Former CIC Shailesh Gandhi specified important orders that applicants can quote in certain situations and also provided several constructive suggestions on filing appeals, in an extremely engaging session at Moneylife Foundation for advanced users of the RTI Act
The second session for the advanced users of the Right to Information (RTI) Act began with Shailesh Gandhi, former Central Information Commissioner who holds the highest record for disposing cases involving Right to Information, by providing a brief background on the evolution of the RTI. He said, “Freedom of expression without the Right to Information is meaningless”, citing the importance of information in a diverse democratic country like India. He said that information must exist if one has to file an RTI, without which no information will be given. Information usually exists in public domain and in public records.
The session empowered users to use the inspection provision effectively during the appeal process, as the opportunities of getting information is better. Speaking at Moneylife Foundation’s fourth Right to Information Act, 2005 (RTI) workshop for regular users of the RTI.
Mr Gandhi explained common apprehensions of the provisions under the RTI act prevalent among participants as well as information officers and offered interesting viewpoints and suggestions as well as opinions and clues on how to pursue the case in the appeal process and minimize delays in obtaining relevant information.
The former CIC emphasized that in order to realize the potential of being citizens of the world’s largest democracy; the citizens have to effectively play the role of a monitor to apprehend the concept of a participatory democracy. He constantly stressed that activists must engage with the media at regular intervals as the Right to Information movement is a collective effort of individuals which enables activists to put across the message to the masses.
Mr Gandhi reiterated that activists must keep their language civil, avoid rambling applications and not take an adversarial attitude towards public information commissioners (PIOs) or at the appellate hearings. The session was replete with plenty of interesting anecdotes and examples from his vast experience as the Central Information Commissioner and as an activist. He also urged participants to use previous specific orders of the Central Information Commission (CIC) as potential reference points to enable activists argue their case effectively.
Responding to how an RTI query can be refused, Mr Gandhi patiently explained the lead provisions of the RTI are contained in the Section 8 (1) (j) by providing anecdotes and instances of how PIOs refuse RTI queries. The most common excuse being that the information falls under a fiduciary capacity.
On being asked the process on the way ahead if RTI application is refused, Mr Gandhi pointed out that “information which would impede the process of investigation or apprehension or prosecution of offenders” can be refused. The keyword here is ‘impede’ and most PIOs misuse this word. If an RTI query is turned down based on this ground, the PIO must give the reason how and why it impedes an investigation.
Mr Gandhi mentioned that we must obey the due process of law and respect the verdicts and information has to be recorded judiciously in order to fight our case effectively. Towards the end of the session, he talked about how India can become an example for inclusive and participatory democracy by filing regular RTI appeals. He said that unless we as Indian citizens protest against the dilution of the RTI Act and use RTI effectively as a consumer empowerment tool it lies in danger of becoming redundant or even irrelevant.
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All deemed universities, including NMIMS, are public authorities as defined under as per Section 2 (h)(d) of the RTI Act. This is the 12th in a series of important judgements given by Shailesh Gandhi, former CIC that can be used or quoted in an RTI application
As per Section 2 (h)(d) of the Right to Information (RTI) Act, 2005, all deemed universities are public authorities. This provision is rarely invoked to declare bodies as public authorities. While giving this important judgement, Shailesh Gandhi, former Central Information Commissioner said “...a deemed university gets this status by virtue of a notification issued by the Central government. Since NMIMS University is also a deemed University by virtue of a notification by the Central Government, it is a public authority and must furnish information as mandated by the RTI Act”.
“NMIMS has been conferred the status of a deemed university by virtue of notification no. F.9-37/2001-U-3 dated 13 January 2003 of the Government of India. It clearly meets the criterion of Section 2 (d) of the Act since it gets its status as “deemed university” by virtue of a notification by the Central Government. All deemed universities are public authorities as defined under the RTI Act,” the Central Information Commission (CIC) said in its order dated 27 July 2009.
Mumbai resident Mahavir Chopda, on 25 February 2008, sought information from NMIMS University regarding cancellation of registrations by students during 2005 to 2008 and refund by the university. His queries were...
For each of the academic years 2005-06, 2006-07 and 2007-08, please furnish the following information precisely and concisely:-
(1) In how many instances did students cancel admission after paying fees for admission to your FT-MBA Course?
(2) What amount of fees was retained by NMIMS (i.e. collected by NOT refunded to students) due to the above cancellations?
(3) Among the above students, how many students cancelled admission before commencement of the course? How much fees was retained by NMIMS due to these cancellations in particular?
(4) What was the last date when a student was admitted to your FT-MBA Course?
While the public information officer (PIO) refused to give information, the First Appellate Authority (FAA) did not reply. Due to this, Mr Chopda then approached the Commission.
During the first hearing on 5 January 2009, one Shekhar Gupta filed a Vakalatnama on behalf of NMIMS University. He sought adjournment saying that he know nothing about what he is supposed to represent. Mr Gandhi, noted, “...The Commission is not amused at this move to delay the process but is making an exception and listing it on 14th January”.
During the hearing, Mr Gupta, representing NMIMS University, gave a written submission to argue that the institution is not a public authority. The Commission asked him whether the university is substantially financed by the government, whether it has received land at concessional rates or any other subsidies and if donations received by the university are exempt from payment of Income Tax. The CIC asked the university to file an affidavit before 7 February 2009.
An affidavit was filed by Madhav N Welling, pro-vice chancellor of NMIMS University, dated 3 February 2009 stating that the deemed university has not obtained any land at concessional rates nor are the donations received exempt from payment of Income tax.
On 24 February 2009, the Commission wrote a letter to NMIMS University stating it wishes to draw attention to following points:-
“Section 2(h) of the RTI Act defines public Authority in the following words:
‘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 ad includes any- ………………by the appropriate Government.”
Therefore, any authority or body established or constituted by notification issued by the appropriate government is a “public authority” under the RTI Act.
Section 3 of the University Grants Commission Act, 1956, provides for the constitution of Deemed Universities. Section 3 reads as follows:-
“The Central Government may, on the advice of the Commission, declare by notification in the Official Gazette, that any institution for higher education, other than a University, shall be deemed to be a university for the purpose of this Act, and on such a declaration being made, all the provisions of this Act shall apply to such institution as if it were a university within the meaning of clause (f) of Section 2.”
It appears from Section 3 that deemed universities are declared to be so by notification in the official Gazette by the Central Government. Of this is the case, then a deemed university may come within the definition of “Public Authority”.
During the hearing on 27 March 2009, Mr Gupta, appearing on behalf of NMIMS University agreed that the university was conferred the status of deemed university by a notification issued by the Central Government. He also raised two points quoting an order of Rajasthan Information Commission in appeal no 159/08 of 16 April 2008 and also a stay order issued by the Delhi High Court on 14 November 2008 in WP (C) No. 8035/2008. The Commission then reserved its order to consider points raised by the University.
The Commission on 31 March 2009 considered the stay order mentioned by NMIMS University. It said the facts of this case are different that the one mentioned in the high court stay order. The Rajasthan Information Commission in a particular case stated that “The Jain Vishwa Bharti is not an authority or body or institution of self government established and constituted (a) by or under the constitution. Jain Vishwa Bharti, on the other hand, is a society registered under Societies Registration Act and notified as a deemed university under Section 3 of University of University Grants Commission (UGC) Act, 1956.”
Section 2 (d) states “Public Authority means any authority or body or institution of self government established or constituted:
d) by notification issued or order made by the appropriate government,”
According to Section 3 of the UGC Act, 1956...
“Application of Act to institutions for higher studies other than Universities. The Central Government may, on the advice of the Commission, declare, by notification in the Official Gazette, that any institution for higher education, other than a university, shall be deemed to be a university for the purposes of this Act, and on such a declaration being made, all the provisions of this Act shall apply to such institution as if it were a University within the meaning of clause (f) of section 2.”
and Section 2 clause (f) states...
“’University’ means a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the university concerned, be recognized by the Commission in accordance with the regulations made in this behalf under this Act.”
The Commission said, NMIMS clearly meets the criterion of Section 2(d) of the Act, since it got its status as a “deemed university” by virtue of a notification by the Central Government and must furnish information as mandated by the RTI Act.
Allowing the appeal of Mr Chopda, the Commission asked Mr Welling, the pro-vice chancellor of NMIMS University to provide the information free of cost before 20 April 2009 and also send a copy of the information to the Commission.
CENTRAL INFORMATION COMMISSION
Decision No. CIC /OK/A/2008/01098/SG/2550
Appeal No. CIC/OK/A/2008/01098/
Appellant : Mahavir Chopda
Respondent : Public Information Officer
V.L Mehta Road, Vile Parle (w)
Mumbai - 400056
Attaching numbers to people, digitizing their data, and storing these in databases is the modern IT way of branding people, so that those who ‘misbehave’ could be tracked and tackled. This is the first part of a nine-part series on the unique identification number scheme and its possible misuse by politicians, bureaucrats and foreign contractors
Intolerance of criticism or politicians’ fear of loss of office results in their need to control people. They imagine, with some justification, that IT would enable them to do so. With advances in technologies, such as biometrics, they like to, and are led to believe that it is possible to control people using these technology tools. Thus, a popular misconception is that fingerprints and other biometrics would uniquely identify a person. This is far from true.
“The Economist” of 1 October 2010, said, "THANKS to gangster movies, cop shows and spy thrillers, people have come to think of fingerprints and other biometric means of identifying evildoers as being completely foolproof. In reality, they are not and never have been, and few engineers who design such screening tools have ever claimed them to be so. Yet the myth has persisted among the public at large and officialdom in particular. In the process, it has led— especially since the terrorist attacks of 11 September 2001—to a great deal of public money being squandered and worse, to the fostering of a sense of security that is largely misplaced.”
It is difficult to manipulate people. Numbers are easily manipulated. IT facilitates number crunching. Hence, the logic of systems intended to manipulate people, so that they adhere to certain behaviours acceptable to rulers (politicians, bureaucrats and some business persons), is to attach numbers to people. In the ancient world, the Romans and others branded slaves. Attaching numbers to people, digitizing their data, and storing these in databases is the modern IT way of branding people, so that those who ‘misbehave’ could be tracked and tackled.
Such attempts are packaged as meant for other purposes. For example, Bush in the US passed the “Real ID Act, 2005” to incorporate biometrics in driving licenses. Blair, in UK, brought the “National ID Card Act” also in 2005. These were promoted as ways to control illegal immigration. Bush’s Act has been given a quiet burial and Blair’s scrapped.
In scrapping the Blair Act, home secretary, Theresa May, called it, “The worst of government, intrusive bullying, and an assault on personal liberties.” She added, “We propose to do government business as servants of the people, not their masters”.
Our politicians seem to think that they are rulers. They have come out with the Indian version of their people-manipulation tool. It is called ‘UID’, Unique Identification. Shedding crocodile tears, they say that it is for giving an ID to those who do not have an ID. The deceit is immediately exposed, in the UID enrolment form itself.
The Form accepts 14 other identities, like ration cards, driving licenses, PAN cards, etc. Is it not silly that no one calls this bluff? The Unique Identification Authority of India (UIDAI) claims that the ID it provides is, “a unique identification number that can be verified and authenticated in an online, cost-effective manner, which is robust enough to eliminate duplicate and fake identities.”
Giving IDs or taking them?
The UIDAI is not providing anyone, let alone those who do not have it, an identity, but it is giving each one of us a “UNIQUE IDENTIFICATION NUMBER”. Instead of giving us IDs, it is taking our existing Ids—passports, driving licenses, PAN cards, ration cards, etc—linking these to a number and giving each of us a NUMBER. We, the people, cannot identify ourselves or prove our ID to anyone. To prove one’s ID, the database has to be queried. The database is controlled by the UIDAI and its foreign contractors carry out the authentication of the ID. Hence, UIDAI and its foreign contractors control our ID.
This is why Prof Ian Angell, head of Informatics at the London School of Economics, called such central databases under government control, “The Ultimate Identity Theft”, in an article to “Times Online”. So, everyone is numbered, like the branding of Roman slaves. This subterfuge is lost on almost all people. Most people labour under the misconception that they would have a “portable ID”, which they could use to prove who they are - a convenient personal asset.
Every ID we have, be it a driving license, PAN card or passport are all ‘Portable’. Anywhere in India, these are accepted as proof of our ID. Our passports are accepted across the world. UIDAI's claim that ration cards are portable IDs and that those holding these UID number-linked ration cards could draw their rations anywhere is a lie. Even cash transfers, instead of rations, would not be possible when the ration card holder moves from one ration shop and state to which he/she is attached to another location.
To repeat what was said above, for clarity and emphasis; people are not given an ID, but a number. The number is in a database. To establish one’s ID, the database has to be queried. Who controls the database? Obviously, it is not you. It is the government, meaning some politician, bureaucrat or company official who manages the database. In this case, the ultimate control rests with the foreign private company contractor of UIDAI who provides the biometric technology and authenticates IDs using it.
A brand name for branding people
The second deceit in the UID scheme is its promotion as a tool that would prevent welfare subsidy leakages, enable access to government services and make service delivery efficient. To promote this falsehood, UIDAI has given the UID scheme a brand name, ‘Aadhaar’. The brand name is deliberately not used even once in this article. Would it not be stupid of people to promote the brand name of an evil scheme intended to manipulate them? It is mentioned here to bring out the extent of deception being perpetrated on innocent people. Again, most people are taken in by such gimmicks.
The database of all people, residing in India, with a unique number allocated to each person, is to be linked to their bank accounts, tax numbers, LPG consumer numbers, ration cards, insurance, health records, pension records and so forth. This is database state control at its worst. It reminds one of the ID cards for Indian indentured labour in apartheid South Africa and the list of Jews in Hitler’s Germany.
The deceitful way in which the UID is promoted is diabolical. UIDAI claims that it is voluntary. Simultaneously, the UIDAI says, “Service-providers could ask for it”. Next, news is put out regularly in media, stating that the UID is being ‘linked’ to LPG, MGNREGS, KYC of banks, and so on. The gullible and the timid, not wanting to be left out of government's largesse rush to enrol in UID.
Finding allies for tall claims
Tall claims of huge savings in subsidy leakages are made through the media. Initially, the UIDAI made these claims. Now it has allies doing it for the Authority. NIPFP in a recent “research study” claimed savings of Rs1.10 lakh crore in subsidy leakages by 2018. A safe bet indeed. Who would remember this, six years from now? It is astounding how a hitherto reputed organisation has fallen for this ploy and sought to justify it with some arithmetic. The so called research is based on government data and the UIDAI's claims.
The NIPFP research avoids mentioning how the UID would be applied in the field to any of these schemes. News had been leaked that "proof of concept" (PoC) studies for LPG and BPL rations were being done. On the LPG PoC, RTI queries receive responses stating that the studies are incomplete, but some news reports hint that the studies are successful. The UID is perhaps, the only project in the world in which PoC studies are undertaken well after the project is underway.
While the UIDAI claims to be transparent and media extols the virtue, RTI replies prove attempts to hide information. To illustrate, in Appendix 1 to this Monograph, are RTI applications seeking copies of UIDAI's contracts with foreign companies and their replies. The UIDAI has refused to provide copies of the contracts. In a first reply, the UIDAI said that it has signed “Non-disclosure agreements” with the contractors. In another reply, the UIDAI cited Section 8(1)(d) of the RTI Act, which says that information such as trade secrets, or intellectual property, which would compromise the competitive position of third parties need not be disclosed, unless it is in public interest to do so.
It was pointed out that since the contracts have already been awarded and the competitive position of the contractor companies would not be compromised. Further, the proviso to the exception under Section 8(1)(d) of the RTI Act, states that information that cannot be denied to Parliament or a state legislature cannot be denied to the public.
In spite of quoting the above proviso in the appeal against refusal, the UIDAI appellate authority has upheld the PIO’s refusal to furnish the information. The RTI applicant has appealed to the CIC. The First appeal also stated that since the expenditure for the contract payments are from the public exchequer, the public is entitled to know the terms of the contract. This too did not impress the UIDAI’s appellate authority.
What has the UIDAI got to hide in these contracts? Everything. These contracts would reveal all. This leads to the question posed on the front cover. Very, very few people know or realize that to be identified as an Indian, a foreign, private company would have to verify and certify that the biometric images stored in their database matches that of the person being identified. Could anything be more insulting to us? The danger to our nation’s security posed by such database control in the hands of foreign private companies is the subject of another article in the monograph.
(Col (Retd.) Mathew Thomas is a former defence services officer and missile scientist turned civic activist, campaigning against state database control of the people.)