According to the former secretary to the GoI, the whole gamut of showering one largesse after another on Reliance Industries should be subject to an independent investigation by a special investigation team or SIT
EAS Sarma, former secretary of the Government of India (GoI), has said that the whole gamut of showering one largesse after another on Reliance Industries (RIL) should be subject to an independent investigation and such an investigation will unravel the hidden links in this web of improprieties.
Mr Sarma, in a letter to prime minister Dr Manmohan Singh, said, “If the Central Bureau of Investigation (CBI) secures adequate autonomy, it could be entrusted with the task of investigating these improprieties. However, I do not feel quite hopeful of the government’s intentions against the background of the statements being made by some of your esteemed colleagues. In that case, an investigation by a Special Investigation Team (SIT) should be instituted. I feel that the stakes involved in this matter are far too heavy to be taken lightly.”
In his latest salvo, Mr Sarma, cited a news report that says the petroleum minister is once again trying to bypass the mandatory provisions incorporated in the Production Sharing Contract (PSC) in the name of “national security” and extend additional concessions to RIL.
“This is unacceptable. It will amount to a gross impropriety. In fact, what the petroleum minister is now trying to do is to go against the letter and spirit of Comptroller and Auditor General’s (CAG) report on PSCs and dole out yet another huge largesse to RIL. No wonder that those who had opposed such concessions in the past were forced to give up the ministerial portfolio of petroleum and natural gas,” the former secretary said.
According to Mr Sarma, the Directorate General of Hydrocarbon (DGH) had recommended to the ministry that RIL should be directed to relinquish 86% of the KG-D6 block area as envisaged in the PSC, including that in which discoveries were announced belatedly.
“It is ironic that the ministry should choose to interpret the same PSC to hike up the gas price and quote “national security” and to deviate from the PSC, when it came to relinquishment of the franchised blocks as per the contract. It is nothing but a deliberate ploy to benefit RIL at the expense of the public,” he said.
Mr Sarma said, “The minister’s earlier statement that India was “floating on oil”, apparently on an assurance given by RIL, should remind the government how the earlier assurances by RIL had turned out to be totally misplaced, causing a debilitating damage to the interests of small investors and the interests of the downstream power developers. References by the minister to ‘import’ lobbies are apparently aimed to obfuscate the main issue of granting undue benefits to RIL!”
The former secretary had written several letters to the PM and petroleum ministry on the improprieties committed by the United Progressive Alliance (UPA) government in dealing with RIL’s gas project in Krishna Godavari (KG) Basin in Andhra Pradesh.
Last year in August, Mr Sarma had alleged that there were irregularities committed in the pricing, allocation and the management of the natural gas from KG Basin to the detriment of the public interest at the macro-level and to the detriment of Andhra Pradesh at the state level.
The Krishna-Godavari basin is spread across over 50,000 sq km in the Krishna River and Godavari River basins in Andhra Pradesh. The site is known for the D-6 block where RIL discovered the biggest natural gas reserves in India in 2002. It was also the world’s largest gas discovery of 2002.
In November 2012, the former secretary, in his letters have said, “The exploration and development effort put in by RIL in the KG Basin, the technology adopted, the resources discovered, the costs incurred, the claims made on pricing of gas and the costs to be reimbursed are all matters that impinge directly and indirectly on the public exchequer. All such matters should be subject to public scrutiny and RIL should be held accountable to the public”.
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PAWS treats and rehabilitates injured birds and animals and spreads awareness about their care
Twelve years ago, when an 18-year-old Nilesh Bhanage was flying a kite, he found a pigeon being viciously attacked by crows. He rescued it immediately and took the injured bird home only to find that it was completely blind. He was unsure of how to proceed after that; he did not know who to approach or where to take the poor bird. “My cousin told me about a girl named Anamika who treated animals in her house, so I took the pigeon to her. Her house was so full of birds and animals that I asked her if it was a zoo! She said they were animals she had rescued and treated as there was nowhere else for them to go,” says Nilesh. He worked with her for a few months to learn how to treat injured animals. In 2001, along with a group of friends, he started Plants and Animals Welfare Society (PAWS).
The main objective of PAWS is to help create a world where no living creature is left in distress. So it started the first ambulance service for animals in Thane, a distant Mumbai suburb, when Anil Kataria from the Ahmednagar-SPCA (Society for Prevention of Cruelty to Animals) donated a van in 2001. PAWS now administers free on the spot first-aid, rescues and rehabilitates animals in need and has recently started performing minor veterinarian surgeries at its premises in Murbad (Maharashtra). In memory of the first pigeon Nilesh rescued but could not save, one of the earliest initiatives by PAWS was to build a pigeon shelter in Thane. “Pigeons are social birds; they need to be in large groups to thrive,” he says. Since its inception, PAWS has helped over 13,000 animals and birds. During the monsoons, PAWS organises tree plantation drives and also fights illegal felling of trees.
PAWS has made commendable efforts to spread awareness about the care of animals through camps organised in schools and colleges and through its website which provides simple, easy instructions and tips on animal care. Some of PAWS’ most significant achievements include enforcing the ban on illegal sale of birds like parakeets and mynahs at the Kalyan bird market, and ending snake-charming and parrot astrology in Thane. It also rescues ill-treated tigers and lions from circuses.
What is striking about PAWS is the passion that Nilesh brings into its work and his commitment to reporting its activities and utilisation of funds to donors and patrons. The PAWS website contains extensive, neatly tabulated information on its work species-wise. Donors can specify exactly what use they would like their donation to be put to.
Alternatively, they can choose from a list of medical and other supplies listed on its website. You can also help by purchasing from the small collection of eco-friendly PAWS merchandise including bags, caps and bookmarks that can be bought from its website.
Donors are thanked with photographs of the supplies they have donated and a daily report on PAWS’ activities. PAWS works through a large group of volunteers and interns. They are supported by a core group of salaried employees including a couple of caretakers, security guards and a para-vet. Nilesh says, “When we started PAWS, we used to go out to rescue animals on our bikes at night after our day jobs. Now, we are able to do much more work because of the ambulance and the rescue centre.” The PAWS Rescue Centre currently operates at Murbad, out of the unused premises of People for Animals, set up by animal rights activist Menaka Gandhi and editor Pritish Nandy. PAWS requires steady donations of money, supplies and volunteers to keep up with its growing reach and activities.
PAWS was featured in the Limca Book of Records in 2005 for being India’s youngest animal rehabilitation team. Nilesh Bhanage’s dedication has earned him numerous awards and accolades from Ingrid Newkirk of PETA and other social organisations.
Plants and Animals Welfare Society
A-18, Savitri Sadan,
Dr Mukharji Road, Near
Nehru Ground, Dombivli (East) 421201, Maharashtra.
9820161114 (Domestic Animals)
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
Appeal No. CIC/SM/A/2011/000287/SG
Appellant : Subhash Chandra Agrawal,
Respondent : CPIO & Under Secretary,
President's Secretariat, RTI Section,
New Delhi- 110004