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How to rein in abuse of the Rule-making power byCompetent Authorities under the RTI Act? [2 Attachments]

Dear all,
As a sequel to my email alert from yesterday, I am sending some critical comments on a recent decision of the Central Information Commission (CIC) refusing to lift a finger to do anything about the retrograde RTI Rules notified by the Madras High Court in April this year. Readers will remember my analysis of the restrictive effect of the recent amendments made to the Madras High Court Right to Information (Fee and Cost Regulation) Rules, 2014 from yesterday's email alert.

Central Information Commission Refuses to Examine the validity of the RTI Rules of the Madras High Court
Renowned RTI activist Mr. C J Karira filed a complaint with the CIC in July this year challenging the validity of the amended RTI Rules of the Madras High Court. A Full Bench of the CIC (3 members) rejected the complaint in August 2014, on the ground that they had no power to do anything about these Rules either under the complaints procedure or under the appeals procedure under Sections 18 and 19 of the RTI Act respectively (1st attachment). The CIC even refused to issue a recommendation to the Madras High Court seeking rectification of the retrograde Rules.

Abuse of the Rule-making power under Section 28
While some Governments such as that of Punjab, Haryana, Sikkim, Gujarat and Maharashtra initially notified exorbitant fee rates in 2005-06, some of them like Punjab subsequently reduced the rates for application fee and additional fee to the levels notified by the Central Government. However, more than one High Court used the rule-making power under Section 28 to demand exorbitant fees. For example, application fees were fixed at Rs. 500 per application in some High Courts. Copying charges were also prescribed at rates unaffordable by the common citizen. Subsequently, High Courts of Delhi and Allahabad brought down these rates to reasonable levels thanks to the pro-RTI attitude of their Chief Justices or due to litigation before those very Courts. However some High Courts continue to adamantly charge exorbitant rates. Both Sikkim and Gauhati High Courts charge Rs. 100/- as application fee. Gauhati High Court charges Rs. 5 per photocopied page. Both High Courts charge fees for entertaining first appeals - an act which has no sanction under the RTI Act. Nowhere does the RTI Act state that appeals must be accompanied by appeal fee. Some State Governments such as those in Arunachal Pradesh, Bihar, Chhattisgarh , Madhya Pradesh, Maharashtra, Mizoram, Odisha and Sikkim also charge appeals fees which is a complete violation of the law. With the deepest respect to its wisdom it must be said that the Chhattisgarh High Court's decision in the matter of Sanjay Singh Thakur vs State of Chhattisgarh and Ors., [WP (C) 67/2012] decision dated 7th October, 2013, to uphold the appeal fee notified by the State Government is not based on a consideration of all aspects of the law and most importantly, the democratic principle- that not a paisa may be raised from the citizenry by way of taxes or fees or cesses without the express approval of Parliament or the State Legislature.

Lack of oversight of the exercise of powers of delegated legislation
While Section 28 of the RTI Act empowers the Chief Justices of the Supreme Court and the High Courts and the Chairpersons of the Houses of Parliament and the State Legislatures, to make Rules for implementation, there is no provision for oversight of their exercise of the power of delegated legislation. Rules made by the Central Government under Section 27 of the RTI Act are subject to discussion, modification and even annulment by Parliament upon their being tabled in both Houses. However the RTI Rules made by State Governments are required to be only tabled in the state Legislature. The act of tabling ensures that Parliament can exercise oversight on the Central Government's exercise of its rule-making power to check whether the Rules are in tune with the letter and spirit of the principal Act or not. The Rules so tabled are examined in detail by the Committees on Subordinate Legislation of both Houses of Parliament and reports are submitted to the Chair of the House. Subsequently, either House may modify any or all of the Rules, nullify them or leave them unchanged. The Rules become operational as soon as they are notified in the Official Gazette. Any change in the Rules is a post facto decision.

Unfortunately, Section 28 under which the competent authorities such as the Chief Justices of High Courts and the Chairs of the Houses of Parliament and State Legislatures make RTI Rules, does not require these Rules to be tabled before Parliament or the respective State Legislatures. The law also dos not explain why this is so. Ostensibly, the objective is to not discuss the actions of the judiciary on the floor of the House - a hallmark of the separation of powers which is a basic feature of the Indian Constitution. However RTI activists and constitutional experts must raise this question - just because there is no oversight mechanism on the competent authorities, can they be allowed to abuse the power of delegated legislation entrusted o them by Parliament?

In my humble opinion, subjecting the RTI Rules made by the the competent authorities to a discussion in Parliament does not amount to infringement of their constitutional authority. I say this because, unlike the powers they draw from the Constitution for performing their assigned functions, the power of delegated legislation is vested in them by an act of Parliament. Parliament is the source of their rule-making power. I believe, Parliament is fully empowered to scrutinise how the powers it has granted to an authority are being exercised.  Kindly note that Parliament cannot question the actions of a Chief Justice of a judge of the High Court or the Supreme Court acting as such by virtue of the powers vested in them by the Constitution. But under Section 28 the Chief Justice functions as a 'competent authority' as defined under Section 2(e) of the RTI Act. So when Parliament examines the exercise of the rule-making power of the Chief Justice, it does not examine his/her role as the head of the High Court or the Supreme Court. No judicial action or decision or order is discussed or annulled under such circumstances. The independence of the judiciary would still be intact even if the RTI Rules framed by the Chief Justice are subject to Parliamentary scrutiny. Exercise of the power of  delegated legislation and not judicial behaviour will be subject to scrutiny. Yet, we would have a system of checks and balances against the abuse of the power of making RTI Rules. The principle of 'checks and balances' underpins our Constitution and is as important a basic feature as other basic features of the Constitution namely, separation of powers, independence of the judiciary and fundamental rights which are unamendable.

Analysing the CIC Order
It is strange that the CIC's order does not examine any of these issues while dealing with Mr. Karira's complaint. One is not sure whether the arguments described above were even placed before it. However, with two of the three Information Commissioners having a background in law, it is only reasonable to expect them to have discussed these matters as the appointed champions of transparency. When the CIC says it has no power to strike down any offending Rule made by the Central Government or by a competent authority, it is probably right. After the Namit Sharma review decision of the Hon'ble Supreme Court, it is clearly established, that the Information Commissions are administrative tribunals only. They are not quasi-judicial tribunals. So while they may examine the formulation and the spirit of the RTI Rules and agree or disagree with them, they do not have the power to strike them down in the manner of the High Court or the Supreme Court. However, the expressed lack of willingness on the part of the CIC to even issue a recommendation to the Madras High Court under Section 25(5) of the RTI Act is disturbing. Also, their refusal to agree that the ground of Mr. Karira's complaint falls under Section 18(1) is difficult to accept. 

In my humble opinion Section 18(1)(f) of the RTI Act- where a complaint relating to any other matter pertaining to the seeking and obtaining of access to records may be brought before the CIC- is wide enough to cover the ground that Mr. Karira has raised. In the matter of Chief Information Commr. & Anr. vs State of Manipur and Ors [AIR 2012 SC 864] the Hon'ble Supreme Court clearly held that the  under Section 18, Information Commissions exercise administrative jurisdiction and not appellate jurisdiction over the implementation of the RTI Act. Without prejudice to my misgivings about this ratio it must be said that the exercise of rule-making power is an administrative matter fit enough to be brought under a complaint procedure before the CIC. Of course the Hon'ble Apex Court held in Manipur case that no order except that of penalty can be imposed pursuant to a complaint procedure. With the greatest respect to the wisdom of the Apex Court it must be said that the reasoning does not take into account the existence of the word 'complainant' in two places in Section 19 which is titled- 'Appeals' in the margin. Be that as it may, while accommodating in this analysis the ruling of the Apex Court that no order except that of penalty can be made under Section 18, it must be said that nothing in that decision or Section 18 prevents the CIC from making a recommendation under Section 25(5). The CIC has rightly observed that making a recommendation under Section 25(5) is an administrative issue. However what harm is caused if a citizen brings an instance of reckless misuse of the rule-making power of a competent authority to the notice of the CIC through a complaint, especially, when the CIC has no power to take any suo motu action under the RTI Act? It can only act when moved through an appeal or complaint. Section 25(5) is often read as a sub-clause of Section 25 quite unfortunately. However the scheme of Section 25 clearly indicates that it describes two important functions of the CIC. The entire process of reporting about the implementation of the RTI Act to Parliament or the State Legislatures is covered in sub clauses 1-4 of Section 25. What Section 25(5) does is entrust an important oversight function to the CIC and its counterparts in the States where a public authority may be told that its practices are not in conformity with the letter and the spirit of the Act. Nowhere does Section 25 state that such a recommendation must be made in an Annual Report nor does it prohibit an Information Commission from making such a recommendation in the course of deciding an appeal or complaint. The Information Commissions need to take their job of being the champions a lot more seriously in the 10th year of the implementation of the RTI Act.

Let us say, unlike past members of the CIC who boldly made recommendations to a public authority under Section 25(5) what remedy does a citizen have when aggrieved by a Rule made by the Chief Justice? He/she cannot go to Parliament. The only option is to file a petition before - yes the very same High Court which notified the offending RTI Rules in the first place. How does this compulsion augur for the entire system of checks and balances on which our democratic governance is hinged? What happens to the principle- nemo judex in causa sua (=no one shall be a judge in his own case)?

A possible solution
There are some renowned RTI activists who would like Section 28 deleted and Section 27 amended to give only the Central Government the power to make Rules for all public authorities across the country. I do not subscribe to this view as I believe competent authorities must have the responsibility to monitor the implementation of the RTI Act in their jurisdictions. The Central Government cannot do this for the entire country at all levels. However the practise of subjecting all RTI Rules made by competent authorities to Parliamentary or Legislative scrutiny must be developed. This may also require some amendment of the RTI Act, but in my humble opinion it would not be a retrograde measure. Instead it would reinforce the system of checks and balances in the implementation of the RTI Act.

Agenda Items of Union Cabinet Meetings
On a parting note, the items placed on the agenda of the meting of the Union Cabinet since the new Government took over in Delhi until the first week of August are in the 2nd attachment. This RTI application is now transferred to several Departments and Ministries for their reply to query #2 in the RTI application. I will keep you posted on further developments.
Please circulate this email widely.

In order to access our previous email alerts on RTI and related issues please click on: http://www.humanrightsinitiative.org/index.php?option=com_content&view=article&id=65&Itemid=84  You will find the links at the top of this web page. If you do not wish to receive these email alerts please send an email to this address indicating your refusal.
Thanks
Venkatesh Nayak
Programme Coordinator
Access to Information Programme
Commonwealth Human Rights Initiative
B-117, 1st Floor, Sarvodaya Enclave
New Delhi- 110 017
Tel: +91-11-43120201/ 43180215
Fax: +91-11-26864688




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What the deity grants, the priest denies: The strange attitude of the Hon'ble Madras High Court's Registry towards the RTI Act [3 Attachments]

Dear all,
The RTI fraternity is abuzz with heated discussions around the recent judgement of the Hon'ble Madras High Court holding that a citizen must explain his/her reasons for seeking information under the Right to Information Act, 2005 (RTI Act) . Whether the Hon'ble Court wanted this norm to apply to people seeking information from its Registry or from all public authorities covered by the RTI Act is not clear. However the Court's Cause List for 23rd September listed this matter for suo motu review by the Court. I thank renowned RTI activist Mr. C J Karira for alerting me to this development. There are news reports today that some offending portions of the judgement have been deleted.  However the Court's website continues to display the text of the 17th September judgement without any changes (1st attachment). This is not an isolated trend. The Registry of the Madras High Court has been curtailing the transparency regime bit by bit.

Madras High Court amended RTI Fee Rules in a Retrograde Manner
In April this year the Registrar General of the Madras High Court caused a Gazette notification to be issued, informing the people that the Rules for prescribing fee for supply of information had been amended (2nd attachment). Readers may recollect that the Chief Justice of every High Court is the competent authority to make Rules for implementing the RTI Act within the jurisdiction of that High Court. These Rules were required to be notified within 120 days of the enforcement of the RTI Act. i.e., by 12th October. The Madras High Court Right to Information (Fee and Cost Regulation) Rules were made in 2007 they were notified in May 2008 - three years and nine days after Parliament passed the RTI Act (see: http://www.hcmadras.tn.nic.in/rtia.pdf). Rule 4 covered only copies of judgements, orders, statements and reports generated by the Court including its Bench at Madurai. There was no mention of the charges applicable for seeking other kinds of information generated by the administrative side of the Court. Rule 4 also made it compulsory for an applicant to submit a lump sum of Rs. 100/- along with the application fee of Rs. 10/- towards cost of providing the information. The Public Information Officer was empowered to collect more money if the costs exceeded Rs. 100/-

The April 2014 amendment extends Rule 4 to all kinds of information generated by the administrative side of the High Court. Now the requirement of paying Rs. 100 towards cost of supplying information is made applicable to all information generated by the administrative side of the court. The Public Information Officer may charge additional fee if the cost exceeds Rs. 100/- However a citizen is barred from seeking information about the judicial side of the Court under the RTI Act. The amended Rule states that requests for copies of judicial records must be made under Madras High Court Original Side Rules and the Madras High Court Appellate Side Rules and fees chargeable under those Rules will apply to requests for all copies of judicial records including judgements orders, decree and other related documents.

An assessment of the amendment: 
The Madras High Court Appellate Side Rules were amended in 2010 in a positive manner. Thanks to this amendment any person who is a stranger to a case before or decided by the Court could seek copies of all judicial records without having to file an affidavit justifying why he/she wanted the information (Order XII, Rules 3). However the Madras High Court Original Side Rules continue to require a stranger to a case to submit an affidavit explaining why he/she wants the information to the satisfaction of the Court (Order X, Rule 3). So when read with the RTI Rules amended in April 2014 the following scheme of access to information emerges:

1) While the amended RTI Rules will cover the information held by the administrative side of the Court, the applicant has to pay Rs. 100 even if the information he/she seeks is less than 10 pages long. This is a complete violation of Section 7(3) of the RTI Act which states that additional fee will be charged only on the basis of actual calculation of the cost of reproducing the information (photocopies or electronic copies). The Central Information Commission (CIC) ruled on this matter in October 2009 stating that only copying charges may be collected under Section 7(3) and no other charges may be imposed on an applicant (3rd attachment). The amended Rules are clearly in violation of the letter and spirit of the RTI Act and it must be said with the greatest respect to the wisdom of the Madras High Court, that they may amount to abuse of the rule-making power. Section 28(1) of the RTI Act clearly says that Rules may be made by the Competent authority to carry out its provisions. Conversely, Rules must not be made in a manner that frustrates the very scheme and intention of the RTI Act.

2) By prohibiting the citizen from seeking information about judicial records under the RTI Act, the Madras High Court has in fact created a new exemption to disclosure without having the competence to do so. The definition of the term 'information' in Section 2(f) does not carve out an exception for judicial records. So judicial records are very much a part of the information held in material form by the Court or its Registry. Nor is there any exemption elsewhere in the RTI Act that empowers any authority to completely insulate any category of records from the RTI Act. 

Further, if the Rules remain unchallenged a decision of the Registrar in refusing access to copies of judicial records cannot be appealed before the State Information Commission (or the Central Information Commission - because even the CIC has been hearing 2nd appeal cases against High courts under the RTI Act). Also, penalty cannot be imposed for denying access to information without food reason under the RTI Act. So the Registrar of the Madras High Court will be the final arbiter whether to provide access to copies of judicial records or not and can escape any penalty for unreasonably refusing access to copies of judicial records. This is not the intention of Parliament at all when it laid down the contours of the transparency regime through the RTI Act.

3) When a stranger to a case seeks information contained in judicial records generated under the Original Jurisdiction (and not Appellate Jurisdiction) of the Madras High Court, he/she is required to explain the reasons for seeking the information. This is a clear contravention of Section 6(2) of the RTI Act which prohibits a public authority from demanding from an RTI applicant his/her reasons for seeking information. So when two options are available for a citizen - namely the Court's own Rules and the RTI Act, why should a citizen not choose an option he/she most prefers? As the guardian of people's fundamental right to free speech and expression under Art. 19(1)(a) of the Constitution, can the Madras High Court insist that a request for information be made only under their Rules and not under RTI? This in my humble opinion amounts to restricting the freedom of a citizen to freely express his choice of seeking information through the route that he/she finds most convenient.

Many lawyers and experts argue that court records are public records and any person may access them upon making a simple application with court fee stamp attached (without any knowledge of how much fees is required to be paid). The Hon'ble Supreme Court also says so when strangers to a case seek information about judicial records it holds, they must do so under the Court Rules and not under the RTI Act. In June 2014 I sought copies of interim reports submitted to the Apex Court  by a committee appointed by the Court to assist in the sex-workers rehabilitation matter. I am still waiting for a reply after three months.

More importantly, the Hon'ble Supreme Court ruled in the matter of Central Board of Education and Anr. vs. Aditya Bandopadhyaya and Ors [(2011) 8SCC497] that by virtue of Section 22, the RTI Act prevails over all other laws, byelaws and Rules. A Division Bench of the Rajasthan High Court followed this ratio in Alka Matoria vs Maharaja Ganga Singh University and Ors. [AIR 2013 Raj1 26] in 2012 and struck down the Respondent University's Rule charging Rs. 1000 per page for allowing inspection of a student's evaluated answer book. More recently, in the matter of Paras Jain vs Institute of Company Secretaries of India [LPA 275/2014], a Division Bench of the Delhi High Court quashed the Respondent's guidelines charging Rs. 500 for giving a copy of the answerbook to an examinee. In both Rajasthan and Delhi the High Courts ruled that RTI Fee rules must be applicable when a request fro information is made under the RTI Act.

So the ratio laid down by these two High Courts is very clear. No rules, byelaws or guidelines may contravene the RTI Act or RTI Rules. If a request for information is made under the RTI Act, RTI fee Rules and the prescribed Rates should apply. It is not open for any Court to bar access to judicial records as that would amount to taking on the role of Parliament to create additional exemptions. Such principles must apply not only to other public authorities, but also to the Courts' own Registries. If a different principle is held to be applicable that would amount to arbitrariness and a violation of Article 14 and the concept of rule of law that underpins our democratic polity.

Lastly, the amended Rules say" The Chief Justice is pleased to make the following amendments...". This implies that the Chief Justice had applied his mind to the proposal for amending the RTI Rules before approving it. If that is indeed the case, the Registry of the Madras High Court has a duty under Sections 4(1)(c) and (d) of the RTI Act to give reasons for these decisions and place all facts and figures including file notings that form the basis of these amendments.  Merely deleting a portion from the September 17th judgement, will not rectify the situation as far as people's access to records from the Madras High Court are concerned. Those Rules will have to be amended in tune with the letter and the spirit of the RTI Act.

Denying the convenience created by Parliament to citizens for seeking information is like the priest denying what the deity grants- no offence meant to the dignity of the wisdom of any Court. 

Please circulate this email widely.

In order to access our previous email alerts on RTI and related issues please click on: http://www.humanrightsinitiative.org/index.php?option=com_content&view=article&id=65&Itemid=84  You will find the links at the top of this web page. If you do not wish to receive these email alerts please send an email to this address indicating your refusal.
Thanks
Venkatesh Nayak
Programme Coordinator
Access to Information Programme
Commonwealth Human Rights Initiative
B-117, 1st Floor, Sarvodaya Enclave
New Delhi- 110 017
Tel: +91-11-43120201/ 43180215
Fax: +91-11-26864688




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Madras High Court rectifies its order : “No need to give any reason for requesting the information” asserts High Court in rectified order

Madras High Court  rectifies its order : “No need to give any reason  for requesting the information”
asserts High Court in rectified order

 
The Madras High Court has on 23-09-2014 (Tuesday)  rectified a portion its own order dated 18-09-14 in which
it had said that the person who seeks information under Right to Information (R.T.I.) should state the
reason for doing so.

"An applicant making a request for information shall not be required to give any reason for requesting the
information or any other personal details except those that may be necessary for contacting him," the
bench, comprising Justices N Paul Vasanthakumar and K Ravichandrababu, said on Tuesday while hearing a
sue motto review application.

The bench noticed it had made an error in its order dated 18-09-14 and rectified it on Tuesday saying Section
6(2) of the RTI Act, 2005, does not say that the person seeking information has to submit details.

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Cheers friends......its our victory as Madras High Court moves SUO MOTU REVIEW APPLICATION REV.APLW.258/2014 IN WP.26781/2013.

Bad News for the Corrupt of the nation who are in full party mood over Madras High Court judgment on RTI.

Good news for the honest.

Cheers friends......its our victory as Madras High Court moves SUO MOTU REVIEW APPLICATION REV.APLW.258/2014 IN WP.26781/2013.

Take my words,Be sure not to worry about giving reasons before filing a RTI.

The review application was listed at sl. no. 13 in court no. 3  before bench of HON'BLE MR JUSTICE N.PAUL VASANTHAKUMAR & HON'BLE MR JUSTICE K.RAVICHANDRABAABU.

Entire cause list is given below------------------->>>>>>>>>>>

HIGH COURT OF JUDICATURE AT MADRAS DAILY CAUSE LIST
(For 23rd, September, 2014 )
                COURT NO. 3          
                            HON'BLE MR JUSTICE N.PAUL VASANTHAKUMAR
                              HON'BLE MR JUSTICE K.RAVICHANDRABAABU
        TO BE HEARD ON TUESDAY THE 23rd DAY OF SEPTEMBER 2014  AT 10.30 A.M. AND AGAIN AFTER
                  DIVISION BENCH SITTING OF HON'BLE MR JUSTICE N.PAUL VASANTHAKUMAR
                              AND HON'BLE MR JUSTICE P.DEVADASS
------------------------------------------------------------------------------------------------
                & nbsp;             NO ADJOURNMENT FOR THE FIRST 25 CASES
                              ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
                                     MISCELLANEOUS PETITIONS
                                     ~~~~~~~~~~~~~~~~~~~~~~~
     &n bsp;               TO PERMIT THE PETITIONERS TO FILE A SINGLE WP SR.104706/2014

1.     MP.1/2014              M/S.R.MANICKAVEL              CHENNAI                              
       (SARFAESI)             RALPH V.MANOHARI                                   &n bsp;       
                              A.SAM ARUL PRASATH                                         
                                          WP - FOR ADMISSION
                                          ~~~~~~~~~~~~~~~~~~

2.     WP.25814/2014          M/S.P.RAMESH KUMAR            CHENNAI                              
       (SARFAESI)       &n bsp;     R.SIVARAMAN                                                

3.     WP.25833/2014          M/S.D.BASKAR                  CHENNAI                              
     &nbsp ; (Local Auth.)          R.SRINIVASALU                                              
       and                    To Dispense With
       MP.1/2014              - DO -                       
&n bsp;      and                    For Stay
       MP.2/2014              - DO -                       

4.     WP.25834/2014          M/S.P.MANI                    TIRUVANNAMALAI                       
       (Land.Ench.)   &nbsp ;       I.CHARLES                                                  
                              M.MAHALAKSHMI                                                      and                    For Injunction
       MP.1/2014              - DO -                       

5.     WP.25848/2014          M/S.A.KALAIVANAN              TIRUPPUR                      & nbsp;      
       (SARFAESI)             R.SRINIVASAN                                               
       and                    For Stay
       MP.1/2014              - DO -             &nbsp ;         

6.     WP.25849/2014          M/S.C.CHOKKALINGAM            TIRUVALLUR                           
       (Land.Ench.)           C.MANICKAM                                                 
  &n bsp;                           C.SARAVANAN                                                
       and                    For Direction
       MP.1/2014              - DO -                       

7.     WP.25858/2014          M/S.M.BASKAR                  CHENNAI                              
       (SARFAESI)             K.K.SENTHILVELAN                                           
         &nb sp;                    K.VIJAYAKUMAR                                              
       and                    To Dispense With
       MP.1/2014              - DO -                       
&n bsp;      and                    For Stay
       MP.2/2014              - DO -                       

8.     WP.25866/2014          M/S.L.MOULI                   COIMBATORE                           
       (Local Auth.)                                                                     
       and                    For Stay
       MP.1/2014              - DO -      &nbs p;                

9.     WP.25871/2014          M/S.L.CHANDRAKUMAR            CHENNAI                              
       (Local Auth.)          K.G.SENTHILKUMAR                                           
                              KAMAL HASSAN                                               
       and                    For Injunction
       MP.1/2014          & nbsp;   - DO -                       

10.    WP.25913/2014          M/S.V.CHINNASAMY              COIMBATORE                           
       (Land.Ench.)           P.PAUL PRAKASH                                          &nb sp;  

11.    WP.25923/2014          M/S.A.MUTHUKUMAR              COIMBATORE                           
       (Local Auth.)          P.SRIVIDHYA                                                
             &nbs p;                V.SUNDAR                                                   
       and                    For Stay
       MP.1/2014              - DO -                       

12.    WP.25924/2014          M/S.N.V.S. AND ASSOCIATES     CHENNAI                              
       (DRT)                                                                             
    &nb sp;  and                    To Dispense With
       MP.1/2014              - DO -                       
       and                    For Stay
       MP.2/2014              - DO -                       
                                 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
                                 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
                                 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

13.    REV.APLW.25 8/2014       SUO MOTU REV.APPLICATION
       IN
       WP.26781/2013
                                     MISCELLANEOUS PETITIONS
                                     ~~~~~~~~~~~~~~~~~~~~~~~
                              TO CONDONE THE DELA Y OF 8 DAYS IN FILING THE
                              REV.APPL.SR.69597/2014 IN WA.434/2014

14.    MP.1/2014              M/S.K.RAJA                    CHENNAI                              
              &nbsp ;               S.GAJENDRARAJ                                              
                              N.SURESH                                                  &nbs p;
       IN                    
       REV.APPL.SR69597/2014                               
       IN
       WA.434/2014                                         
 &nb sp;     (D/O.ON 10/07/2014)
       AND                    TO CONDONE THE DELAY OF 8 DAYS IN FILING THE
                              REV.APPL.SR.69598/2014 IN WA.2220/2013
       MP.1/2014              M/S.K.RAJA                    CHENNAI                    &nb sp; 
                              S.GAJENDRARAJ                                              
                              N.SURESH                                                   
       IN                    
       REV.APPL.SR69598/2014                               
  & nbsp;    IN                    
       WA.2220/2013                                        
       (D/O.ON 10/07/2014)
                              FOR STAY IN WP.16103/2014

14a.   MP.1/2014              M/S.R.SHANKAR      &n bsp;          M/S.S.SWAMINATHAN                    
       (DRAT)                 M.KRISHNAMURTHY               R.A.SRIVIDHYA FOR R............................................................
 
{ Taken From facebook wall of Sanjay Sharma }


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Posted by: urvashi sharma <rtimahilamanchup-/E1597aS9LQxFYw1CcD5bw@public.gmane.org>



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Bitter truth of Akhileshraj revealed by RTI : UP State Minorities Commission says it never studied status of minorities in UP


, TNN | Sep 17, 2014, 03.37PM IST
LUCKNOW: Will the status of cabinet minister to its chairman bring a turnaround for UP State Minorities Commission? UP governor Ram Naik has questioned the 'haste and urgency' shown by chief minister Akhilesh Yadav to accord "cabinet minister status" to the chairman of UP State Minorities Commission. Now, it's the dismal record of the commission in carrying out its duties which makes the government's favour to the head of a statutory body which is 'near-redundant' in the state even more questionable.

The commission has replied in negative to almost every RTI query on its duties and functions. It says it has no record available on the number of communal riots that have taken place in UP and has done nothing to ensure effective implementation of Sachchar committee recommendations in the state.

The state minorities commission says it has done no study to assess the progress and growth of minorities in UP, as goes the mandate. It also has not monitored if the benefits given to minorities under various laws are reaching the intended in UP. When asked to provide the list of recommendations made to the government for betterment of minorities under RTI, the commission sought 'time' to compile the information due to "dearth of staff and resources."

In between June 2009 and June 2014, commission received about 18,445 complaints but it also included grievances of the commission's own staff and its internal correspondence. In that case, to say how many of these complaints had to do with the rights and betterment of minorities in the state is not possible. The commission has meted out no (zero) punishment in the five year period, recommended no (zero) compensation, took up no (zero) complaints for case studies, did no (zero) study on educational, social and economic issues of the minorities and have no (zero) annual reports to share.

Among the many objectives of the commission, the important ones are to study and assess the growth of minorities in the state, act against any infringement of the rights of minorities and raise the matter at relevant forums, investigate and resolve any discrimination practiced against minorities besides preparing and submitting reports on difficulties faced by minorities to the state government.

RTI applicant Salim Baig who had sought the information has now written to the governor highlighting the state of the minorities commission. A single-member Minorities Commission was established in UP In 1969. Later, in 1974, Commission was constituted with equal representation from every minority group in the state. It was given statutory powers in 1994.


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Majority of the police departments are non-compliant with Sec 4 of the RTI Act, Jail Departments fare much worse in the 10th year of the RTI Act [3 Attachments]

Dear all,
CHRI presents the major findings of its quick survey of the state of compliance of police and prisons departments across the country with their obligation of proactive disclosure of information under Sections 4 of the Central Right to Information Act and the Jammu and Kashmir Right to Information Act.

An MS PowerPoint presentation of the major findings of our study is in the first attachment. A comparative chart of the status of compliance in all the States and the Union Territory of Delhi vis-a-vis the Police and Prisons Departments is in the MS Excel file in 2nd attachment. These findings were presented at the National Conference on People's Right to Information: Assessing Compliance of the Police and Prison Authorities with the Transparency Regime which was organised by CHRI in collaboration with National Law University Delhi in New Delhi on 20-12 September 2014. RTI activists, criminal law experts such as professors of criminal law, serving and retired police officers, the first Chief Information Commissioner of the Central Information Commission, the Chairperson of the Goa Police Complaints Authority, the Director General of Prosecution, Kerala, lawyers and representatives of the National Informatics Centre which is uploading open datasets about crimes and the functioning of the police, prisons and courts, participated in this two-day conference. The agenda of the conference is in the third attachment. RTI activists from 15 States across the country including far flung States of Assam and Manipur participated in the deliberations and agreed to push for greater compliance in both departments vigorously.

Even though the police and prison departments are on the list of top 5 public authorities receiving the most number of RTI applications per year - according to Annual Reports of the Information Commissions- their compliance with obligations of voluntary information disclosure  is far from satisfactory in the 10th year of the implementation of the Central RTI Act. The heads of police administrations have not paid adequate attention to embedding the regime of transparency in their jurisdictions. Innovative steps for improving transparency and people's access to information have been taken by some police and prisons departments but this is not the general trend across the country. Now that the All India Services (Conduct) Rules, 1968 have been amended to include 'transparency and accountability' as core values of the three elite civil services (IAS, IFoS and IPS - see  http://pib.nic.in/newsite/erelease.aspx?relid=108295 ), will the Indian Police Service Officers deliver on the goal of transparency that Parliament laid down in May 2005?

Please circulate this email widely.

In order to access our previous email alerts on RTI and related issues please click on: http://www.humanrightsinitiative.org/index.php?option=com_content&view=article&id=65&Itemid=84  You will find the links at the top of this web page. If you do not wish to receive these email alerts please send an email to this address indicating your refusal.
Thanks 
Venkatesh Nayak
Programme Coordinator
Access to Information Programme
Commonwealth Human Rights Initiative
B-117, 1st Floor, Sarvodaya Enclave
New Delhi- 110 017
Tel: +91-11-43120201/ 43180215
Fax: +91-11-26864688




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Had Judiciary been kept out or RTI ambit, decisions like recent Madras High Court order requiring info-seekers to give reasons to request information not been there.

Dear all.
Had  Judiciary been kept out or RTI ambit, decisions like recent Madras High Court order requiring info-seekers to give reasons to request information not been there.

While going through the said order of Madras High Court, I came to the conclusion that the order has been deliberately passed to make RTI users feel the heat of (misuse of ) powers of Indian judiciary if someone tries to poke his nose into the affairs of Judiciary.

A humble request to all RTI users, if you wish RTI regime to exist for some more time,  please refrain from filing RTIs related to India Judiciary or else such judges like Madras High Court shall do  such irreparable  harm to the transparency regime about which even the most corrupt of legislature and executive might have never dreamt of (because of pressure from civil society group) what to say of you n me.


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Posted by: urvashi sharma <rtimahilamanchup-/E1597aS9LQxFYw1CcD5bw@public.gmane.org>



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PTI / ET : Government mulling extension of e-IPO to state governments



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Government mulling extension of e-IPO to state governments

By PTI | 17 Sep, 2014, 05.32PM IST


NEW DELHI: RTI users may now use the facility of electronic postal orders, e-IPO to file their applications for seeking information from public authorities under the state governments also, if a proposal from the Centre is accepted by the states.


The Department of Personnel and Training, nodal ministry for RTI matters, has written to state governments to explore the option of providing e-IPO facility to citizens to pay the fee of their RTI application.


The facility which helped Indians living abroad to file RTI applications during e-IPO was extended to citizens residing in India on February 13, 2014. 


"Department of posts has now proposed that the feasibility of extending this facility to the state government(s) also, where IPO is one of the of the modes of payment of RTI application fee, may be explored," the DoPT wrote to all the Chief Secretaries of states recently.


RTI activist Commodore (Retd) Lokesh Batra has given number of representations for extending the facility for public authorities under state governments.


"I humbly propose Secretary (Posts) and Secretary (P) to consider extending e-IPO Facility to the states whose RTI rules permit payment of RTI fee through Indian Postal Order (IPO)," he had said in one of the communications on the issue.


The e-IPO facilitates RTI applica nts seeking information from Central Public Information Officers (CPIOs) under the RTI Act, 2005.


Debit or Credit Cards of any bank powered by Visa or Master can be used to purchase e-IPO. This facility is only for purchasing an Indian Postal Order (IPO) electronically.


An e-IPO so generated must be used only once with an RTI application. To check any multiple use of an e-IPO, the public authority shall maintain a record of those received by it.


To use the facility, a user needs to get registered at the website epostoffice.gov.in. He has to then select the ministry or department from whom he desires to seek the information under the RTI Act and the e-IPO so generated is to be used to seek information from that particular office only.


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Posted by: Lokesh Batra <batra_lokesh-/E1597aS9LQAvxtiuMwx3w@public.gmane.org>



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Protect whistleblowers coming up for air, do not drown them, because it ain't cricket

Dear all,
Once again the issue of whistleblowing on corruption and inappropriate behaviour and protection for individuals who blow the whistle is in the limelight. This, even as the Central and State Governments and the Central Vigilance Commission (CVC) drag their feet over operationalising the Whistleblowers Protection Act, 2011 enacted in May 2014. In a country where whistling and making catcalls at women are often dismissed with a wink and an uncivilised  justification - "boys will be boys", can and should whistleblowers come forward to serve the national motto 'satyameva jayate' (truth alone triumphs) by risking their lives and reputation openly? Will the administrative edifice erected over the foundation of the rule of law rise to protect them or is the foundation itself so shaky that whistleblowers will prefer the alternative of remaining silent in the face of apparent violation of the law, rules and code of ethical conduct? Should we only demand that Caesar's wife be above reproach or should we hold Caesar himself to task for his alleged misconduct? Those are the big questions at the centre of the latest controversy over the disclosure of what is alleged to be a register of visitors' entries reportedly maintained at the official residence of the Director of the Central Bureau of Investigation (CBI) - India's premier anti-corruption investigating and prosecuting agency.

Pressing for the disclosure of the identity of the whistleblower: it ain't cricket
In an age when the de facto national sport itself is often plagued by controversies of match-fixing, can anything else be expected to be a gentleman's game (with sincere apologies to all women who also play and love that sport)? After all, the concept of the rule of law that must underpin our governance structures and decision-making processes, particularly, the enforcement machinery, is a recognition of that very principle- society agrees on a set of rules to govern itself and every person is expected to abide by them for an orderly way of life. However, when a finger points to those not playing by those very rules they are meant to enforce and abide by because of their near monopoly over power, should the wrong-doing become the umpire's focus or should his/her preoccupation be about the size, shape, colour and motivation of the finger? Unlike in cricket there is no third umpire to decide this case of CBI Register-gate without fear or favour.

In its daily order dated 08 September 2014, the Hon'ble Supreme Court recorded the Petitioner Society's averment that some unknown persons came to the residence of its lawyer and handed over the original entry/guest register of the residential establishment of the CBI's Director. The Hon'ble Court directed that the said register be kept in sealed cover. (see: http://courtnic.nic.in/supremecourt/temp/ac%201066010p.txt). Yet there are umpteen media reports splashing the names of some individuals who are said to have met the CBI Director again and again over several months. These reports display scanned portions of the alleged register as proof. We have no way of ascertaining the veracity of these claims except to wait until the Court rules on the authenticity or otherwise of the alleged register. If this is the fate of the contents of a sealed cover, how much faith should be placed in its ability to protect the identity of the whistleblowing soul if its disclosure were also made mandatory, albeit in sealed cover. 

With the greatest respect to the wisdom of the Apex Court, a bigger question that all citizen-taxpayers must raise is what purpose will disclosing the identity of the whistleblower serve to the adjudication of this case? What the Apex Court said about the noble and courageous act of whistleblowing, four years ago is worth recalling here. In the matter of Indirect Tax Practitioners Association vs R K Jain [(2010) 8SCC 281] a 2-judge bench of the Apex Court recognised whistleblowing as a legitimate exercise, necessary to a democracy that is underpinned by the principle of rule of law, in the following words:

"23. At this juncture, it will be apposite to notice the growing acceptance of the phenomenon of whistleblower. A whistleblower is a person who raises a concern about wrongdoing occurring in an organization or body of people. Usually this person would be from that same organization. The revealed misconduct may be classified in many ways; for example, a violation of a law, rule, regulation and/or a direct threat to public interest, such as fraud, health/safety violations and corruption. Whistleblowers may make their allegations internally (for example, to other people within the accused organization) or externally (to regulators, law enforcement agencies, to the media or to groups concerned with the issues). Most whistleblowers are internal whistleblowers, who report misconduct on a fellow employee or superior within their company. One of the most interesting questions with respect to internal whistleblowers is why and under what circumstances people will either act on the spot to stop illegal and otherwise unacceptable behavior or report it. There is some reason to believe that people are more likely to take action with respect to unacceptable behavior, within an organization, if there are complaint systems that offer not just options dictated by the planning and controlling organization, but a choice of options for individuals, including an option that offers near absolute confidentiality. However, external whistleblowers report misconduct on outside persons or entities. In these cases, depending on the information's severity and nature, whistleblowers may report the misconduct to lawyers, the media, law enforcement or watchdog agencies, or other local, state, or federal agencies. In our view, a person like the respondent can appropriately be described as a whistleblower for the system who has tried to highlight the malfunctioning of an important institution established for dealing with cases involving revenue of the State and there is no reason to silence such person by invoking Articles 129 or 215 of the Constitution or the provisions of the Act". [emphasis supplied]


In the above case the Petitioner body- CESTAT had accused the Respondent of committing contempt by publishing articles about its poor functioning. Interestingly, the same lawyer in this case is appearing for the Petitioner society in the CBI Register-gate matter. In the 2010 case the Apex Court recognised that whistleblowers will not come forward if there are co complaint systems that offer 'near absolute confidentiality'. The Court also recognised whistleblowing to lawyers as legitimate, especially in cases where the matter is of such grave and serious nature. If the alleged diary is truly a record of the meetings of the head of CBI with persons involved in or closely related to cases that were under its investigation, what option does the individual who had access to the alleged diary have but to go to a lawyer? Under the previous regimes, two young professionals paid the price of whistleblowing against corruption with their lives when they complained to the highest office in Government. How will a sealed cover protect the identity of a whistleblower in this case is a question that we all must be asking, especially when the Whistleblower Protection Act has not been operationalised yet?


Can a whistleblower be prosecuted under the Official Secrets Act. 1923?
Section 4(1) of the Whistleblower Protection Act clearly states that irrespective of what the Official Secrets Act (OSA) says, any public servant, person or non-governmental organisation may make a complaint about corruption or willful misuse of power or discretion resulting in demonstrable loss to Government or demonstrable wrongful gain to a public servant or a third party. 'Gain' here may not necessarily be restricted to mean 'financial gain'. It could mean any kind of wrongful advantage that is demonstrable. However, in the absence of Rules to operationalise the Whistleblowers' Protection Act, the Central Vigilance Commission is unable to provide the fullest protection of the law to a whistleblower in accordance with that law. So, given this position in law that OSA is no bar on disclosing official documents along with a whistleblower complaint, it is difficult to understand why the identity of the person disclosing the alleged register is important at all? He/she cannot be prosecuted for unauthorisedly handing over official documents to persons accepted by the Court as legitimate recipients of information about wrongdoing in Government in serious and grave matters. As explained above the Apex Court has recognised that whistleblowing to a lawyer in serious matters is permitted even though the Whistleblwoers Protection Act does not permit it. The Court's position stands as law unless that judgement is recalled. So the people of India have the right to know why disclosure of the identity of the whistleblower is important, even if it be in sealed cover. Instead, it is humbly submitted that the process of verifying the identity and contents of the register must be undertaken immediately. If registers of visitors are being maintained at the official residence of the CBI's Director, it is not because the sentries at the gate have nothing better to do. If they have been instructed to maintain such a register for the purpose of security of the CBI Directors' person and residence, the CBI has a duty to make a clean breast of it and clear up the mystery whether it is a register maintained in the pursuance of an official duty.

CBI now seeks transparency after developing allergy to the RTI Act - What will GoI do?
Media reports state that the CBI demanded in its affidavit the disclosure of the whistleblower's identity when the alleged register was produced before the Apex Court. That apart, the CBI's curiosity over the whistleblower's identity is strangely in opposition to its self-confessed allergy to the idea and practice of transparency.  In 2011 the CBI successfully persuaded the then Government to exempt it from the ordinary obligations of transparency under the Right to Information Act and is now litigating before the Delhi High Court to prevent disclosure of information about allegations of corruption against its own staff. Gandhiji's sound advice- "practice what you preach" must be heeded instead of merely garlanding his statues and photos next month on his birth anniversary. But then why blame the CBI alone? The Government of Tamil Nadu was the first to push its Anti-Corruption Department and Vigilance Commission out of the ambit of the RTI Act followed by Uttar Pradesh. Both Governments stated that this measure was necessary to ensure- believe it or not - the transparent, accountable and efficient functioning of these anti-corruption bodies.

The National Democratic Alliance Government came to power in May this year with two major promises- 'sab ka saath, sab ka vikas' (with all, for the development for all). While it is engaged in major initiatives for financial inclusion, will it show its commitment to the first part of its slogan and stand by whistleblowers to start with as a measure of governance reform beyond ridding offices of old files and insisting on punctuality? The national motto - 'satyameva jayate' drawn from the Mundaka Upanishad is as Hindu as any noble principle can aspire to be. It is not an alien or western precept. Governments and their agencies have a duty to deliver on this motto. The second promise was to root out corruption and bring the guilty to book in various scams that surfaced over the last few years. Will the Government:

1) advise the CBI to withdraw its affidavit demanding disclosure of the identity of the current whistleblower and to not insist upon disclosure of the identity of any whistleblower in future?

2) amend the Whistleblower Protection Act to make disclosure of the whistleblower's identity not mandatory for receiving a complaint and operationalise it quickly?

3) take action to ensure passage of the Bill to amend the Prevention of Corruption Act, pending in the Rajya Sabha and reintroduce all the lapsed Bills which sought to make India's anti-corruption regime compliant with the requirements of the UN Convention Against Corruption? and

4) establish and constitute the Lokpal through a transparent and participatory process by appointing members who are of impeccable integrity and have proven commitment to the eradication of corruption and also make it a body competent to receive and act on whistleblower complaints like the CVC?

Please circulate this email widely.

In order to access our previous email alerts on RTI and related issues please click on: http://www.humanrightsinitiative.org/index.php?option=com_content&view=article&id=65&Itemid=84  You will find the links at the top of this web page. If you do not wish to receive these email alerts please send an email to this address indicating your refusal.
Thanks 
Venkatesh Nayak
Programme Coordinator
Access to Information Programme
Commonwealth Human Rights Initiative
B-117, 1st Floor, Sarvodaya Enclave
New Delhi- 110 017
Tel: +91-11-43120201/ 43180215
Fax: +91-11-26864688




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Posted by: Venkatesh Nayak <venkatesh-VldVBIePPc7rfyPWP6PaXg+gnn+XHhfY2LY78lusg7I@public.gmane.org>



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ANI : BJP proposes to place CBI under RTI, Politicos react




BJP proposes to place CBI under RTI, Politicos react

Sep 15, 2:15 pm


New Delhi, Sep 15 (ANI): Politicos react on Monday after BJP proposed that Central Bureau of Investigation (CBI) should be placed under Right to Information Act (RTI). BJP leader Sambit Patra said that BJP wants a corruption free and transparent CBI. Supporting Patra, party leader Subramanian Swamy said that even he believes that CBI should come under RTI although an additional condition can be placed allowing CBI to choose the ongoing cases which shouldn’t be placed under RTI. Congress leader Sandeep Dikshit said that although CBI should be transparent, but revealing details of important cases could be dangerous. Congress leader Rashid Alvi said that all the parties should be invited and a consensus should be built about placing CBI under RTI.

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Posted by: Lokesh Batra <batra_lokesh-/E1597aS9LQAvxtiuMwx3w@public.gmane.org>



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वोटिंग के दौरान सीएम अखिलेश यादव के फेसबुक स्टेटस को लेकर एक एनजीओ के निदेशक संजय शर्मा ने चुनाव आयोग से की शिकायत [1 Attachment]


वोटिंग के दौरान सीएम अखिलेश यादव के फेसबुक स्टेटस को लेकर एक एनजीओ के निदेशक संजय शर्मा ने चुनाव आयोग से शिकायत की है। शिकायती ई-मेल में कहा गया है कि सीएम ने अपने फेसबुक अकाउंट से शनिवार को दिन में 3:13 बजे सपा को वोट की अपील की। वहीं, मुख्य चुनाव अधिकारी उमेश सिन्हा ने ऐसी शिकायत मिलने से इनकार किया है।


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1 of 1 Photo(s)

Posted by: urvashi sharma <rtimahilamanchup-/E1597aS9LQxFYw1CcD5bw@public.gmane.org>



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