CIC to seek legal sanction for its benches

CIC to seek legal sanction for its benches

NEW DELHI: The Central Information Commission plans to approach the government for amendments in Right to Information rules to give legal sanction to the benches it has constituted. The Delhi High Court had recently struck down the CIC's management rules and questioned the validity of benches constituted by the commission to hear its cases.

Sources said CIC is likely to ask DoPT for changes in RTI rules. Incidentally, the government had proposed this as part of amendments to the RTI Act. However, that is likely to be a long drawn affair as the process of consultation has not even begun.

Meanwhile, confusion prevailed in the CIC with some hearings being postponed. Chief information commissioner Wajahat Habibullah had convened a meeting of all information commissioners on Wednesday to discuss the repercussions of the HC decision where some commissioners have expressed reservations over continuing hearing of appeals.

They had said continuation of work would mean contempt of court as the decision raised a question mark over the legality of hearing process at the panel, sources said. The view did not get support of Habibullah and other members who said stopping work would not be in public interest.

At present, appeals are heard by individual commissioners or a group of commissioners in division or full bench depending on the matter.

"We have sought legal opinion on the order. I have been told that there was nothing in the order which barred hearings by individual commissioners. We will abide by the HC order and will approach the government seeking clarity on the matter but work will continue," Habibullah said.

Wajahat Habibullah Chief Information Commissioner. under siege

Wajahat Habibullah under siege

India's FoI watchdog the Central Information Commission "CIC" has decided to approach the Indian Supreme Court next week against a recent order of the Delhi High Court which has caused at least 3 of its members to inform the Chief Information Commissioner Wajahat Habibullah that they shall not be hearing cases from next week as this would amount to contempt of court.

India's federal Freedom of Information law came into effect from 13 October 2005 as the Right to Information Act and over 12,000 decisions have been delivered by the CIC. Till now usually by Information Commissioners deciding matters independently of each other, and often disagreeing with each other. With over 25,000 matters are still pending with the CIC and India's citizens are getting increasingly frustrated with the long delays of over a year for their FoI applications to be decided.

In January 2007, however, the present Solicitor General for India, Mr Gopal Subramaniam conveyed his opinion to the Commission submitting that the Central Information Commission has been defined to be a "“body“ comprising the Chief Information Commissioner and such number of Central Information Commissioners not exceeding ten, as may be deemed necessary.

The Central Information Commission as a whole, therefore, constitutes the body and it is the Central Information Commission as a whole that has been given powers under Section 18, 19 and 20 of the Act." He also submitted that this body cannot be divided and as such no single bench can take up judicial matters. Since all complaints and appeals are in the nature of quasi judicial proceedings, no decisions can, therefore, be passed by one or more members of the Commission unless it is passed by the full Bench.

Accordingly the Central Information Commission on 29.January,2007 in the case of one "Pyare Lal Verma versus Indian Railways" examined the question "Should the CIC hear and decide all appeals/complaints under the RTI Act sitting in full Bench only?" and decided in the negative. The CIC reasoned that "Although the rule-making power has been conferred on the appropriate Government under Section 27 of the Act, insofar as internal management is concerned, the Chief Information Commissioner is fully competent to frame Regulations or to lay down guidelines or issue directions as and when so required or considered necessary for management of the affairs of the Central Information Commission and with a view to ensuring that it is in a position to function autonomously without being subjected to any direction by any other authority.

The constitution of the Bench is not a part of the appeal procedure but it is a matter more connected with the internal management of the Commission and as such the rule making power conferred on the appropriate government does not in any way limit the authority of the Chief Information Commissioner to delegate powers of the Commission on an individual Information Commissioner or to a group of Information Commissioners as he thinks fit and proper for the proper performance of the functions of the Commission autonomously. The very fact that the Government has already framed the rules and that these rules did not provide for constitution of the Benches makes it very clear that these matters concerning the constitution of Benches and internal management affairs of the Commission were left to be decided by the Chief Information Commissioner. The issue is decided accordingly."

Pursuant to this decision on 13 June 2007, the CIC notified "the Central Information Commission (Management) Regulations 2007" under section 12(4) to enable it to function effectively. The provisions of these Regulations was bitterly opposed by India's RTI activists spearheaded by a former computer hacker and now India's outspoken FoI activist Sarbajit Roy.

In August 2008 Sarbajit Roy approached the CIC complaining that the Delhi Development Authority, a local body, had not complied with previous directions of the CIC of February 2006 to upload the DDA's Act and Rules on its website in terms of its statutory suo-moto disclosure obligations. On 22nd Sept 2009 a double Bench of the CIC decided to constitute a 3 member committee of outside experts to go into all aspects of servicing the RTI Act by the DDA, causing the DDA to challenge the appointment of the committee as exceeding the specific powers of the Commission conferred by the RTI Act and Rules prescribed by the appropriate Government.

The DDA also challenged the legality of internal Management Regulations framed by the Chief Information Commissioner in his independent capacity which empowered the CIC to form committees for enquiry and also the Benches of the Commissioners. This caused the Secretary of the CIC B.B Shrivastava on 16 June 2009 to request the Central Government to urgently amend the Rules to include provisions for the constitution of benches by the Chief Commissioner to get over the "difficulty of the absence of any such explicit provisions".

On 21 May 2010 the High Court at Delhi in a division bench delivered a scathing order which trashed all pretensions of CIC Wajahat Habibullah to exercise personal wide ranging powers for internal management of the Commission. In a comprehensive judgement personally directed at Mr Habibullah the Court said "this is a case where the Central Information Commission and the Chief Information Commissioner have travelled beyond their boundaries of power and have thereby transgressed the provisions of the very Act which created them.".

One of the three larger issues famed by the Court was "Whether the Chief Information Commissioner had the power to make the Central Information Commission (Management) Regulations, 2007 under Section 12(4) of the RTI Act and particularly regulations with regard to the subject matter of Chapter IV thereof, namely, 'registration, abatement or return of the appeal‘?".

This issue was decided in the negative. The court found "the impugned Regulations have purportedly been made in exercise of the powers conferred under Section 12(4) of the RTI Act. The impugned Regulations purport to be regulations for the management of the affairs‘ of the Central Information Commission so as to enable it to function effectively. However, we may observe, at the outset, that the regulations go far beyond the general superintendence, direction and management of the affairs of the Central Information Commission, which is provided for under Section 12(4) of the RTI Act."

The Court went on to hold "This power, which vests in the Chief Information Commissioner, is only limited to the affairs of the Central Information Commission and does not extend to the substantive provisions of the RTI Act. No power whatsoever has been given to the Chief Information Commissioner to impinge upon or add to or subtract from the powers and functions of the Central Information Commission as stipulated in Section 18 of the RTI Act. He cannot promulgate or prescribe any regulations which impinge on the substantive or procedural provisions stipulated under the RTI Act and the Rules competently framed thereunder.

The Chief Information Commissioner is a creature of the statute and unless the statute creating him invests him with a specific power, he cannot claim to exercise such power. The RTI Act does not confer any power upon the Chief Information Commission to make any regulations and much less regulations encroaching upon the subject matter of the rule making power of the 'appropriate‘ government under Section 27. The Central Information Commission is not a court and certainly not a body which exercises plenary jurisdiction. It does not exercise any power outside the statute.

Concerning this the Court went on to find "We would also like to point out that Section 27, which empowers the appropriate government to make rules to carry out the provisions of this Act, specifically speaks of the power to make rules with regard to the procedure to be adopted by the Central Information Commission or the State Information Commission, as the case may be, in deciding an appeal under sub-section (10) of Section 19 of the RTI Act.

This power is particularly spelt out in Section 27(2)(e) of the said Act. In exercise of this power, the Central Government, being the ?appropriate government? has, in fact, framed the rules – The Central Information Commission (Appeal Procedure) Rules, 2005. But, we find that the Chief Information Commissioner, who has arrogated to himself the power to do anything under the guise of the provisions of Section 12(4) of the said Act, has formulated the impugned Regulations which also specifically provide for 'the registration, abatement or return of appeals‘ in Chapter IV of the impugned Regulations. The procedure prescribed under the regulations, if compared with the appeal procedure prescribed under the Central Information Commission (Appeal Procedure Rules) 2005, would reveal that the same are at variance."

Concerning the constitution of Benches of the CIC, including also the single Information Commissioners listed in Regulation 13 titled 'Posting of appeal or complaint before the Information Commissioner: -', the Hon'ble Court held "No such provision has been made under these Rules."

The Court proceeded to quash the impugned Regulations as being ultra vires the Right to Information Act, 2005, a decision which has thrown the enforcement of the RTI Act into disarray. At a special meeting held on 25th May, senior Information Commissioners were openly crtical of Mr Habibullah and warned him that he alone would be responsible for any contempt of the Court's orders.

The Special Leave Petition of the CIC is expected to be listed before India's Supreme Court in the first week of June. Court insiders expect that the Supreme Court will thus get considerable leverage over the CIC in another high profile CIC decision decided by a bench of only 3 Information Commissioners which held the Chief Justice of India to be a public authority under the RTI law.

RTI amendments: A retrograde step

RTI amendments: A retrograde step

By Shashikala Sitaram

Without information, people cannot adequately exercise their rights or make choices.

The UPA government’s move to amend sections of the Right to Information Act (RTI) negates the very purpose for which the Act has been passed. One of the proposed amendments is to give immunity to the office of the Chief Justice of India from any queries under the Act. The RTI Act was passed in 2005 to cover all the departments except defence, atomic energy and all those dealing with the country’s security. That the CJI is also a public authority and therefore comes under the jurisdiction of the Act has been found unpalatable by the supreme court, within five years of its passing. The RTI Act has been considered a progressive and meaningful legislation as it brought in transition from an opaque system of governance to a transparent system: from one of ‘confidentiality is the rule and disclosure an exception’ to ‘transparency is the norm and secrecy an exception.’ This undid the culture of secrecy that was the hallmark of government functioning for over six decades. Frivolous and vexatious The UPA government also wishes to bring an amendment which allows rejection of request for information which is considered ‘frivolous and vexatious.’ This merits serious concern as it makes non-compliance easier. Information can be withheld or refused whimsically based on this exemption. The proposed amendment favours the information provider who would be only too happy to reject many of the requests on flimsy grounds. For the RTI Act to manifest its benefits, information should be viewed from both the information seeker and the providers’ angle. The amendment would demean the interests of the information seeker. The spirit of this citizen-centric legislation which brought in a paradigm shift in the citizen-government relationship is being dampened. How does one categorise information either as frivolous or vexatious is a question that begs an answer especially in view of the fact that access to quality information, in the way and form in which it is needed, is often in dearth. Even the budget data of local self-governments that are public documents are not easily available and when available, it is full of errors as seen by the study of Centre for Budget and Policy Studies, Bangalore. Many zeroes are added to the budget figures, the closing balance at the end of the financial year does not tally with the opening balance of the next financial year. All this and more, reflects the low importance given to managing information. That budget information can be used as a tool that can hold governments accountable is lost because of this attitude. The RTI law is applicable to governments at all levels, Union, state and local. Demanding the resolution of the council meetings of the urban local bodies in a few cases in Karnataka has been found to be a good measure of holding elected representatives accountable. The civil society can verify if the promises made by the councillors is fulfiled by asking for the resolutions passed at the meetings. The UPA government is proposing to bring cabinet decisions within the ambit of exemptions; this would not only remove an important area from public scrutiny but encourage the other tiers of the government to take cover under such an exemption. What seems to be lost sight of is the fact that RTI would, by itself, build informed citizenry. But then, this can happen only if it is allowed to settle down and strengthened. Without information, people cannot adequately exercise their rights or make choices. Information is an important ingredient of democracy effective. The opening lines of the Right to Information Act, 2005, states that democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold governments and their instrumentalities accountable to the governed. It is precisely for this reason that the Right to Information movement originated in a remote village in Rajasthan. The movement began as a demand for labour that rightfully belonged to the poor as designed by the food for works programme of the government of India, it led to ‘Jan Sunwais’(public hearing) which exposed corruption among officials and demand for information by the Mazdoor Kisan Sakthi Sangatan. This resulted in the national campaign for the people’s right to information and subsequently to the passing of the RTI Act. South-east Asian countries like Indonesia, which consistently rank high amongst the most corrupt nations, are struggling to place their Freedom for Information Act and are looking up to India for learning. Hopefully they don’t learn from the retreat theory that India seems to follow.

HC quashes rules framed by CIC prescribing appeal procedure

HC quashes rules framed by CIC prescribing appeal procedure

Updated on Sunday, May 23, 2010, 09:49 IST

Tags: Delhi High Court, CIC, RTI

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New Delhi: The Delhi High Court has struck down the rules framed by the Chief Information Commissioner on procedure for deciding appeals before it under the RTI, saying the CIC has no power to enact such regulations under the transparency law.

"The Chief Information Commissioner has no powers to make rules under the RTI Act. Both the 'appropriate government' and the 'competent authority' have been empowered by the Rules to make rules to carry out provisions of the Act," a bench of Justices Badar Durrez Ahmed and Veena Birbal said.

"The CIC by formulating the regulations and prescribing the procedure for deciding appeals, has clearly violated the provisions of the RTI Act," it said.

The order was passed on a plea of DDA seeking quashing of Central Information Commission (Management) Regulations, 2007 enacted by the Commissioner to decide procedure for special appeals before itself.

The court said the Act did not empower the CIC to make any regulations encroaching upon the subject matter of the rule-making power of other public bodies and the regulations had been framed in complete derogation of the provisions of the RTI Act.

While deciding on the appeal, the bench also ruled that the Commission has no mandate to appoint committee having outside members to inquire into whether public body complied with the transparency law.

Interpreting the provisions of the Act, dealing with powers and functions of the Commissions, the court said "It is apparent that the inquiry that is contemplated under the Act is an inquiry by the Information Commission itself. There is no provision for an inquiry to be conducted by any other committee for and on behalf of the Information Commission."

"There is nothing prescribed either in the Act or the Rules made thereunder, whereby the Central Information Commission could be said to have been empowered to delegate its power of inquiry to some other person or a committee of persons," it said.

Court's decision boosts Right to Information Act

Shripad Dharmadhikary

19 May 2010

The recent ruling by Chennai High Court that a PPP project falls within the scope of the RTI Act is being seen as a positive step towards ensuring accountability and transparency of the system. It gives hope for a more liberal interpretation of the law in the future.

Chennai: India's National Water Policy, adopted in 2002, says that "Private sector participation should be encouraged in planning, development and management of water resources projects ...". Among the various benefits of private participation listed is "improving ... accountability to users".

PPP project falls within the ambit of the RTI Act/ Photo credit: India Together

One of the main enablers and indicators of accountability is transparency. But promoters of privatised water (and other utility) projects are unwilling to be subject to the Right to Information Act. Their competitive interests, they claim, would be hurt by transparency, and on this count they claim exemption from RTI. Governments have also tended to nod in agreement with the promoters, rather than challenge the view closely.

With the result that the question of transparency in Public Private Partnerships landed in the courts instead. And here the demand for open-ness has met with some success. Recently, the Chennai High Court has struck a blow for transparency and accountability by bringing a PPP project under the ambit of the RTI.

The Tiruppur Water Supply Project

In 2005, India's largest privatised water supply project was launched in Tamilnadu. This was the Tiruppur Water Supply and Sewerage Project, supplying water to the large number of industrial units in the Tiruppur region in Coimbatore district, and domestic bulk water to the Tiruppur Municipality and a number of way-side villages.

The Tiruppur region in Coimbatore district in Tamilnadu is India's largest producer of cotton knitwear, and has a thriving export business. This industry is highly water intensive, and water scarcity was identified as one of the crucial problems facing the industry.

The Tiruppur project, with an outlay of Rs.1023 crores, was projected as a model PPP project since its launch. It is operated by a Special Purpose Vehicle, the New Tiruppur Area Development Corporation Limited (NTADCL), which is promoted by the Tiruppur Exporters Association and Tamilnadu Water Investment Company Ltd (TWIC). TWIC in turn is owned by the Government of Tamilnadu, and Infrastructure Leasing and Financial Services Limited.

Since the Tamilnadu government was substantially financing the NTADCL and was also giving a number of guarantees and other concessions, there should have been no doubt that the NTADCL fits this definition of a Public Authority.

As this project was being presented as a highly successful model of PPP, my colleagues at Manthan (the organisation of which I am the coordinator) decided to take a closer look. To obtain information about this project, we sought information from the NTADCL under the RTI Act in October 2007.

The NTADCL rejected this request arguing that it is not a public authority as defined by the RTI law, and hence not required to disclose the information sought. This was overturned on appeal to the State Information Commission in March 2008, which ruled that the NTADCL is indeed a public authority and should provide the information.

NTADCL, however, didn't give up its resistance; it appealed the Information Commission's ruling to the Chennai High court. This too proved futile in the end; the court's order, given on 6 April this year, upholds the SIC's view, that NTADCL should be considered a public authority, and is therefore covered by the RTI Act.

What is a Public Authority

To understand the import of this ruling, let's look at the RTI Act's provisions more closely. The term 'Public Authority' is defined in Clause 2(h) of the law passed in 2005. Apart from the obvious public sector bodies the definition "includes any - (i) body owned, controlled or substantially financed; directly or indirectly by funds provided by the appropriate Government."

Since the Tamilnadu government was substantially financing the NTADCL and was also giving a number of guarantees and other concessions, there should have been no doubt that the NTADCL fits this definition of a Public Authority. However, the NTADCL argued that out of the total equity of Rs.322.7 crores, TWIC held Rs.105 crores.

In TWIC, IL&FS held 54 per cent and the TN Government held 46 per cent, hence the contribution of the TN Government in NTADCL would be about Rs.48 crores. Counting some other contributions, the TN Government overall held 17 per cent of the equity of the project. This, the NTADCL claimed, could not be counted as "substantial" and hence, the Tiruppur project should not be considered a public authority.

"This Act authorises the Controller and Auditor General to audit receipts and expenditure of bodies or authorities substantially financed by the Union or State Revenues"

The RTI Act does not define what exactly is meant by "substantial", the Court, in its ruling, has gone into considerable detail on this. The Court makes an important observation that the term "substantially financed" must receive a liberal interpretation because any clause of the RTI Act must be interpreted in the context of its objects and reasons, which are to bring in transparency into governance. It also relies upon an earlier High Court order to state that substantial does not mean higher percentage of the amount.

It also refers to the provisions of the Controller and Auditor-General's (Duties, Powers and Conditions of Service) Act, 1971 (Central Act 56/71). This Act authorises the Controller and Auditor General to audit receipts and expenditure of bodies or authorities substantially financed by the Union or State Revenues.

Section 14(2) of the Act allows the CAG to audit any organisation (with the permission of the President or the Governor) where the Government grant or loan is more than Re.1 crore. Thus, with much more funding than this, NTADCL can be construed as substantially financed by the Government, the Order finds.

Public Service, Public Authority

However, the more important part of the Order is the one which upholds another contention - namely, that since the NTADCL, even if part private, is performing essentially a public function - of water supply, it must be open to scrutiny under the RTI Act. The Order has upheld this argument. It is worth quoting somewhat at length the Order.

The Court has said:"The issue raised herein should also be looked into from the nature of the project carried out by the petitioner company [NTADCL]. It is an admitted case that the petitioner company was engaged on a Build, Own, Operate & Transfer basis to execute water supply to Tiruppur Corporation and the other areas and also to provide for sewerage treatment system.

"Under Article 243(W), it is the responsibility of a Municipality to provide subject to the provisions of the Constitution and law made by the State legislature to have power and authority to carry out the responsibility conferred upon them including those matters listed under XII Schedule to the Constitution.

XII Schedule prescribed under Article 243(W) item 5 relates to water supply for domestic, industrial and commercial purpose. Item 6 related to public health, sanitation, conservancy and solid waste management. Therefore, the activity that is undertaken by the petitioner company is essentially a power vested on the municipal authority under Article 243(W) read with items 5 and 6 of the XII schedule to the Constitution.

"This order is important because the principles outlined in the order strengthen the arguments for all public-private-partnerships projects especially in water, health, education etc to come under the ambit of RTI"

"When a State Government instead of itself undertaking a work, if it allows an agency like the petitioner Company by substantially funding them to undertake such work which is essentially that of a municipality, no one can say that such work of the petitioner company as a private activity. On the other hand, it is very much a public activity over which public interest can generate."

The Order not only states this, but takes this to the logical conclusion saying,

"When Constitution had mandated the local bodies to discharge such functions [as water supply] and the State legislature had created a local body with the essential function of water supply and sewage treatment and if that work is entrusted to another body corporate, certainly that body corporate discharges functions akin to a local body.

Therefore, every citizen has a right to know the working of such bodies, lest they may be fleeced by such companies which until the BOOT period must explain to the people about their activities. Transparency in their functioning and the right to know by the citizen can never be curtailed on the plea of the petitioner company before the Commission."

This order is important because the principles outlined in the order strengthen the arguments for all public-private-partnerships (or privatised) projects especially in water, health, education etc to come under the ambit of RTI.

Since the NTADCL can possibly appeal this order, this may not be the last word on it. Notwithstanding this, there is little doubt that this is an important Order enhancing the transparency and accountability of Public Private Partnership projects which seem to be one of the main vehicles of infrastructure development and provision of public service being adopted by the Governments.

CIC Exceeding its power-Delhi HC

The Delhi High Court on Friday came down heavily on the Central Information Commission (CIC) and its chief on its order against the DDA Vice-Chairman after he failed to appear before it with regard to an RTI matter, saying they had exceeded their powers.

“This is a case where the Central Information Commission and Chief Information Commissioner have travelled beyond their boundaries of power and have thereby transgressed the provisions of the very Act which created them,” said a Division Bench of Justices B D Ahmed and Veena Birbal.

The Bench set aside the CIC’s September 2009 order against the senior-most officer of Delhi Development Authority (DDA) and said “no adverse inference could have been drawn for the absence of Vice-Chairman, DDA.”

The Bench said CIC “is a creature of the statute and its powers and functions are circumscribed by the statute.”

It could call any person to be present in the hearing before it for the purposes of giving evidence—oral or written or for producing any document.

“The Vice-Chairman, DDA was not summoned for either giving oral evidence or written evidence or to produce any document or things in his possession. He was directed to be present for other reason, that power is not there with the CIC,” the Court added.

The Court also set aside the Commission’s order appointing an enquiry committee to go into the details of servicing of the RTI Act by all wings and sections of DDA.

On September 22 last year, the CIC had formed the Committee comprising Director Ministry of Urban Development Shujata Chaturvedi, Dunu Roy from Hazards Centre and Pankaj KP Shreyaskar, Joint Registrar, and sought a report within 45 working days from the date of order.

The CIC order had come after Secretary DDA V M Bansal was not able to clarify various points raised by the Commission while hearing the plea of an RTI applicant Sarbajit Roy who had complained of poor implementation of RTI Act at the Authority.

The Hindu dated 21,5,10