In your interest.
Online Personal Finance Magazine
No beating about the bush.
Does this provision in Section 8 wherein, despite exemptions you have the right to information if it is of larger public interest being correctly interpreted by Courts? A study thinks otherwise
Notwithstanding Section 8 of the Right to Information (RTI) Act under which you are denied the right to certain information, there is a provision which states that, every citizen has the right to get that information which our elected representatives, have access to. It reads thus, “Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”
However, it has been observed in an expert study, conducted by the Commonwealth Human Rights Initiative (CHRI) that the judiciary has been inconsistent in application of this provision and therefore “does not provide clarity of interpretation of this crucial provision of the RTI Act.’’
Sometimes, the judiciary applies it to the entire Section 8 (1) which should be the case according to the CHRI’s analysis but many a time in its judgment, the judiciary restricts this provision only to Section 8 (1)(j) which relates to protection of personal information. Such varied interpretation which is diluting the power of this provision says the study, would have adverse repercussions for citizens, if this trend continues in the court of law.
Interestingly, even the Department of Personnel and Training (DoPT), Government of India in its guidelines to public authorities, Public Information Officers (PIOs) and First Appellate Authorities (FAAs) at the Central and State level for implementing the RTI Act, directed them to follow this provision by stating that: “The Act gives the citizens a right to information at par with the Members of Parliament (MPs) and the Members of the State Legislatures (MLAs). According to the Act, information which cannot be denied to Parliament or a State Legislature shall not be denied to any person.’’
However, many PIOs and FAAs continue to decline information and the matter goes to information commissioners who often order disclosure of information. However, petitioners seek legal intervention and it is here that the provision is not used in its true spirit, as per the study.
Venkatesh Nayak, Programme Coordinator, Access to Information programme, Commonwealth Human Rights Imitative (CHRI) conducted the study to highlight how the provision is being narrowly used. States Nayak, “In 18 judgments interpreting the provision, this is far from convincing. We have chosen one such issue for analysis where despite the existence of more than 15 judgments, the jurisprudence does not provide clarity of interpretation of this crucial provision of the RTI Act. Settlement of access disputes in the High Courts has not always conformed to the doctrine of precedent.”
Nayak observes that, “Eight High Courts have interpreted the scope and application of the proviso under Section 8(1) varyingly. Starting with the Bombay High Court, in 2007, five High Courts (Bombay, Delhi, Madhya Pradesh, Madras and Patna) have interpreted this proviso in six cases as being applicable only to clause (j) of Section 8(1), namely, the exemption protecting personal information of an individual from disclosure. Three High Courts (Calcutta, Kerala and Punjab and Haryana) have in ten cases interpreted this proviso as applying to all exemption clauses listed in Section 8(1). In at least two High Courts (Bombay and Delhi) single‐judge and Division Benches have held contrary views indicating the lack of crystallisation of judicial precedent, regarding the interpretation of the scope and application of this proviso.’’
Section 8 (of the RTI Act) deals with exemptions to the right to information. Nayak points out that:
• Sub‐Section (1) lists out the specific exemptions to disclosure –namely, information that an applicant may not claim as a matter of right
• Sub‐Section (2) provides for the disclosure of even exempt information when public interest in disclosure outweighs the harm to the protected interests.
• Sub‐Section (3) limits the operation of seven out of the ten exemptions up to 20 years for a given set of records. The exemptions relating to national security, foreign relations with foreign Governments, Parliamentary and Legislative privilege and Cabinet documents apply for an indefinite period of time.
• A proviso is inscribed at the bottom of Section 8(1) which states that… Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”
The study highlights several judgments which have interpreted Section 8 (1) in different modes. In most of these cases, the High Courts have upheld the orders of information commissioners but the judgment is not based on a comprehensive look at this provision. This study aims to provide insight into this discrepancy. Concludes Nayak, “We hope that in an appropriate case the true meaning of the proviso underlying Section 8(1) is interpreted by the courts with due regard to legislative intent and the drafting history of the RTI Act.’’
Following are a few examples:
Case 1: A member of the Legislative Assembly (MLA) was sentenced to a month’s imprisonment for committing contempt of Supreme Court’s orders during his tenure as Minister in the Government of Maharashtra. He spent 21 days of his jail term in a hospital in Mumbai under the pretext of being treated for various illnesses.
A citizen sought medical reports of his treatment, under RTI, in order to ascertain why the MLA had spent most of the duration of his sentence in an air‐conditioned hospital. The Petitioner objected to the disclosure of his medical records claiming that such action would cause invasion of his right to privacy. The matter escalated to the State Information Commission which ordered disclosure in the larger public interest.
The Petitioner (the MLA) challenged the order of disclosure on various grounds including the right to privacy and the requirement of confidentiality of patient‐related information under the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002.
A two‐judge Bench of the Bombay High Court upheld the order of disclosure of the Petitioner’s medical records in the larger public interest. (Mr Surupsingh Hrya Naik v/s State of Maharashtra Through Additional Secretary, General Administration Deptt. And Others, Bombay High Court [Writ Petition No. 1750 of 2007] decision date: 23/03/2007)
CHRI’s analysis: “The Court relied upon the judgement of a single‐judge Bench in an earlier dispute relating to access to information under the Goa Right to Information Act, 1997 (Goa RTI Act) to hold that the proviso underlying Section 8(1) applied only to clause (j)… The main cause in the Surupsingh Naik case was about an individual’s right to privacy in relation to his medical records. In our opinion inquiring into Parliament’s intent behind placing the proviso under Section 8(1) in the light of the Court’s earlier pronouncement was necessary before determining its scope and application. Instead the ratio of the Court in the Panaji Municipal Council case was applied mechanically without regard to the reasoning that informed it. In view of this glaring contradiction the Court’s reading of the import and application of the proviso underlying Section 8(1)(j) of the RTI Act, deserves to be reviewed.’’
Case 2: An Applicant sought information about the appointment, posting, transfer and promotion of clerical staff employed by the Canara Bank (the Bank) in Ernakulam district of Kerala during the period 2002‐2006. The Bank denied access on various grounds. When the matter escalated to the Central Information Commission (CIC), it ordered that the information be disclosed. The Bank challenged this order before the Kerala High Court claiming the protection of Section 8(1)(e)‐ when information is available to a person in his fiduciary relationship‐ and Section 8(1)(j)‐ when disclosure of personal information has no relationship to any public activity or interest or if disclosure would cause unwarranted invasion of the privacy of the individual. A single‐judge Bench of the Court rejected both contentions and upheld the order of the Central Information Commission. (Canara Bank vs the Central Information Commissioner and Another, Kerala High Court [Writ Petition (Civil) 9988 of 2007, decision date: 11/07/2007]7 2.1)
CHRI’s analysis: The Court independently held that the proviso applied to the whole of Section 8(1) and not merely to clause (j) of that Section. More importantly, the proviso to the section qualifies the section by stating that information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.
Case 3: A student sought access to his answer sheets in a Bachelor’s Degree examination conducted by the University of Calcutta. The PIO rejected the request without invoking any of the exemptions provided in Section 8 of the RTI Act. He merely stated, in an undated letter, that the University had taken a decision not to permit inspection of evaluated answer scripts under the RTI Act.
The matter escalated to the High Court where the University cited a decision of the CIC which had ruled in an earlier case that where Boards and Universities conducting public examinations had evolved a robust system of evaluation and, if, by their own rules, prohibited disclosure of evaluated answer‐sheets or where such disclosure would result in rendering the system unworkable in practice, a citizen could not seek disclosure of the answer‐sheets. The University also contended that answer scripts did not fall within the definition of information under Section 2(f) of the RTI Act and that disclosure of the evaluated answer scripts would endanger the lives of the examiners. The University contended further that the Supreme Court had in earlier decisions refused to order disclosure of such documents, so Section 8(1)(b) of the RTI Act would apply. A single‐judge Bench of the Court rejected these contentions in a well reasoned judgement and ordered the evaluated answer sheets to be disclosed. (Pritam Rooj vs University of Calcutta, Calcutta High Court [Writ Petition No. 22176 of 2007], decision date: 28/03/2008.)
CHRI’s Analysis: …The Court also took notice of the need for protecting the privacy of individuals. However the Court held that the proviso underlying Section 8(1) applied to the whole of that Section…The proviso at the foot of Clause (j) appears to cover the entirety of Section 8(1), notwithstanding the view taken by the Division Bench of the Bombay High Court. The manner in which the exceptions to the rule have been carved out in Section 8 and the proviso which appears to govern all the cases covered by Section 8(1) of the said Act, makes the exemption section exhaustive. [emphasis supplied]…That the Court rejected the finding of a larger Bench of another High Court without supplying a reasoned justification is problematic, particularly when both parties had used the ratio to support their contention..
In case you would like to have the full report, please contact:
Access to Information Programme
Commonwealth Human Rights Initiative
B-117, First Floor, Sarvodaya Enclave
New Delhi- 110 017, INDIA
Tel: +91-11-43180215/ 43180201
Skype: [email protected]
Alternate Email: [email protected]
For the first time, investors of scores of portfolio management schemes run by banks and brokers will be able to access information on their performance and track-record on the SEBI website. This follows an order by the Chief Information Commissioner under the RTI Act. SEBI has been asked to upload this information from April 2013
In a pathbreaking order, the Chief Information Commissioner (CIC) Satyananda Mishra, at a hearing conducted on 17 January 2012 in Mumbai has directed the Securities and Exchange Board of India (SEBI) to put up monthly information of individual Portfolio Management Services (PMS) on its website effective from April 2013. Once the data is put up, it will allow investors to compare and contrast various PMS schemes and make careful and informed decisions, based on their track record before entrusting sums starting from a whopping Rs25 lakh or more to portfolio managers.
This order not only represents a big victory for Indian investors and comes at the end of a long battle by Moneylife to ask the regulator to make PMS schemes more transparent. For the past three years, Moneylife has also helped several investors recover funds, wrongly deducted by PMS. The wrongful losses have extended from a few lakh to as much as Rs1 crore.
The CIC’s order said, “We have carefully considered the facts of the case and the submissions made before us. It is an admitted fact that the desired information is available with SEBI, if not on an annual basis, at least on a monthly basis. Since this information is received electronically, it’s publication through the website would not be a difficult task. By publishing such information about all Portfolio Management Services (PMS) regulated by it, SEBI would serve two objectives. One, help the investing public to access all information at one place and not have to visit 50 different websites and, two, eliminate the need for seeking such information under RTI, from time to time”.
The CIC goes on to say, “We would like to direct that the monthly information received from the Portfolio Management Services (PMS) which can be disclosed without attracting any of the exemptions provisions of the Right to Information (RTI) Act should be published on the SEBI website beginning April 2013 and an intimation sent to the Appellant in this case about this.”
This has been a long battle for Moneylife. Our request for information was repeatedly rejected until we approached the CIC. Interestingly, Moneylife has been informally requesting SEBI to upload PMS performance information on its website for several years, but it refused to do so. In fact, after several hard-hitting reports about how leading banks and finance companies had damaged investors’ savings, SEBI issued an order asking them to disclose three years performance on its website and on application forms. But this was clearly not enough, since it did not allow comparison of authentic records.
In the final hearing before the CIC through a video conference, Gaurang Damani, a well known Mumbai-based activist appeared on our behalf. He argued that PMS is a very complex product requiring careful comparative analysis as parting with serious investment in the region of Rs25 lakh. Therefore, it was of utmost importance for people to have comparative data and it was not feasible to access the websites of 40 odd PMS providers to get the required information. While SEBI had irrationally taken the stand that this information was “fiduciary” in nature, we made the point that this information was already in the public domain, under SEBI’s own direction. All that we wanted was that the data be made available at one source. It is ironical that information dissemination, which is key to SEBI’s disclosure based regulatory regime, is likely to be put in the public domain only after a long battle with the regulator. The CIC heard our appeal on 17 January 2012. Convinced of our argument, CIC directed SEBI to put up information on the website.
Moneylife filed its first RTI query in 8 February 2012 after over two years of following up with SEBI to put out information on portfolio returns, assets under management (AUM), fees, etc, for individual PMS schemes on its website. Our application had been rejected on flimsy grounds (SEBI misrepresents public information on PMS as fiduciary; offers mindless response to simple RTI query).
We filed a first appeal to SEBI’s appellate authority on 26 April 2012. This was rejected on the grounds that—“It maybe true that AUM of PMS may be available on the website of PMS. It may also be true that SEBI may receive AUM from each of the PMS for regulatory purposes. However, to provide the information in the form sought, SEBI will have to compile the information. SEBI is not expected to compile the information to suit the need of individuals.” The arrogant callousness of the response should be seen in the context that SEBI itself has an investor education fund with crores of rupees, but won’t make the effort to compile and upload data and information that is crucial for a sensible investor to make an informed decision. The attitude also exposes the hypocrisy of all the spending on financial education and financial literacy that is being mandated and pushed by the regulator.
The genesis of our battle for transparency in PMS performance was the saga of investor Rajan Manchanda, who lost a whopping Rs1 crore when it invested more than Rs2 crore with Kotak PMS (Sordid tales). In other words, half of his portfolio got wiped out and SEBI did little to help.
Another investor who approached Moneylife saw 30% of his Rs52 lakh evaporate when he invested in a PMS scheme. For more details, check out this article we had written: Broking Houses Make Investors Go Broke.
A doctor saw a big chunk of her PMS investment vanishing after investing in JM’s portfolio schemes. She managed to get a few lakh rupees back after help from Moneylife. We had also compiled investors’ views on PMS here: Bad Experience.
Simply put, most investors do not know where to find information regarding PMS. Since they do not have information readily, they will not be able to verify deceiving numbers thrown around by ambitious sales persons. At the end of the day, they need to know if the high commission is worthwhile before parting with Rs25 lakh. Thus, with the information put up, now they will be in a better position to decide.
Other stories covered by Moneylife on PMS can be accessed below:
The annual appraisal reports of all IAS officers in Maharashtra are lost in the Mantralaya fire, claims the state government in an RTI reply
In an RTI (Right to Information) response to former Central Information Commissioner Shailesh Gandhi, the Maharashtra government has said that annual confidential reports (ACRs) of all 280 IAS, IPS officers were gutted in the Mantralaya inferno on 21st June last year.
“The fire on 21 June 2012 gutted the General Administration Department’s (GAD) office number 10, which had all original annual confidential reports and confidential reports of officers from the Indian Administrative Service (IAS). Therefore, we cannot provide the information sought by you for past two and more years,” the Public Information Officer (PIO) of GAD stated in his reply.
At present there are 280 IAS officers working in Maharashtra, out of which the government has initiated the performance appraisal for 259 officers. The assessment report of the rest 21 IAS officers is also being prepared, the PIO informed.
The PIO also clarified that since 27 IAS officers are working on a deputation out of the state, it cannot provide their appraisal reports.
Maharashtra chief minister Prithviraj Chavan had told reporters that 2.25 lakh files had been digitalised and 3.18 crore papers had been scanned prior to the incident. This means the rest about 4.82 crore pages were not digitised and were susceptible.
Mr Gandhi, sought information about the receipt of annual confidential reports of IAS officers in the state, for each of the last two years in the following format…
Total Number of IAS officers
Number of officers for whom ACRs/APRs have been received for the relevant year
Number of officers for whom ACRs/APRs have been not received for the relevant year
Number of officers for whom ACRs/APRs have not been received for two earlier years
Number of officers for whom ACRs /APRs have not been received for three earlier years and more
Here is the reply given by the PIO (in Marathi)...