelves. We kept running of cupboards and filing cabinets. Despite having a reasonably efficient staff to locate the files and a well-organised office, on an average it would take five minutes to locate a file. My office receives about 1800 communications a month on an average through post, fax and email. Each of these communications has to be looked into, responded to and then time was spent in putting these pieces of papers and the response, if any, in the correct files. I realized soon that the space available for record keeping as well as efficient record keepers cannot keep up with the escalating numbers of records to be maintained. The Information Commission has decided to digitize all records.
So, my office has adopted a simple yet reliable solution to the problem – we have gone digital! Over the past three months all the 9000 files have been scanned and are now available on the office network for any member of the staff to access. About two weeks back, we stopped receiving paper and started accepting the digital image every day. All new communications come to my office after they have been scanned and it is the soft copy of the communication and the response sent, if any, which is appended with the soft copy of the correct file. For emails, earlier we used to print them and put them in the file. Now we attach the email to the appropriate electronic folder.
A very simple computer program, which is easily duplicable, has been created to manage the work in the office. The program not only makes all files available to every member of the staff at all times, but it also means that any new action taken on the files gets linked to the original file with the click of the mouse. Only letters which have to be sent by the office are printed. Drafts of orders, notices, and other types of communications are reviewed on the computer before printing. I estimate that we would be saving about 20,000 sheets of paper in the next twelve months.
Digital record keeping is definitely the way forward in any office – government or otherwise. The Preamble of the Information Technology Act states that it is an Act to facilitate electronic filing of documents with Government Agencies. Section 4 of the Act provides legal recognition to electronic records; Section 5 provides legal recognition to digital signatures; and Section 7 states that if record is to be retained for a particular period of time it would be deemed to have satisfied that rule if it is available in an electronic format.
While I admit that my office is relatively ‘young’ and most records are less than two years old, I believe that more government offices can move towards making their records electronic. Computer programs can be created and customized to suit the work flow of each office. Not only would record keeping become easier and locating records be a click of a mouse away, incidents of missing records would be minimal. Back-ups of the electronic data can be stored in multiple places, even in a different city, thereby avoiding loss of the records due to fire, floods, etc. If necessary physical records can be kept for a short period of time till it is ascertained that the electronic records are legible and complete.
Any changes made to records could be traced back to the system from which the changes were made. This would promote transparency and accountability in the office and reduce corruption. A lot of corruption takes place by losing records or removing papers or substituting papers. The other way is predating papers. All of this could be caught, once an office goes digital. The computer program can also help to gauge the productivity of the staff as well as it could indicate who is taking how long to complete a particular task. The cost of going digital is a fraction of the cost incurred in record keeping. There would be other small but significant cost savings in the form of less usage of paper, files, printer ink, etc. More importantly, decision making becomes faster as time taken to transfer a file from one table or one office to another for approval/signing would get cut down as everything would be available over the internet or intranet.
My office was able to make the transformation in a very short span of time and with no requirement for any additional budget. Simple changes can make a big difference –all we need to do to make those simple changes is to set our mind to it. If all Government offices go digital, the impact on governance and transparency could be huge. As byproducts we could get a reduction of corruption and paper usage.
shailesh gandhi
June 21, 2010
Monday, June 21, 2010
Friday, October 3, 2008
Michchami Dukdam
2nd October, 2008.
Dear Friends,
I am happy to inform all of you that i have started working as a Central Information Commissioner from 18th September. I was sworn in at 4.00pm on that day and started work in my office at 5.00pm. In the Central Commission certain departments are allocated to each Commissioner and presently the departments allocated to me are all relating to Delhi: Secretariat, Directorate of Education GNCT, Directorate of Health and Family Welfare-GNCTD, District Sessions Judge, DSSSB, Land and Building Department-GNCTD, MCD-GNCTD, and Secretariat of Legislative Assembly. The appeals and complaints pending disposal in these are about 1250 and I have started listing hearings of cases.
I have a staff of two people provided to me and am depending more on the help of volunteers;- which is not really sustainable. Cases have been listed for hearing from 6th October, and i am reiterating my commitment to ensure that there will be no pendency of cases with me of over 3 months by end of March 2009.
There is an admission of a mistake i wish to make. When the names were being proposed from Civil society for the position of Central Information Commissioner, it was suggested that we should offer to do this job without a salary, house, car etc. I had raised the issue about how i could survive, and it was suggested that some individuals or organisations would take care of these. Without much thought i agreed to this. When i was actually selected, i began to think a little carefully about how i would stay in Delhi. I felt that taking help from individuals, organisations or Corporates would not be right. I then started thinking, i would try and stay frugally like Aruna Roy, Nikhil Dey, Jean Dreze, Medha Patkar and other activists whose spartan lifestyle i admire.
I went to Delhi and am presently staying in a Hostel. The actual reality of trying to practise my romanticised frugal living is now staring at me. I went out for dinner with a friend and when i saw the bill of about 700 rupees, i cringed internally. Living alone in a hostel, without my wife Bharti is becoming difficult emotionally. I had planned to give up the car and start using rickshaws and Public transport. However, i am not able to bring myself to do this. I realised i could do my work much better if i paid the volunteers who are working with me in the office;- and i cannot do it. I am beginning to worry that trying to continue to live without salary, house etc. will affect my performance, and could result in failing for all the wrong reasons. Various friends have also advised me to accept the salary, house etc..
I realised that it is my ego which is preventing me from admitting my mistake. I am therefore apologising for the mistake i had made in stating that i would work without salary, house etc., and now plan to take these. I have discussed the matter with Bharti and decided that the salary would be used entirely to facilitate my work and for other RTI related work. I am aware that there will be criticism of my step, but feel it is more honest to admit a mistake.
Some friends will be disappointed by this turnaround. But i need to admit this mistake, and correct it. I shall fulfill the role of Information Commissioner diligently. I once again apologise to friends who might feel a betrayal.
Note: Jains greet each other on their new year day by saying, " Michchami Dukdam"- forgive me;- for any hurt i might have caused you during the past year. Thus only having cleansed myself can i enjoy the new year when you forgive me.
Dear Friends,
I am happy to inform all of you that i have started working as a Central Information Commissioner from 18th September. I was sworn in at 4.00pm on that day and started work in my office at 5.00pm. In the Central Commission certain departments are allocated to each Commissioner and presently the departments allocated to me are all relating to Delhi: Secretariat, Directorate of Education GNCT, Directorate of Health and Family Welfare-GNCTD, District Sessions Judge, DSSSB, Land and Building Department-GNCTD, MCD-GNCTD, and Secretariat of Legislative Assembly. The appeals and complaints pending disposal in these are about 1250 and I have started listing hearings of cases.
I have a staff of two people provided to me and am depending more on the help of volunteers;- which is not really sustainable. Cases have been listed for hearing from 6th October, and i am reiterating my commitment to ensure that there will be no pendency of cases with me of over 3 months by end of March 2009.
There is an admission of a mistake i wish to make. When the names were being proposed from Civil society for the position of Central Information Commissioner, it was suggested that we should offer to do this job without a salary, house, car etc. I had raised the issue about how i could survive, and it was suggested that some individuals or organisations would take care of these. Without much thought i agreed to this. When i was actually selected, i began to think a little carefully about how i would stay in Delhi. I felt that taking help from individuals, organisations or Corporates would not be right. I then started thinking, i would try and stay frugally like Aruna Roy, Nikhil Dey, Jean Dreze, Medha Patkar and other activists whose spartan lifestyle i admire.
I went to Delhi and am presently staying in a Hostel. The actual reality of trying to practise my romanticised frugal living is now staring at me. I went out for dinner with a friend and when i saw the bill of about 700 rupees, i cringed internally. Living alone in a hostel, without my wife Bharti is becoming difficult emotionally. I had planned to give up the car and start using rickshaws and Public transport. However, i am not able to bring myself to do this. I realised i could do my work much better if i paid the volunteers who are working with me in the office;- and i cannot do it. I am beginning to worry that trying to continue to live without salary, house etc. will affect my performance, and could result in failing for all the wrong reasons. Various friends have also advised me to accept the salary, house etc..
I realised that it is my ego which is preventing me from admitting my mistake. I am therefore apologising for the mistake i had made in stating that i would work without salary, house etc., and now plan to take these. I have discussed the matter with Bharti and decided that the salary would be used entirely to facilitate my work and for other RTI related work. I am aware that there will be criticism of my step, but feel it is more honest to admit a mistake.
Some friends will be disappointed by this turnaround. But i need to admit this mistake, and correct it. I shall fulfill the role of Information Commissioner diligently. I once again apologise to friends who might feel a betrayal.
Note: Jains greet each other on their new year day by saying, " Michchami Dukdam"- forgive me;- for any hurt i might have caused you during the past year. Thus only having cleansed myself can i enjoy the new year when you forgive me.
Tuesday, July 15, 2008
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.
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.
Sunday, July 13, 2008
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.
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.
Thursday, July 10, 2008
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:
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.
“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.
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.
Wednesday, July 9, 2008
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.
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.
Subscribe to:
Posts (Atom)
