Delhi HC Asks CIC To Reconsider Appeal of 2006 Mumbai Blast Accused
In what appears to be a bold step towards reinforcing the rule of law in the country, an individual under the scanner for a crime has been added to those myriad segments of the society who harness the Right to Information (RTI) Act for procuring justice. While we know of innumerable RTI applications filed from behind the closed doors of jails, in this case an alleged accused in the deadly 2006 Mumbai train blast case, Ehtesham Qutubuddin Siddiqui, has used RTI to procure a copy of the Intelligence Bureau (IB) report placed before the home ministry, which according to him has stated that he was falsely implicated in the serial blasts.
 
Siddiqui was tried in the 7/11 blast case and was convicted on 30 September 2015 by the Special Maharashtra Control of Organised Crime Act (MCOCA) Court.  The petitioner stated that the said verdict is pending confirmation before the Bombay High Court. When he got to know that the IB has placed a report with the home ministry in 2009 wherein he is probably falsely implicated, he filed an RTI application with the central public information officer (CPIO) to procure a true copy of the IB report submitted to the home ministry. 
 
On 21 September 2017, the CPIO rejected the application and denied the information, under Section 24(1) of the RTI Act wherein IB is excluded from the purview of the RTI Act.
 
Siddiqui then filed his first appeal, contending that CPIO's rejection citing Section 24(1) of the RTI Act, was invalid because the same section also states "the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section..."
 
The first appellate authority (FAA), however, rejected this contention and upheld the decision of the CPIO.
 
Siddiqui then filed a second appeal with the Central Information Commission (CIC). CIC Yashovardhan Azad also rejected the request stating in his order of 26 March 2018 that, “The Commission finds that the present query raised by the appellant fails to satisfy either of the essential preconditions of being related to allegations of corruption and human rights violations. As such, the RTI request is bad per se in law and the present appeal is dismissed.’’
 
Siddiqui then approached the Delhi High Court. His lawyer, Arpit Bhargava, argued in the court on 16 January 2019, that,  “the information sought by the petitioner pertains to the violation of human rights; that Siddiqui was/has been falsely implicated in the 7/11 blast case by fabrication of evidence and was awarded capital punishment on the basis of false and fabricated evidence.  Thus, his case falls within the scope of human rights violation.’’ 
 
The High Court observed that the 'conclusion’ arrived at by the CIC is “erroneous, as the information does relate to a violation of human rights.’’
 
Justice Vibhu Bakhru from the Delhi HC further observed that, as per the Section 24 (1) of the RTI Act, only the CIC has the authority to examine the document (the IB report) and decide whether it is fit for disclosure. 
The HC order states:  “In terms of second proviso to Section 24(1) of the RTI Act, the information sought for by the petitioner can be provided to him only on the approval of the CIC. Clearly, the CIC would have to examine whether such information is relevant and material. If the CIC on examination of the material finds that it is not so, the approval for disclosure of such information would not be granted.’’
 
The HC order of 16 January 2019 also states: “Section 8 of the RTI Act provides for certain exemptions from disclosure of information and the said provisions would be equally applicable to information pertaining to allegations of corruption and human rights violation. Thus, the concerned authorities would have to examine whether the information sought for by the petitioner is otherwise exempt from such disclosure by virtue of Section 8 of the RTI Act.’’
 
Thus, the matter has been “remanded to the CIC to consider afresh having regard to the observations made in this order.’’
 
(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

Meenal Mamdani

3 weeks ago

Wonderful. If the accused can obtain the said document and that proves malfeasance of the police, RTI would have served its purpose.

SC issues contempt notice to RBI in RTI case
The Supreme Court has issued notice to the Reserve Bank of India (RBI) on a contempt petition which alleged that the central bank did not provide information sought about the inspection reports of some banks and on the alleged irregularities in the case of Sahara Group of companies under the transparency law.
 
A bench headed by Justice Nageshwar Rao issued the notice on a petition filed by a Mumbai resident who contended that the RBI had refused to part with the sought information despite apex court rulings on the issue.
 
The petitioner, Girish Mittal, represented by senior counsel Prashant Bhushan and Pranav Sachdeva, contended that he had sought information under the RTI Act in December 2015 like copies of inspection reports of ICICI Bank, Axis Bank, HDFC Bank and SBI from April 2011 and copies of cases files with file notings on various irregularities detected by RBI in the case of Sahara Group of companies and erstwhile Bank of Rajasthan.
 
The contempt petition is concerned with the "denial of information", he said.
 
The petition recalled the Supreme Court ruling in a case that RBI is clearly not in any fiduciary relationship with any bank. RBI has no legal duty to maximise the benefit of any public sector or private sector bank and thus there is no relationship of 'trust' between them. 
 
"The RBI ought to act with transparency and not hide information that might embarrass individual banks. It is duty bound to comply with the provisions of the RTI Act and disclose the information sought," the apex court had observed in that case.
 
Disclaimer: Information, facts or opinions expressed in this news article are presented as sourced from IANS and do not reflect views of Moneylife and hence Moneylife is not responsible or liable for the same. As a source and news provider, IANS is responsible for accuracy, completeness, suitability and validity of any information in this article.
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SC Seeks Explanation for Arbitrary Appointment of Information Commissioners
The Supreme Court on Tuesday took note of the arbitrary and haphazard manner in which the information commissioners in the Central Information Commission were selected recently and directed the Department of Personnel & Training (DoPT) to reply by 29th January, at the next hearing. 
 
This is a sequel to Supreme Court’s directive to DoPT to upload on its website details of the process of information commissioner appointments by the selection and search committee. Thanks to legal intervention by three right to information (RTI) activists, Anjali Bharadwaj, Amrita Johri and Commodore Lokesh Batra (retd), these documents, in the public domain now, reveal how the selection committee violated several norms to appoint the Chief Information Commissioner and four information commissioners of “their choice.”
 
Now, it is clear that the appointment of Sudhir Bhargava, an information commissioner until now in the CIC and four information commissioners—Vanaja N Sarna (the only lady), formerly, chief of the Central Board of Excise and Customs (CBEC); Yashwardhan Kumar Sinha, former High Commissioner of India to the UK; Suresh Chandra, former Union law secretary and Neeraj Kumar Gupta, secretary in the department of investment and public asset management are not as per the norms laid out for these  committees as per the RTI Act.
 
On Tuesday, one of the petitioners, Anjali Bharadwaj, pointed out in the Supreme Court, “the search committee had, in violation of its mandate, short-listed persons who had not even applied for the post in response to advertisements. Further, the minutes of the search committee meeting revealed that no rational criteria were adopted on the basis of which the short-listing was done. Also, the minutes showed the completely ad-hoc manner of functioning of the search committee, wherein people who were appointed members of the committee, also applied for the post and had to be subsequently replaced and were finally even short-listed. One of the person who has been appointed- Shri Suresh Chandra, had not even applied for the post.” 
 
The Supreme Court took serious note of all the issues and directed that the government should file a report on all the issues highlighted by the petitioners and listed the matter for Tuesday, 29 January 2019. All the states were also directed to file their reports before the hearing.
 
Research scholar and RTI activist, Venkatesh Nayak has closely studied the documents put up by the DoPT regarding the selection committee’s glaring bias of appointing present and former government servants as information commissioners, by throwing to the winds rules under Section 12 (5) and 15(5) of the RTI Act as well as the Supreme Court ruling in the matter of Union of India vs. Namit Sharma [ AIR 2014 SC 122], which clearly state that eminent persons from various fields should also be chosen for the posts.
 
The following is Venkatesh Nayak’s observations and analysis, along with those of Commodore Batra:
 
  • The file notings show that 64 applications were received within the stipulated deadline, from across the country against the vacancy advertised in two English language and two Hindi language newspapers. Four applications were received after the lapse of the deadline. The DoPT has only disclosed the names of these applicants and withheld their applications and bio data by invoking Section 8(1)(j) of the RTI Act which seeks to exempt personal information of an individual from disclosure. About 20 pages of documents contained in the files have been withheld from disclosure in this manner.
 
Who were the search committee members?
 
  • The six-member search committee headed by the cabinet secretary included the secretaries of the DoPT and the dept. of expenditure (in the finance ministry), the information & broadcasting, and the additional secretary to the prime minister of India. The director of the Institute of Economic Growth was the independent member. Interestingly, the secretary, dept. of expenditure declared that he had applied for the post of information commissioner. So after consultations with the PMO, he was retained on the search committee
 
  • How many times did the search and the selection committees meet?
 
Only four members of the search committee met on 24 November, 2018 in the committee room of the cabinet secretariat to draw up the shortlist. According to the file notings disclosed by the DoPT, the secretary I&B and the secretary, expenditure could not attend the meeting. 
 
The selection committee comprising the Prime Minister, his nominee, the finance minister and the leader of the single largest party in opposition in the Lok Sabha met on the 11th of December to finalise their recommendation to the President of India. Only one name of the appointee was recommended. In fact, contrary to media reports, the selection of the chief information commissioner preceded the finalisation of the names of the information commissioners.
 
Whom did the search committee shortlist?
 
The search committee shortlisted four candidates for the consideration of the selection committee. All four of them were retired IAS officers including the newly appointed chief information commissioner, Sudhir Bhargava. No women were included in this short list. The list of 68 applicants reveals the names of at least four women. No candidate from other areas of specialisation mentioned in the RTI Act was shortlisted. This is a clear breach of the Supreme Court's directions.
 
Further, the serving information commissioners, Bimal Julka and D. P. Sinha who had also applied for the post of the chief information commissioner, were not even shortlisted. Further, three of the four shortlisted candidates had not even applied in response to the advertisement for the vacancy of the chief information commissioner. They included Madhav Lal, a former secretary of the ministry of micro, small and medium enterprises,  
Alok Raawat, a former secretary of DoPT's sister department, department of administrative reforms and public grievances,  R P Watal, the current principal adviser Niti Ayog and former secretary, dept. of expenditure and Dr. S. K. Nanda, former addl. chief secretary, government of Gujarat. 
 
Observes Nayak, “The search committee meeting minutes indicate that its members considered names of other serving and retired civil servants who had not applied at all. This is perplexing to say the least. One of the women applicants had recently retired as the chief secretary of the government of Karnataka. How her candidature was given lesser weightage than that of the former addl. chief secretary of Gujarat who had not even put in his application in the first place, is a mystery. The minutes of the search committee meeting are silent on this issue. This raises serious questions about the manner in which the search committee determined "eminence" in public life. Neither the committee nor the DoPT have publicised the criteria adopted for determining "eminence in public life". Further, how the claims of the two serving information commissioners were undervalued in comparison to the three shortlisted retired bureaucrats who had no previous experience of adjudicating RTI disputes in any information commission is also a mystery that needs to be cleared.’’
 
Tenure and terms and conditions of service of the new appointees
 
It may be remembered here that the government sought to amend the RTI Act mid-2018 to give itself the power to determine the tenure and the terms and service conditions of the information commissioners across the country. Despite giving notice of its intention to introduce a bill to this effect in the Rajya Sabha, the government was not able to introduce it during the 2018 monsoon session. The documents disclosed by the DoPT indicate that the government sought to make the changes through the ordinance route. However, this plan did not materialise and the documents that the DoPT has disclosed on its website are silent on the underlying causes. The file notings indicate, the government was planning to reduce the term of the information commissioners to three years.
 
The only good part of these appointments:
 
The selection intimation letters issued to the new appointees indicate that the terms of appointment are in accordance with the provisions of the RTI Act, namely five years (including term served as information commissioner) subject to the maximum age limit of 65. Salaries will be equal to that of the chief election commissioner and the election commissioners, as the case may be, in accordance with the provisions of the RTI Act. So despite advertising that the government would determine the tenure and service conditions of the chief information commissioner and information commissioners, the government has had to eat humble pie by toeing the line of the law.
 
Box
 
How much time did the Committees spend making the final selections?
The documents released by the DoPT reveal only the date, time and venue of the meetings of the search and the selection committees. 
 
The search committee met on three occasions (twice for shortlisting the candidates for appointing as ICs and once for shortlisting the candidate for appointment as the chief information commissioner). 
 
The selection committee met twice. The duration of these meetings is not recorded in the meeting minutes. However, the minutes indicate that the search committee looked at all eligible applications (the number is not known- whether all applications received were found eligible or not) and also discussed names of other serving and retired civil servants suggested by its members. 
 
  • The minutes of the selection committee indicate that it not only examined the applications shortlisted by the search committee but also all eligible applications. A simple thought experiment may be conducted to estimate the time required to consider all applications:

 

  • Chief information commissioner's post: There were 64 applicants who submitted their applications in a timely manner. The search committee recommended three more names. So the selection committee had to examine 67 applications. Assuming that each bio data would require at least 5 minutes to read and familiarise oneself, each member of the selection committee would require to spend 335 minutes. In other words this implies spending at least 5.5 hours merely examining all applications. If the 4 late applicants' bio data are included, another, 20 minutes will have to be added to this figure.

 

  • Information commissioners' post: There were 281 applicants who submitted their applications in a timely manner. The search committee recommended one more name. So the selection committee had to examine 282 applications. Assuming again that each bio data would require at least 5 minutes to read and familiarise oneself, each member of the selection committee would require to spend 1,410 minutes, that is, at least 23.5 hours - or almost an entire day examining all applications. If the 10 late applicants' bio data are included, another 50 minutes will have to be added to this figure. Taken together, the selection committee would have to spend at least 29 hours merely reading the applications. How much time would be required to "consider all relevant factors" before arriving at a consensus on the five names (one chief and 4 ICs) as mentioned in the minutes is anybody's guess.

 

Asks Nayak,  “Did the committee actually spend so much time on the selection process? The government must urgently answer.’’

 
(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

Good that the Delhi High Court found merit in the petition. But the question remains: did it have to refer the case back to the CIC? If the High Court is a court empowered to entertain a petition against the decision of the CIC, doesn't it ipso facto translate to powers to do as much as the CIC can do plus something more? I know of a case considered by the Delhi High Court-W.P. (C) 7372/2007 & CM APPL 14017/2007 decided on 5th Aug 2010 by Judge Muralidhar. It was not an appeal against the decision of the CIC but against the decision of the 1st appellate authority when there was delay at the CIC in considering the 2nd appeal. And the 2nd appeal was denial of information sought but only on the delay and the consequent penalty to be imposed. The court did not revert the case to CIC but itself imposed the penalty mandated under the RTI Act of Rs 22,500/-. Better still, it awarded this penalty amount to the petitioner apart from a compensation of another Rs 30,000/- to be paid by the CVC. Incidentally, the court once again failed to do justice because the penalty was to be imposed on the Public Information Officer and those specific public servants who had failed to comply with the law and not the tax payer!

The other questions that need to be asked is wasn't the IC, Yashovardhan Azad, aware of this proviso to Sec 24(1) of the RTI Act? And the proviso to Sec 7(1) which mandates that where the information sought for concerns the life or liberty of a person, the same shall be provided within forty-eight hours of the receipt of the request.?

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