RTI Judgement Series
RTI Judgement Series: Disclose documents related with declaration of Emergency

The institutions of democracy had not become robust enough to withstand an assault and it is imperative for citizens to know the reasons why and how democracy in India was nearly lost, the CIC said. This is the 115th in a series of important judgements given by former Central Information Commissioner Shailesh Gandhi that can be used or quoted in an RTI application

The Central Information Commission (CIC), while allowing an appeal, directed the Public Information Officer (PIO) and under-secretary at the President's Secretariat to provide the complete information on declaration of internal emergency by the then president Fakhruddin Ali Ahmed.

 

While giving this judgement on 15 June 2011, Shailesh Gandhi, the then Central Information Commissioner, said, “The public interest in disclosing the materials/documents on the basis of which Emergency was declared is immense and the citizens of India have a right to know the same. India needs to learn its lessons well, and without this information, citizens will not be able to derive the correct inferences of a watershed event in its journey of democracy.”

 

Delhi resident and right to information (RTI) activist Subhash Chandra Agrawal, on 9 August 2010, sought information about the assets and wealth of Pratibha Patil, the then president of India and her family, as well as details information about declaration of Emergency by the then president Fakhruddin Ali Ahmed from the Public Information Officer (PIO). Here is the information he sought under the RTI Act and the reply provided by the PIO...

 

1. Complete and detailed information about assets and wealth of Hon'ble President of India and her family members.    

PIO's reply: Such information is not maintained by this office.

 

2. Steps taken to put on website of the President of India complete and detailed information about assets and wealth of President of India (Vice President of India  Mohammed Hamid Ansari reportedly expressed desire to make such information about assets and wealth public by putting on relevant website).      

PIO's reply: Does not arise, in view of reply (1) above.

 

3. Complete and detailed information on all documents/records/deliberations/documents/correspondence/file-notings, etc on the declaration of internal emergency in the country by the then president Hon'ble Fakhruddin Ali Ahmed including any communication/advice received from the then Prime Minister Ms Indira Gandhi. 

PIO's reply: The information sought is covered under Article 74 of the Constitution and hence, cannot be disclosed.

 

4. Any other related information. 

PIO's reply: No.

 

5. File notings on movement of this RTI petition.   

PIO's reply: NIL

 

The RTI activist then filed his first appeal, in which he stated, “The CPIO declined to provide information on query (3) on the basis that it was covered under Article 74 of the Constitution of India and hence could not be disclosed. However, the RTI Act has an overriding effect on all previous provisions, and as such it was not justified to refuse any information covered under Section 8 of the RTI Act.”

 

The First Appellate Authority (FAA), however, disposed the appeal stating that the reply given by the PIO was in order. The FAA in his order said,”…In his appeal, the appellant has stated that if the information on point 1 & 2 are not maintained in the President's Secretariat, the same may be transferred to the public authority holding the information. In this regard it is stated that the President of India is not required to declare his/her assets and wealth to this Secretariat, or to any other public authority. Hence the reply given by the CPIO is in order. As far as the family of the president is concerned, they are private individuals and information about their assets and wealth is also not required to be declared to this Secretariat. Hence reply given by the CPIO is in order and no further action is required to be taken.

 

Since the correspondence between the president and the prime minister regarding declaration of Emergency is covered under Article 74 of the Constitution of India, the reply given by the CPIO is in order”

 

Not satisfied with the reply Agrawal then approached the CIC with his second appeal. In the appeal, he stated, “No basis in law for the denial of information. It was prayed that the respondent—public authority—may be directed to provide complete and detailed information on all documents/records/deliberations/documents/ correspondence/file notings on declaration of internal emergency in the country by the then president Fakhruddin Ali Ahmed including any communication/advice received from the then prime minister, Indira Gandhi, and also file- notings on movement of the RTI petition.”

 

During the hearing on 12 May 2011, Agrawal on query 1 and 2, argued before the Commission that though there may not be any legal obligation on the president to declare her assets and those of her family members, judges at the Supreme Court, Information Commissioners and Election Commissioners had declared their assets voluntarily and put them up on websites. Similarly, the Prime Minister's Office had decided to declare the assets of all the ministers on its website. In view of this, the president may set a good example in transparency which others could follow, he said.

 

However, Mr Gandhi, the then CIC, said “The Commission cannot pass any direction in this regard, as it does not come within the Commission's powers as mandated under the RTI Act. Now that various functionaries like ministers, judges and Information Commissioners have voluntarily put up details of their assets on websites, it is for the president to take a decision on this matter. The PIO's reply was therefore correct.”

 

Information on query 3 of the RTI application was denied on the basis that it was protected under Article 74 of the Constitution of India. The PIO also stated that the issue whether exchanges between the president of India and the prime minister of India can be revealed under the RTI Act was the subject matter of a petition before the Delhi High Court.

 

However, since the PIO did not produce or submit any documents/records in support of this contention before the CIC, Mr Gandhi said it was not possible for the Commission to take cognizance of this. The Commission then reserved its order. 

 

During the hearing on 15 June 2011, the Commission reiterated that Section 22 of the RTI Act gives supremacy to the RTI Act and stipulates that the provisions of the RTI Act shall override, notwithstanding anything to the contrary contained in the Official Secrets Act, 1923, or any other enactment for the time being in force.

 

“Once an applicant seeks information, as defined in Section 2(f) of the RTI Act from a ‘public authority’, information can only be denied on the grounds mentioned in Sections 8 or 9 of the RTI Act. The Public Information Officer, Appellate Authority or the Information Commission cannot add or introduce any other reasons or grounds for rejecting the disclosure of information,” Mr Gandhi stated.

 

He said, “There is however one exception, to the aforesaid principle. Disclosure of information which is prohibited under the Constitution of India cannot be furnished under the RTI Act.”

 

In the instant case, the information sought under query 3 was denied by the PIO on the basis that it was protected under Article 74 of the Constitution of India.

 

Article 74 of the Constitution of India provides as follows:

 

“(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.

 

Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.

 

(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.” (Emphasis added)

 

For determining whether the information sought by the appellant at query 3 is barred from disclosure under Article 74 of the Constitution of India, Mr Gandhi said, the Commission would seek guidance from the pronouncements of the Supreme Court of India.

 

The Supreme Court of India in a nine-judge bench decision in SR Bommai & Ors Vs Union of India & Ors (AIR 1994 SC 1918) discussed the meaning and scope of Article 74 of the Constitution of India. Specifically, as regards Article 74(2) of the Constitution of India, the Supreme Court of India observed as follows:

 

“… Then comes Clause (2) of Article 74 which says that the question ‘whether any, and if so, what advice was tendered by the Ministers to the President shall not be enquired into in any Court.’ The idea behind Clause (2) is this: the Court is not to enquire—it is not concerned with—whether any advice was tendered by any Minister or Council of Ministers to the President, and if so, what was that advice. That is a matter between the President and his Council of Ministers. What advice was tendered, whether it was required to be reconsidered, what advice was tendered after reconsideration, if any, what was the opinion of the President, whether the advice was changed pursuant to further discussion, if any, and how the ultimate decision was arrived at, are all matters between the President and his Council of Ministers. They are beyond the ken of the Court. The Court is not to go into it. It is enough that there is an order/act of the President in appropriate form. It will take it as the order/act of the President. It is concerned only with the validity of the order and legality of the proceeding or action taken by the President in exercise of his functions and not with what happened in the inner Councils of the President and his Ministers. No one can challenge such decision or action on the ground that it is not in accordance with the advice tendered by the Ministers or that it is based on no advice. If, in a given case, the President acts without, or contrary to, the advice tendered to him, it may be a case warranting his impeachment, but so far as the Court is concerned, it is the act of the President…” (Emphasis added)

 

In the same case, it was argued before the Supreme Court inter alia that the advice tendered to the President comprised of material as well, and therefore, calling upon the Union of India to disclose the material would amount to compelling the disclosure of the advice. The Supreme Court ruled that that this obligation could not be evaded by seeking refuge under Article 74(2) of the Constitution of India. More specifically, the Supreme Court observed as follows:

 

“…The argument that the advice tendered to the President comprised of material as well, and therefore, calling upon the Union of India to disclose the material would amount to compelling the disclosure of the advice is, if we can say so respectfully, to indulge in sophistry. The material placed before the President by the Minister/Council of Ministers does not thereby become part of advice. Advice is what is based upon the said material. Material is not advice. The material may be placed before the President to acquaint him - and if need be to satisfy him - that the advice being tendered to him is the proper one. But it cannot mean that such material, by dint of being placed before the President in support of the advice, becomes advice itself. One can understand if the advice is tendered in writing in such a case that writing is the advice and is covered by the protection provided by Article 74(2). But it is difficult to appreciate how does the supporting material becomes part of advice. The respondents cannot say that whatever the President sees - or whatever is placed before the President becomes prohibited material and cannot be seen or summoned by the court. Article 74(2) must be interpreted and understood in the context of entire constitutional system. Undue emphasis and expansion of its parameters would engulf valuable constitutional guarantees…” (Emphasis added)

 

The Supreme Court, while interpreting the scope of Article 74(2) of the Constitution of India, clearly laid down in SR Bommai that Article 74(2) of the Constitution of India merely barred an enquiry into the question whether any, and if so, what advice was tendered by the council of ministers to the president. It did not bar the court from calling upon the council of ministers to disclose to the court the material upon which the President had formed the requisite satisfaction. The material on the basis of which advice was tendered did not become a part of the advice. Even if the material was looked into by, or shown, to the president, it did not partake the character of advice.

 

Mr Gandhi said, “Given that the advice tendered by the council of ministers to the president enjoys the Constitutional protection of Article 74(2) and cannot be disclosed to the courts, a citizen under the RTI Act cannot seek information pertaining to such advice. However, the Supreme Court has held that the materials on the basis of which such advice is tendered by the council of ministers or on the basis of which the president forms the requisite satisfaction is not covered by Article 74(2) of the Constitution of India. Since Article 74(2) does not cover such material, it can be accessed under the RTI Act, subject only to the exemptions under the RTI Act.”

 

In the instant case, complete and detailed information on all documents/ records/ deliberations/ correspondence/ file notings on declaration of internal emergency in the country by Fakhruddin Ali Ahmed, the then president is not barred from disclosure under Article 74 of the Constitution of India; only the advice received by the then president from the then prime minister is protected from disclosure under Article 74(2) of the Constitution of India (in line with the ruling in SR Bommai) and therefore cannot be provided to the appellant under the RTI Act, the CIC said.

 

“In other words,” Mr Gandhi said, “...complete and detailed information on all documents/records/deliberations/correspondence/file notings, etc on declaration of internal emergency in the country by Fakhruddin Ali Ahmed, the then president including communication received from Indira Gandhi, the then prime minister, but excluding the advice received from Indira Gandhi, the then prime minister, can be provided, subject to the provisions of the RTI Act.”

 

The RTI Act, which codifies the citizens’ fundamental right to information, has prescribed certain exemptions from disclosure of information in Section 8(1) of the RTI Act. It is clear that the underlying principle which prompted the Parliament to define the 10 exemptions in Section 8(1) of the RTI Act were to safeguard larger public interest as well as certain other interests. However, the parliament also perceived that the potential to harm such interests would be negligible after twenty years and therefore it stated that only three exemption clauses would apply after the lapse of twenty years. This has been clearly laid down in Section 8(3) of the RTI Act, which stipulates as follows:

 

“(3) Subject to the provisions of clauses (a), (c) and (i) of sub-section (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under Section 6 shall be provided to any person making a request under that section:”

 

The CIC said, in the instant case, “…the information sought pertains to events that occurred over 30 years ago. Hence, only the exemptions contained in Sections 8 (1)(a), (c) and (i) of the RTI Act would apply. However, the PIO has not claimed any of the said exemptions while denying the information under the RTI Act. However, even if it was to be argued that the information sought was exempted under Sections 8 (1)(a), (c) or (i) of the RTI Act, Section 8(2) of the RTI Act would mandate disclosure of the information.”

 

Section 8(2) of the RTI Act mandates as follows:

 

“Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.”

 

Mr Gandhi noted that the period of Emergency is considered to be the biggest challenge to India’s commitment to democracy. “This period was symbolized by curtailment of fundamental rights of citizens, restrictions on freedom of press, illegal detention and abuse of citizens and enactment of draconian laws. Most institutions of governance when asked to bend, prostrated themselves and crawled. This showed that the institutions of democracy had not become robust enough to withstand an assault. Given the same, it is imperative for citizens to know the reasons why and how democracy in India was nearly lost,” the Commission said.

 

While allowing the appeal, the CIC the directed the PIO to provide the complete and detailed information on all documents/ records/ deliberations/ correspondence/ file notings, etc on declaration of internal emergency in the country by Fakhruddin Ali Ahmed, the then president, including communication received from Indira Gandhi, the then prime minister, except any advice received from Ms Gandhi, the then Prime Minister before 10 July 2011.

 

CENTRAL INFORMATION COMMISSION

                                                                              

Decision No. CIC/SM/A/2011/000287/SG/12889

http://rti.india.gov.in/cic_decisions/CIC_SM_A_2011_000287_SG_12889_M_58598.pdf

Appeal No. CIC/SM/A/2011/000287/SG

 

Appellant                                                     : Subhash Chandra Agrawal,

                                                                          Delhi- 110006

 

Respondent                                                 : CPIO & Under Secretary,

                                                                          President's Secretariat, RTI Section,

                                                                          Rashtrapati Bhavan,

                                                                          New Delhi- 110004

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Indian oil supply issues and powering Pakistan’s industries

The wheels of the nation can move smoothly when power supply is available in plenty and without any interruption

The Rangarajan Committee’s recommendation to fix the price of domestically produced gas at about $8 for Reliance Industries (and obviously, for others) was not welcomed by the company. The public reaction was such a move would have rippling effect on the economy and would increase costs everywhere. Andy, finally, the shocker, if can say a mild one at that, came from Veerappa Moily that the gas price be fixed at $6.77 per mmBtu (million metric British thermal unit).

 

The natural gas requirement in India is 286 mmscmd (million metric standard cubic metres per day) against the estimated (falling) production of 111 mmscmd.  Rest has to be imported unless expeditious actions are taken to increase indigenous production.

 

Although recently Reliance announced a substantial discovery of gas at its D-6 block, it will take around three years or more before this supply can hit the market. No doubt other explorers may strike a bonanza, and continuous efforts are being made to tap coal methane gas also.

 

There has been a public uproar to Moily’s statement that import lobby ‘threatens’ the decision making process at the oil ministries. As is usual, he later claimed that he was ‘misquoted’.

 

This issue of escaping the wrath of the public by ducking behind the ‘misquoted’ or ‘misunderstood’ or even ‘mis-interpreted’ statement would not arise at all, if in future, all the press meetings are ‘officially’ video taped and recorded. Such a move will put an end to any debates as officially recorded ‘evidence’ would be available!

 

The wheels of the nation can move smoothly when power supply is available in plenty and without any interruption. At this stage of domestic shortages, it is foolhardy to think of supplying power to Pakistan, whose industries are in bad shape. While it is sad to see them in this state, we have enough areas in the country that are in total darkness because of lack of power!

 

In any case, even though India extended MFN (Most Favoured Nation) status to Pakistan couple of decades ago, the latter has not reciprocated this facility to us. Why then must we supply power to it?

 

We must remember that it has taken years for the southern states to be in the national power grid and it is still, supposedly one more year or so before they will be connected. Power charity, should begin at home.

 

In the meantime, our approach to the problems faced in the oil industry needs some innovative thinking and expeditious and realistic actions.

 

Take the issue of permitting Cairn India to ‘reclaim’ the surrendered area in Barmer, Rajasthan, where it is already fully entrenched, but cannot be cleared without the Cabinet approval.  This sounds childish, though technically and legally, the government stand to go through the formalities may be right. In such cases, where the applicant has a proven track record and competence, discretion should be used to clear the matter and reinstate the surrendered area to it, so that it can go ahead in full swing. 

 

India needs these natural resources urgently and in plenty. In such cases regulatory approvals required by the oil and gas generators should be handled expeditiously and generously.

 

Meanwhile, even though India, along with eight other nations, has received exemptions from the US to import oil from Iran, it is in our national interest to concentrate on our domestic resources, as these are vital to our very survival. After all, what happens if the situation in Syria precipitates Iranian support and the trouble in Balochistan as a sequel to Musharraf’s arrest leads to trouble there, all of which can create a mess in the Strait of Hormuz, resulting in a shipping blockade?

 

(AK Ramdas has worked with the Engineering Export Promotion Council of the ministry of commerce and was associated with various committees of the Council. His international career took him to places like Beirut, Kuwait and Dubai at a time when these were small trading outposts; and later to the US.)

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Bank of America lied to homeowners and rewarded foreclosures, former employees say

Former employees of Bank of America gave sworn statements that the bank lied to homeowners, denied loan modifications for bogus reasons and rewarded employees for sending homeowners to foreclosure

Bank of America employees regularly lied to homeowners seeking loan modifications, denied their applications for made-up reasons, and were rewarded for sending homeowners to foreclosure, according to sworn statements by former bank employees.
 

The employee statements were filed late last week in federal court in Boston as part of a multi-state class action suit brought on behalf of homeowners who sought to avoid foreclosure through the government’s Home Affordable Modification Program (HAMP) but say they had their cases botched by Bank of America.
 

In a statement, a Bank of America spokesman said that each of the former employees’ statements is “rife with factual inaccuracies” and that the bank will respond more fully in court next month. He said that Bank of America had modified more loans than any other bank and continues to “demonstrate our commitment to assisting customers who are at risk of foreclosure.”
 

Six of the former employees worked for the bank, while one worked for a contractor. They range from former managers to front-line employees, and all dealt with homeowners seeking to avoid foreclosure through the government’s program.
 

When the Obama administration launched HAMP in 2009, Bank of America was by far the largest mortgage servicer in the program. It had twice as many loans eligible as the next largest bank. The former employees say that, in response to this crush of struggling homeowners, the bank often misled them and denied applications for bogus reasons.
 

Sometimes, homeowners were simply denied en masse in a procedure called a “blitz,” said William Wilson, Jr., who worked as an underwriter and manager from 2010 until 2012.
As part of the modification applications, homeowners were required to send in documents with their financial information. About twice a month, Wilson said, the bank ordered that all files with documentation 60 or more days old simply be denied. “During a blitz, a single team would decline between 600 and 1,500 modification files at a time,” he said in the sworn declaration. To justify the denials, employees produced fictitious reasons, for instance saying the homeowner had not sent in the required documents, when in actuality, they had.
 

Such mass denials may have occurred at other mortgage servicers. Chris Wyatt, a former employee of Goldman Sachs subsidiary Litton Loan Servicing, told ProPublica in 2012 that the company periodically conducted “denial sweeps” to reduce the backlog of homeowners. A spokesman for Goldman Sachs said at the time that the company disagreed with Wyatt's account but offered no specifics.
 

Five of the former Bank of America employees stated that they were encouraged to mislead customers. “We were told to lie to customers and claim that Bank of America had not received documents it had requested,” said Simone Gordon, who worked at the bank from 2007 until early 2012 as a senior collector. “We were told that admitting that the Bank received documents ‘would open a can of worms,’” she said, since the bank was required to underwrite applications within 30 days of receiving documents and didn’t have adequate staff. Wilson said each underwriter commonly had 400 outstanding applications awaiting review.
 

Anxious homeowners calling in for an update on their application were frequently told that their applications were “under review” when, in fact, nothing had been done in months, or the application had already been denied, four former employees said.
 

Employees were rewarded for denying applications and referring customers to foreclosure, according to the statements. Gordon said collectors “who placed ten or more accounts into foreclosure in a given month received a $500 bonus.” Other rewards included gift cards to retail stores or restaurants, said Gordon and Theresa Terrelonge, who worked as a collector from 2009 until 2010.|
 

This is certainly not the first time the bank has faced such allegations. In 2010, Arizona and Nevada sued Bank of America for mishandling modification applications. Last year, Bank of America settled a lawsuit brought by a former employee of a bank contractor who accused the bank of mishandling HAMP applications.
 

The bank has also settled two major actions by the federal government related to its foreclosure practices. In early 2012, 49 state attorneys general and the federal government crafted a settlement that, among other things, provided cash payments to Bank of America borrowers who had lost their home to foreclosure. Authorities recently began mailing out those checks of about $1,480 for each homeowner. Earlier this year, federal bank regulators arrived at a settlement that also resulted in payments to affected borrowers, though most received $500 or less.
 

The law suit with the explosive new declarations from former employees is a consolidation of 29 separate suits against the bank from across the country and is seeking class action certification. It covers homeowners who received a trial modification, made all of their required payments, but who did not get a timely answer from the bank on whether they’d receive a permanent modification. Under HAMP, the trial period was supposed to last three months, but frequently dragged on for much longer, particularly during the height of the foreclosure crisis in 2009 and 2010.
 

ProPublica began detailing the failures of HAMP from the start of the program in 2009. HAMP turned out to be a perfect storm created by banks that refused to adequately fund their mortgage servicing operations and lax government oversight.
 

Bank of America was far slower to modify loans than other servicers, as other analyses we've cited have shown. A study last year found that about 800,000 homeowners would have qualified for HAMP if Bank of America and the other largest servicers had done an adequate job of handling homeowner applications.
 

Courtesy: http://www.propublica.org/

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