CIC slams DoPT for discrediting itself as RTI implementing agency
Despite the Supreme Court having ordered transparency in the appointments of information commissioners, the Department of Personnel & Training (DoPT), which is also the implementer of the RTI Act, stonewalled information on this issue; only to be admonished by the Central Information Commission (CIC), which has ordered it to provide the details sought under RTI.
 
CIC Divya Prakash, in his order, observed that  “. . . this kind of conduct amounts to stonewalling RTI applications and stifling the very letter and spirit of the RTI Act . By resorting to such unwarranted opacity, DoPT is setting a bad example for other public authorities and at the same time is discrediting its own footing as the nodal agency for the implementation of the RTI Act.’’
 
While warning the CPIO of DoPT not to take the RTI applications so casually, he also observed in his order that,  “It is also ironic that the information that has been denied in the instant case pertained to the appointment of information commissioners under the RTI Act, who are ordained with the statutory authority of securing the regime of transparency.’’
 
Information sought under RTI, relates to two complaints to the CIC made by the Delhi based RTI activist, Lokesh Batra, after the CPIO failed to provide information, citing the rejection clause in the Act.
 
Batra requisitioned from the DoPT, certified copies of all communications (in the available format) between DoPT and PMO, concerning the appointment of information commissioners (ICs) in the CIC and; secondly, he sought certified copies of communication(s) seeking approval from PMO, regarding the framing of RTI Rules, 2017.’’
 
In his reply, the CPIO replied that the matter related to the appointment of ICs in the CIC is under process and so, as per Section 8(1)(i) of the RTI Act, 2005, “the information cannot be given at this stage.’’ 
 
Batra rued that despite the DoPT being the nodal agency for implementing the provisions of the RTI Act, the blatant application of exemptions of Section 8 by its CPIOs is akin to stalling RTI requistions.” 
 
Batra appealed to the CIC to take strict action against the CPIO and consider imposing penalty on him.
 
At the CIC hearing held recently, CIC Divya Prakash Sinha asked Sanjay Kumar, under secretary & CPIO of DoPT, for justification for the denial of information under Section 8(1)(i) of RTI Act. He passed the buck to the earlier CPIO, Preeti Khanna, (under secretary & CPIO). She had replied to Batra that the process of appointment of CIC and ICs was underway at that time. In addition, the documents, asked for by Batra, were to be submitted to the search committee (committee of secretaries); subsequently, it was to be submitted to the committee chaired by the prime minister, leader of the opposition and a union cabinet minister. 
 
The CIC ruled that the both the CPIOs’ reasons for denying information appears 'incoherent' and  “does not convey any substantial justification for invoking Section 8(1) (i) of RTI Act.’’ CIC has slammed both the former and present CPIO on “their sheer evasiveness and non-application of mind in dealing with the instant RTI application.”
 
Admonishing the then CPIO for invoking Section 8(1)(i) of the RTI Act without assessing its applicability, he warned the present CPIO against mindlessly endorsing the reply of the then CPIO.
 
The RTI Act 2005, Section 8(1)(i) reads :
(i)
cabinet papers including records of deliberations of the council of ministers, secretaries and other officers:
 
  Provided that the decisions of the council of ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: 
Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; 
 
Batra argues:
  • Under Section 12(3) of the RTI, Act, 2005; the selection of chief information commissioner and information commissioners in CIC, are made by the President based on the recommendations of committee consisting of the PM, the leader of opposition in Lok Sabha and a union cabinet minister to be nominated by the prime minister.
     
  • On the other hand, the cabinet papers are prepared for the union cabinet’s  consideration and approval, while that is not the case with process of selection and appointments of information commissioners in the CIC.
     
  • It makes it abundantly clear that documents concerned with the selection / appointment of information commissioners are in no way ‘cabinet papers’ as stated by the CPIO for exemption under Section 8(1)(i) of the Act.
 
(Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.)
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COMMENTS

Harish

2 days ago

Nice work, madam.

CIC Asks MHA to Provide Details of Mercy Plea to Mother of A Death-Sentenced Convict under RTI
The central information commission (CIC) has asked the Union ministry of home affairs (MHA) to provide the mother of a death row convict lodged at Pune’s Yerawada Central Jail, file notings, relating to his mercy petition, but by making opaque the names of officials who have noted on those files, to guard their personal safety.
 
Ujwala Kokde had filed an RTI application with the central public information officer (CPIO), judicial division, in the MHA seeking information pertaining to the mercy petition of her son, Pradeep Kokde, who is facing death sentence. The information she sought comprised (i) copy of any memo/note/comment made in relation to the mercy petition filed by Pradeep Kokde, (ii) copy of the entire mercy petition file of Pradeep Kokde, and (iii) copy of the file notings pertaining to the file of the mercy petition filed by Pradeep Kokde.
 
The CPIO denied information on the ground under Article 74(2) of Constitution of India, which states that, “the question whether any, and if so what, advice was tendered by ministers to the President shall not be inquired into in any court.” 
 
She filed her first appeal with the first appellate authority (FAA) of the MHA but did not receive any response and so filed a second appeal with the CIC.
 
At the CIC hearing on 11 June 2019, Ms Kokde was represented by Ragni Ahuja through video conferencing. He stated that the CPIO denied Ms Kokde information under Article 74 (2) of the Constitution of India but this reason is invalid as the information she has sought does not pertain to any ministerial advice, which is protected under Article 74(2) of the Constitution.
 
Mr Ahuja further stated that the material including file noting and correspondence on which the advice is based is not privileged and hence, not covered under the Article 74 (2). 
 
Quoting two cases, he stated that the Supreme Court, a seven judge bench in one case and a nine judge bench in another, had not only allowed notings made by high constitutional functionaries but in one of the cases, directed CIC to provide complete information requisitioned under RTI.
 
The CPIO, at the hearing, insisted that the ministerial advice, opinion and recommendation is made to the President on the basis of the documents, i.e. file noting, petition and letters and, hence, the same are privileged under Article 74 (2) of the Constitution of India and cannot be disclosed under the RTI Act.
 
Sudhir Bhargava, the chief information commissioner (CIC), who was hearing the second appeal, passed an order stating that the MHA should provide all the file notings asked for by Ms Kokde but by scratching off all the names of the officials who have noted in the files, for their personal safety. 
 
His order of 12 June 2019, states: “the file noting and correspondence received or sent by the ministry of home affairs pertaining to the appellant’s mercy petition which is not a part of the ministerial advice to the President as well as the file noting relating to the file of the mercy petition file by Shri Pradeep Yeshwanth Kokde as sought by the appellant (Ms Kokde) can be provided to the appellant.”
 
“The Commission, however, observes that the file noting and the correspondence could contain the names of the officials recording the same, the disclosure of which would endanger the life or physical safety of these officials and hence its disclosure is exempted under Section 8(1)(g) of the RTI Act. In view of this, the Commission directs the respondent to provide the information sought for, after severing all the names and other references which could reveal the identities of the public officials concerned, to the appellant…”
 
It may be noted that Ms Kokde filed her RTI application on 13 July 2017 with the CPIO in the MHA; her first appeal on 22 August 2017 with the FAA, MHA and her second appeal on 21 December 2017 with the CIC at Delhi. However, the second appeal’s hearing, that is the CIC hearing came up one year, 11 months later, that is on 11 June 2019!
 
One of the court orders that CIC Bhargava cited to come to his decision, revolves around a court judgment. It mulls over which of the public interest is larger – whether the disclosure will cause unwarranted invasion of privacy or needs to be disclosed for larger public interest:
 
“Moreover, regarding the documents/material which do not form a part of the advice and the consequent disclosure of the same in the interest of justice, the Hon’ble Delhi High Court in Union of India vs. P.D. Khandelwal case [W.P. (C) 8396 of 2009, judgment dated 30.11.2009] had also held:
 
34. Possibly the only class of documents which are granted immunity from disclosure is those mentioned under Article 74(2) of the Constitution. These are documents or information which are granted immunity from disclosure not because of their contents but because of the class to which they belong.
 
Other documents and information which do not fall under Article 74(2) of the Constitution cannot be held back on the ground that they belong to a particular class which is granted absolute protection against disclosure. All other documents/information is not granted absolute or total immunity.
 
Protection from disclosure is decided by balancing the two competing aspects of public interest, i.e., when disclosure would cause injury or unwarranted invasion of privacy and on the other hand if non-disclosure would throttle the administration of justice or in this case, the public interest in disclosure of information. In such cases, the court/CIC has to decide, which of the two public interests pre-dominates.”
 
(Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.)
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SBI Stonewalls RTI Plea on Electoral Bonds, Despite Sharing Info with Government
The recent news reports of the State Bank of India having sold electoral bonds of Rs5851 crore in the months of March and April, spurred the Right to Information (RTI) activists to seek more information from the bank and from the department of economic affairs, finance ministry, but their requests  are being stonewalled.
 
Vihar Durve, Pune based RTI activist, to whom the SBI had replied under his RTI request that the SBI sold electoral bonds worth Rs1365.69 crore in March and Rs2256.37 in April, filed an RTI application for more information on this issue.
 
He has now asked them to furnish all letters between the years 2017 and 2019, falling under correspondence/directions/notifications/ emails relating to the electoral bonds received from the Reserve Bank of India, any other government department or any other competent authority. He has also asked for information on the action taken by SBI to all these correspondences and copies of the acts, rules, notifications, office memoranda and circulars relating to the electoral bonds.
 
The Central Public Information Officer (CPIO) has declined to provide information under the garb of it being an issue of `fiduciary relationship’ by stating in his reply that: ``Information sought by the applicant cannot be disclosed as it is in fiduciary capacity, disclosure of which is exempted under Section 8 (1) (e) and 8 (1) (j) of the RTI Act 2005; As for the requisition on the web link where such documents of larger public interest have been uploaded, the RBI stated in its reply that `no such web link is maintained.’’ Durve is planning a second appeal as well as seeking legal intervention.
 
Commodore Lokesh Batra (retd), noted Delhi based RTI activist has also sent an RTI requisition to the department of economic affairs (DEA). He has sought information on phase-wise and denomination-wise information in respect of electoral bonds (EBs) sold mentioning the amount in  rupees as follows: (a) sale and EBS start date; (b) sale and EBS end date; (c) redemption of EBS end date; (d) denomination-wise (i) number of EBS sold with (ii) amount in  Rupees; (e) denomination-wise (i) EBS redeemed with amount in  Rupees; (f) denomination-wise & amount-wise, ‘funds  transferred to PMNRF; (g) complete process / steps of how and who (public authority) transfers funds to PMNRF and; (h)  redeemed percentage.”
 
CPIO of the department of economic affairs washed off his hands stating that such information is not available at all. Alleges Batra, ``the CPIO through his letter of 14th June, has provided misleading and false information amounting to saying that information sought is not available all. While most of the information requested was included in table form in the government affidavit filed in Hon’ble SC in in Case WP(C) 880/2017, in the matter of “ADR Vs Union of India & Others. The DEA’s affidavit clearly reveals that SBI has been regularly and phase-wise, sharing information with the government.”
 
Adds Batra, ``It has always been dreaded that the ‘government in power’ would come to know through the SBI - the names of donors of ‘electoral bonds’ to the political parties. This fear is coming closer to certainty after the opaqueness displayed by first the SBI and now the government (department of economic affairs (DEA), ministry of finance) in denying information under the RTI Act.’’ Batra has now filed a second appeal as well as a complaint to the Chief Information Commissioner (CIC), seeking the required information and penalty to the CPIO, DEO for misleading information in his reply. 
 
(Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.)
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COMMENTS

P M Ravindran

2 weeks ago

When the information commissioners have themselves subverted the law that they have been tasked, empowered, equipped and paid to enforce, so thoroughly why should the public authorities be worried about the scarecrow called RTI Act? I dare say if Sec 219 of the IPC were to be invoked all the ICs (if there are the usual exceptions they are not known) would be spending the rest of their lifes and beyond behind bars. In fact I had challenged the then VP, Hamid Ansari and the current Prez, Kovind, to get atleast 4 correct decisions of ICs across the country which are correct not only as decisions but having followed the correct procedure.

shadi katyal

2 weeks ago

Why would SBI deny any such information unless it is trying to protect the party which floated such bonds and under what rules. Common man is not aware what it was or is and stands for.
Are these the funds used by BJP to win elections and buy opposition members if so people of the nation should know such in details.
When wa this bill passed to issue such Bonds?

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