Ultimate victory for students: Tuesday’s Supreme Court judgment orders access of copies of answer sheets of all examinations
Vinita Deshmukh
http://moneylife.in/site/userimage/image/students-writing-exams.jpg
The apex court has ruled that evaluated answer-sheets are covered under the definition of “information” under the RTI Act. This judgment applies to all examinations including the Public Service Commissions, Universities, CBSE and other boards, professional bodies like ICAI—in fact, every examination conducted by any agency in India.
On 25th May, (Result Season: Thanks to RTI, students can now access their answer sheets) Moneylife had mentioned that though copies of answer sheets were being made available to students in several instances under the RTI (Right to Information) Act, a Supreme Court judgment was awaited in this matter.
A Kolkata student, Pritam Rooj would never have imagined that his aborted crusade of trying to procure a copy of his answer sheet from Presidency College, Calcutta University in 2007, would eventually be taken forward by two esteemed organisations in the country working for transparency-Mazdoor Kisaan Shakti Sangathan (MKSS) and Join Operation for Social Help (JOSH) to a thumping and applausive logical end.
On Tuesday, the Supreme Court gave a historic order ruling that every student of this country has the right to get a copy of his or her answer-sheet in every examination he or she sits for-be it the state board, CBSE or any competitive examination!
Here's a recap:
Kolkata student Pritam Rooj obtained 91.6% in the Class X examination and 80.8% at the Higher Secondary (Class XII) examinations. He enrolled for the mathematics honours course at Presidency College, Calcutta University. In the Part I Bachelor's degree examination, in 2005, Pritam secured 52%. The following year, he appeared for the Part II exam and got 208 marks out of a maximum 400. He was shocked to see that he got only 28 marks out of 100 in the fifth paper.
Pritam applied for re-evaluation of the paper. On re-evaluation, he received four marks more in the fifth paper and a fresh corrected mark-sheet was issued to him. However, since he did not get a first class in his Bachelor's course, he could not get admission to the Indian Institute of Science, Bengaluru.
On 14 August 2007, Pritam made a request under the RTI Act, seeking a copy of his university answer-sheet. The PIO replied: "In response to your above application I am to inform you that it has been decided that henceforth no inspection of any answer script of any examination conducted by the University shall be allowed to any applicant under the Right to Information Act, 2005. Thus we cannot entertain your application and the same is rejected."
Pritam was compelled to seek legal intervention. While the University refused to divulge information, the Calcutta High Court gave an order in Pritam's favour. In a detailed order by the Single bench of the High Court dated 3 March 2008, the Hon'ble Mr Sanjib Banerjee allowed the petition filed by Pritam Rooj and directed the University of Calcutta to disclose the answer-sheets.
This order given in favour of the student was challenged before the division bench of the Calcutta High Court by the University of Calcutta. CBSE also approached the Calcutta High Court against the order of the single bench of the Calcutta High Court allowing disclosure of the answer-sheet. The division bench of the Calcutta High Court also stood by its order.
However, on 5 February 2009, both the Calcutta University and the CBSE approached the Supreme Court. Subsequently, various other institutions conducting examinations like the Institute of Chartered Accountants of India, Assam Public Service Commission, West Bengal Board of Secondary Education, West Bengal Council for Higher Education, West Bengal Central School Service Commission and Bihar Public Service Commission also joined in and opposed the disclosure of answer-sheets to the examiners.
By this time, quite understandably, the student who triggered off this issue, Pritam Rooj, decided to give up pursuing the case at the Supreme Court. Since he did not represent to argue his case, on 3 April 2010, Human Rights Law Network (HRLN) represented by Advocate Divya Jyoti Jaipuriar filed an intervention application on behalf of the applicants MKSS and JOSH, who joined in to address this issue which concerns millions of students of the country.
The petitioners spearheaded by the representative of the Calcutta University contended in the Supreme Court that evaluated answer-sheets are not covered under the definition of the "information". They also stated that the evaluated answer-sheet is kept with the institution under "fiduciary'' capacity and that if the disclosure of the copy of the original answer sheet was allowed, the entire system will collapse.
It maybe recalled that the Karnataka Information Commission in one such case has observed as follows regarding a "fiduciary" relationship: "As may be seen, section 8 (1) (e) exempts disclosure of information available to a person in his fiduciary relationship. According to the Oxford dictionary, the word "fiduciary" means "involving trust, especially with regard to relationship between a trustee and a beneficiary".
"The fiduciary relationship for the purposes of this section would imply that the person holding the information is not the owner of the information but holds it in trust for someone else who is the owner and the beneficiary. In this case, it therefore needs to be examined whether this type of relationship exists between the authority conducting the examination and the examiners as recognized by CIC and pleaded by the Respondent.
"The relationship between the authority conducting the examination and the examiners is governed by the terms and conditions of appointment of the examiners. It is wrong to say that confidentiality should be maintained by both, of the manner and method of evaluation. Firstly, this Commission finds it difficult to endorse the general statement that the manner and method of evaluation should be kept confidential. In this Commission's view, general instructions regarding the manner and method of evaluation must be consistent and should be made known in advance to the candidates, so that they are aware as to how their answers would be evaluated. As regards "key" or "model" answers, these should also be made public after the entire process of selection is over.
"Secondly, while examiners are bound by the secrecy clause in their order of appointment, there can be no such obligation on the part of the authority conducting the examination. There is no agreement between the examiners and the authority conducting the examination that the information regarding valuation and award of marks is being held by the authority conducting the examination in trust and on behalf of the examiners. In fact, the examiner has been assigned a task and thereafter his responsibility ceases. He has no authority thereafter to claim that the answer books evaluated by him and marks awarded by him should be treated as confidential and that copies of the same should not be made available. In fact such a provision, if it was made, would be a complete antithesis of the fairness in evaluation system. This Commissioner therefore is of the view that in the fiduciary relationship between the Authority conducting the examination and the examiners, while the Authority is the owner/beneficiary of the information, the examiner is the trustee and not the other way round. The examiners have to hold the answer-scripts and the marks awarded by them as confidential, in trust for the authority conducting the examination, since they are not the owners of the information. But there is no such obligation on the authority, which in this case owns the information."
In the landmark judgment on Tuesday, the Supreme Court allowed the disclosure of the answer-sheets under the RTI Act to the examinee. The bench comprising Hon'ble Justice RV Raveendran and Hon'ble Justice AK Patnaik dismissed the petitions filed by different Public Authorities and affirmed the judgment of the Hon'ble Calcutta High Court allowing the disclosure of answer-sheets.
States a jubilant Divya Jyoti Jaipuriar, "In the order delivered yesterday, the bench clarified that the evaluated answer-sheet is covered under the definition of "information". It also clarified that it is the duty of the Public Authority to allow maximum disclosure as envisaged by the RTI Act.''
Divyapur further stated, "Dealing with the issue of "fiduciary relationship", the court has explained the fiduciary relationship in detail and held that the examination conducting bodies do not retain the evaluated answer-sheets under any fiduciary capacity. Hence, the Court held that that the exemption under section 8 (1) (e) will not apply to the disclosure of answer-sheets. The Court also dismissed the contention that the entire system will collapse once disclosure is allowed under the RTI Act. As a matter of fact, it was argued on behalf of the MKSS and JOSH that some universities allow disclosure of answer-sheets under the RTI Act and they do not face any difficulty in the process and their system have not "collapsed".''
In a press release, The National Campaign for Peoples' Right to Information (NCPRI) welcomed the landmark judgement of the Supreme Court Bench comprising Justice RV Raveendran and Justice A K Patnaik today, allowing the disclosure of the answer sheets of examinations conducted by any agency in India, under the RTI Act. The NCPRI believes this ruling would positively affect the transparency rights of lakhs of students of all kinds across the country including examinations conducted by school boards, Universities and public service commissions, and help bring about the much-needed reform in the examination system in the country. It congratulated the applicants for pursuing the matter to its logical conclusion.
This landmark judgment has also snubbed the joint decision made by the Central Information Commission (CIC) which was particularly against students appearing for CBSE. The CIC which was hearing several petitions together of students appearing for various board and competitive examinations on 23 April 2007 gave an order stating that "Before us are appeals in relation to examinations conducted by CBSE, Lok Sabha Secretariat, Jal Board, DDA and North Western Railways. Insofar as CBSE is concerned, we have held that denial of disclosure has been correctly done. In respect of the other public authorities, we are of the view that each public authority conducting examinations shall disclose the evaluated answer sheets to the applicants subject to the guidelines set forth in the preceding paragraphs. The other cases are remanded back to the concerned Information Commissioner for issuing appropriate directions taking into consideration the broader principles laid down and indicated in the preceding paragraphs. All the appeals are disposed of in the above terms. Copies of the decision be sent to all concerned free of cost."
Now, Public Information Officers and Information Commissioners will not have to abide by the joint CIC decision as the Supreme Court in one sway has allowed access to copies of answer sheets of all examinations.
(Vinita Deshmukh is a senior editor, author and convener of Pune Metro Jagruti Abhiyaan. She can be reached at vinitapune@gmail.com.)
Wednesday, August 10, 2011
Wednesday, June 8, 2011
IF IT IS BODY AND CONTROLLED BY APP.GOVT-RTI ACT IS APPLICABLE
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:05..08..2008
CORAM
HON BLE Mr.JUSTICE A.K.GANGULY, CHIEF JUSTICE
and
HON BLE Mr.JUSTICE F.M.IBRAHIM KALIFULLA
W.A.No.811 of 2008
and
M.P.No.1 of 2008
---------
Tamil Nadu Road Development Company Limited,
Rep. by its Director-in-Charge,
Sindur Panthion Plaza, II Floor,
346, Pantheon Road, Egmore,
Chennai 600 008. ..Appellant.
Vs.
1. Tamil Nadu Information Commission,
rep. by its Registrar,
Kamadhenu Super Market 1st Floor,
No.273, New No.378, Anna Salai,
Teynampet, Chennai 18.
2. Meghna Sukumar,
8/2, Dharmaraja Koil Street,
Kilpauk, Chennai 600 010. ..Respondents.
PRAYER: Appeal filed under Clause 15 of the Letters Patent
against the order of the learned single Judge dated 17.07.2008 passed in W.P.No.13416 of 2008.
----------
For Appellant :: Mr.R.Muthukumarasamy, Senior Counsel
For Mr.V.Ramajegadeesan
For Respondent 1 :: Mr.G.Rajagopalan, Senior Counsel
For M/s.S.R.Associates
For Respondent 2 :: Ms.D.Nagasila
----------
J U D G M E N T
THE HON BLE THE CHIEF JUSTICE
This writ appeal is directed against the judgment and order dated 17th July, 2008 passed by a learned Judge of the writ Court, whereby the learned Judge was pleased to dismiss the writ petition and inter alia upheld the order passed by the Tamil Nadu Information Commission dated 21.05.2008, whereby the State Commission, the first respondent herein, held that the appellant is a public authority under Section 2(h) of the Right to Information Act, 2005 (herein after referred to as the RTI Act ) and directed the appellant to furnish the required information to the second respondent.
2. The material facts of the case which are not disputed are that the second respondent in her letter dated 21.10.2007 requested the appellant to furnish the following details.
(i)Who are the contractors for constructing the IT corridor?
(ii) Copies of contract agreements with the contractors constructing the IT corridor?
(iii)Copies of documents published by TNRDC or other consultants about the IT corridor?
The appellant refused to furnish those details. The main ground of objection on which the matter was argued before us is that the appellant is not covered under the RTI Act, inasmuch as it is not a public authority within the meaning of Section 2(h) of the RTI Act. Section 2(h) of the RTI Act defines a public authority as follows:-
2(h). public authority means any authority or body or institution of self-government established or constituted
(a)by or under the Constitution;
(b)by any other law made by Parliament;
(c)by any other law made by State Legislature;
(d)by notification issued or order made by the appropriate Government,
and includes any
(i)body owned, controlled or substantially financed;
(ii)non-government organization substantially financed,
directly or indirectly by funds provided by the appropriate Government.
3. Learned counsel for the appellant submits that the order of the first respondent dated 21.05.2008 which held that the appellant is a public authority under Section 2(h) of the RTI Act is erroneous and the learned writ court by affirming the said decision committed an error of law. The said error should be corrected by this appeal Court. Learned counsel for the appellant further submitted by referring to the definition under Section 2(h) that the appellant is not established or constituted under the Constitution, by any law of the Parliament or any State Legislature, nor by any notification issued or order made by the appropriate Government. He also submitted that the appellant couldn t be included within the definition of a body owned, controlled or substantially financed, or a non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government. Learned counsel submitted that the appellant is a limited company incorporated under the provisions of the Companies Act in the year 1998 and was jointly promoted by the Tamil Nadu Industries Development Corporation (TIDCO), which is a public sector undertaking, wholly owned by the Government of Tamil Nadu, and M/s.Infrastructure Leasing and Finance Services Limited (IL&FS), which is a non-Government investment company. Thus, both TIDCO and IL&FS have equal stakes in the appellant company having 50% shares. Therefore, it would not fall within the ambit of a public authority under the provisions of Section 2(h) of the RTI Act.
4. When the matter was heard on the first day viz., 28.07.2008, this Court adjourned it to the next day and directed learned counsel for the appellant to file the Memorandum and Articles of Association of the appellant company.
5. Pursuant to such direction, the Memorandum and Articles of Association were filed before this Court. From a perusal of the said Memorandum it appears that the appellant company was incorporation on 28th May, 1998 under the Companies Act as a Public Limited Company, and thereafter, its Memorandum of Association was amended in 1999, as a result the Articles of Association of the appellant company was changed and the promoters of the company became TIDCO and IL&FS. It cannot be disputed that TIDCO is a fully owned government corporation and sofar as IL&FS is concerned its share holding is as follows:
Sino.
Shareholder
Number
%
1.
Life Insurance Corporation of India
27,986,818
26.10
2.
ORIX Corporation, Japan
25,542,452
23.82
3
Housing Development Finance Corporation Limited
14,049,500
13.10
4.
Abu Dhabi Investment Authority
10,972,278
10.23
5.
Central Bank of India
9,843,386
09.18
6.
State Bank of India
8,237,967
07.68
7.
IL&FS Employees Welfare Trust & Others
9,667,160
09.01
8.
UTI-Unit Linked Insurance Plan UTI Asset Management Co.Pvt. Ltd.
946,000
0.88
Total
107,245,561
100.00
6. From a perusal of the aforesaid share holding of IL&FS it appears that a little less than 50% of the shares are held by public sector undertakings or statutory corporation like LIC created by an Act of Parliament. It also appears that as a result of the amendment to the Articles of Association in 1999 the number of Directors of the company shall comprise two Directors nominated by TIDCO and two Directors nominated by IL&FS. It also appears from the Articles of Association, as amended, vide its Clause 118 that the Managing Director of the appellant company shall be nominated by an unanimous agreement between IL&FS and TIDCO, for such period and upon such terms as they may think fit, and the Managing Director so appointed shall exercise substantial powers of management. From Clause 113 of the Articles of Association, it further appears that all important matters must be referred to the Board and can only be effected by a resolution of the Board comprising of the affirmative votes of at least one Director representing TIDCO and one Director representing IL&FS. It is also not in dispute that the Board of Directors of the appellant company consists of the following persons:
Name/Designation Position
Mr.K.Allaudin, IAS, Chairman
Secretary (Highways) & Chairman/TNRDC
Mr.S.Ramasundaram, IAS
Chairman & Managing Director/ TIDCO Director
Mr.K.R.Viswanathan,
Director (Projects)/ TIDCO Director
Mr.Hari Sankaran,
Managing Director/IL&FS Director
Mr.Pradeep Puri Director
President & CEO/NTBCL
Mr.K.Ramchand Director
President & CEO/IL&FS Transportation
Networks Limited
Mr.N.R.Krishnan, IAS (Retd.) Director
Former Secretary/Government of India
7. It is clear from the aforesaid composition that the Chairman is the Secretary to the Government of Tamil Nadu, and out of the seven Directors two are from Indian Administrative Service and three are nominated by TIDCO, which is a Corporation wholly owned by the Government of Tamil Nadu. There is one Managing Director nominated by IL&FS. There is another Director also nominated by IL&FS. There is only one Director viz., Mr.Pradeep Puri, who is not nominated by either IL&FS or TIDCO, and Mr. N.R.Krishnan, is also a retired IAS and a former Secretary to Government of India.
8. The aforesaid composition of the Board of Directors of the appellant company makes it clear that the appellant company is a body which is controlled by the appropriate Government.
9. Now comes the question whether it is substantially financed by the government. The cost of the project, which is the subject matter of the writ petition, would be about Rs.84.41 crores, which includes the cost of construction of Toll Plaza, contingencies and supervision costs, etc. However, the land acquisition cost of Rs.43 crores has not been included in the project cost. Such cost of land acquisition has obviously been paid by the government. It appears from page 3 of the typed set of papers, which is a Governmental Order issued by the Secretary to the Government of Tamil Nadu, Highways Department, that the appellant company has estimated the project cost at Rs.84.41 crores. Out of the said project cost a sum of Rs.34 crores has been sanctioned to the project by the State Government and the same has been routed through the appellant Company so as to make the project bankable and the appellant company sourced the balance fund of Rs.50.41 crores through loans at competitive rates and tenor. The terms of the loan given by the State Government to the appellant company is to be decided later. It also appears from the said G.O. that under ASIDE Scheme, the Ministry of Commerce and Industry, Government of India has also sanctioned a sum of Rs.12.5 crores for the appellant company for this project, and therefore, the State Government s contribution would be to the tune of Rs.21.5 crores only. As such request was, therefore, made by the Secretary to Government to the CEO of the appellant company to send necessary proposal in that regard. It also appears from the said G.O. that the State Government modified the Detailed Project Report of the appellant company and the said modified report has to be brought in the Concession Agreement to be entered into by the Government with IT Expressway Ltd/appellant company. The CEO of the appellant company was requested to send the necessary draft of the Concession Agreement for the approval of the Government.
10. In the said G.O. the following directions were also given:
3. The Government direct that the Project for the Improvement of IT Corridor shall be implemented by a Special Purpose Vehicle (viz.) IT Expressway Limited (ITEL), created for this purpose.
4. The Government also direct that the proposed IT Corridor shall be extended from Siruseri to Mahabalipuram and that this portion shall be taken up as Phase II separately.
5. The Government have also decided to constitute an Empowered Committee to monitor and take appropriate decisions for the implementation of this project. Orders constituting an Empowered Committee are being issued separately.
6. The CEO, TNRDC is requested to take speedy action at every stage to implement the project early.
7. This order issues with the concurrence of Finance Department vide its U.O.No.23/ss(LK)/04, dated 23.01.2004.
11. It also appears from page 1 of the typed set that the Government of Tamil Nadu, Highways Department issued G.O.Ms.No.81 dated 24.04.2003 in this regard. The text of the said G.O. is set out below:-
ORDER:-
The Government have taken a policy decision to improve the road from Madhya Kailash in Sardar Patel Road to Siruseri in Old Mahabalipuram Road. They accordingly direct that special purpose vehicle be formed to improve the road from Madhya Kailash to Siruseri as a world class 6 lane road by mobilizing resources fro the project and to maintain the road thereafter.
2. The Chief Executive Officer, Tamil Nadu Road Development Company is requested to send necessary proposal to Government in this regard.
(By Order of the Governor)
A.NAGARAJAN
Secretary to Government
12. It is clear from the above G.O. that the appellant was implementing the said policy decision of the Government of Tamil Nadu. It is, therefore, very clear that the project of the appellant company was substantially financed by the Government. Apart from that the activities of the appellant company is substantially controlled by the government, both in the composition of the Board of Directors and also in the manner in which the Articles of Association of the appellant company has been amended, and the manner in which the said project has been implemented and monitored by the government by issuing from time to time various G.Os. referred to herein above.
13. It also appears that of the two promoters of the appellant company one (TIDCO) is fully owned government Corporation and the other IL&FS has almost 50% shareholding by the government. The Board of the directors is therefore totally controlled by these two promoters and consists of I.A.S. officers and government officials.
14. In the background of this admitted factual position, this Court is of the opinion that on a reasonable interpretation of Section 2(h) of the RTI Act, the appellant company comes within the meaning of public authority as defined by Section 2(h) of the RTI Act.
15. If we look at the definition of Section 2(h), which has been extracted herein above, it is clear that the appellant company does not come under the provisions of Section 2(h)(a)(b)(c) or (d), but thereafter Section 2(h)(d) of the definition clause uses the word includes . It is well known that when the word includes is used in an interpretation clause, it is used to enlarge the meaning of the words and phrases occurring in the body of the statute. Reference in this connection can be made to G.P.Singh s Principles of Statutory Interpretation . In the 10th Edition of the said treatise, the learned author formulated that when the word defined is declared to include such and such, the definition is prima facie extensive (page 175 of the book). In support of the aforesaid formulation, the learned author has referred to a number of decisions. The latest decision referred to in support of the aforesaid proposition was rendered in the case of Associated Indem Mechanical (P) Ltd. Vs. W.B. Small Industries Development Corporation Ltd., (2007) 3 SCC 607. At paragraph 13 page 614 & 615 of the report, the learned Judges held as follows:-
..The definition of premises in Section 2(c) uses the word includes at two places. It is well settled that the word include is generally used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute; and when it is so used those words or phrases must be construed as comprehending, not only such things, as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. (See Dadji Vs. Sukhdeobabu, (1980) 1 SCC 621; Reserve Bank of India Vs. Peerless General Finance and Investment Co. Ltd., (1987) 1 SCC 424; and Mahalakshmi Oil Mills Vs. State of A.P., (1989) 1 SCC 164.
16. Therefore, obviously the definition of bodies referred to in Section 2(h)(d)(i) of the RTI Act would receive a liberal interpretation, and here the words which fall for interpretation are the words controlled or substantially financed directly or indirectly by funds provided by the appropriate Government .
17. We are here concerned with the interpretation of the definition clause in the RTI Act. The Act has been enacted in order to promote transparency and accountability in the working of every public authority . In the preamble to the Act, it is made clear 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 . From the Preamble to the Act it is clear that revelation of information may cause conflict with the other public interests including efficient operations of the Governments, but the Act has been enacted to harmonize these conflicting interests while preserving the paramountcy of the democratic ideal.
18. The RTI Act thus attempts to inculcate openness in our democratic republic. It has to be accepted that one of the salience of openness in democracy is an access to information about the functioning of the public authorities.
19. While construing whether the Tamil Nadu Newsprint and Papers Ltd. is a public authority under Section 2(h)(d)(i) of the RTI Act, a learned Judge of this Court, while holding it a public authority made certain pertinent observations in R.Anbazhagan, Deputy Manager (Mechanical), Tamil Nadu Newsprint and Papers Ltd. Vs. The State Information Commission reported in CDJ 2008 MHC 1871. Those observations in para 13 of the judgment run as under:
Para 13. One of the objectives to this right to information is eradication of ineffective governance and corrupt governance. Corruption is now recognized as violation of human rights. Good transparency practices are essential for good governance and it includes maximum disclosure; obligation to publish; promotion of open government; limited scope of exceptions; minimum costs; processes that facilitate access; open meetings; precedence of disclosure; and protection of whistle-blowers. The civil society must be unrelenting in its efforts to ensure that the government at all levels reaches a reasonable standard in affording public information to the citizens. Sometimes even harmless information is not made available. When what is asked for is just ordinary data, data that any interested tax-paying citizen has a right to know a human right, even no national secrets that threaten public interest are asked for it is not furnished. This access to information is more vitally important in developing countries. It is very necessary that the ordinary person is enabled to participate in the processes that affect daily life and he has empowered with the information to play an effective role in policy-making and legislative decision-making. To promote broader political participation, there should be accountability and transparency of government, to prevent the criminalisation of policy, there should be free flow of information. These are the reasons why the Act came into force. The Government should have the will to make the shift from being niggardly in providing access to information. Transparency is essential for a healthy democracy and robust economy .
This Court is in respectful agreement with the aforesaid opinion expressed by the learned Judge.
20. Learned counsel for the appellant relied on a decision of the Supreme Court in the case of A.K.Bindal and another Vs. Union of India, (2003) 5 SCC 163. That was a decision as to what would mean a government company. On the legal position of a government company, it was held in that decision that the government company cannot be identified with the government itself nor its employees are government servants, and such employees are not entitled to the protection under Article 311 of the Constitution. We are not concerned with the aforesaid question at all in this case. Here we have only to consider whether in the facts and circumstances of the case the appellant company comes within the meaning of public authority as defined under Section 2(h)(d)(i) of the RTI Act. Therefore, the ratio in the aforesaid case has no application.
21. The RTI Act is virtually enacted to give effect to citizen s right to know. Citizen s right to know has been construed by the Hon ble Supreme Court as emanating from the citizen s right to freedom of speech and expression, which is a fundamental right. So, a legislation, which has been enacted to give effect to right to know, which is one of the basic human rights in today s world, must receive a purposive and broad interpretation.
22. The principle of purposive interpretation has been explained by Chief Justice S.R.Das in Bengal Immunity Co. Ltd. Vs. State of Bihar, AIR 1955 SC 661. In paragraph 22 at page 674 of the report the learned Chief Justice referred to and adopted the principles in Heydon s Case, (1584) 3 Co. Rep 7a(V). Those principles are: -
(i)What was the common law before the making of the Act.
(ii)What was the mischief and defect for which the common law did not provide.
(iii)What remedy the Parliament hath resolved and appointed to cure the disease of the common law, and
(iv)The true reason for the remedy.
If we go by the aforesaid four principles, it will appear that the constitutional principle of right to know which was virtually a common law principle of universal application was holding the field before the coming into effect of the RTI Act, inasmuch as the Hon ble Supreme Court has held that the right to know is a part of the fundamental right to speech and expression and also a part of the fundamental right to life. But, there was no well-structured
Act laying down the procedure on how to exercise one s right to know and right to information, which is why the RTI Act came into existence.
23. The RTI Act has also provided a remedy for facilitating the exercise of the right to information and the reason for the remedy is also indicated in the Preamble to the Act. So going by the direction in Heydon s Case, followed by the Supreme Court in Bengal Immunity (supra) such an Act must receive a purposive interpretation to further the purpose of the Act. So any interpretation which frustrates the purpose of RTI Act must be eschewed. Following the said well known canon of construction, this Court interprets the expression public authority under Section 2(h)(d)(i) liberally, so that the authorities like the appellant who are controlled and substantially financed, directly or indirectly, by the government, come within the purview of the RTI Act. In coming to the conclusion, this Court reminds itself of the Preamble to the RTI Act which necessitates a construction which will hopefully cleanse our democratic polity of the corrosive effect of corruption and infuse transparency in its activities. In this context, a few lines from Joseph Pulitzer, in a slightly different context, will be very apt and are reproduced hereunder.
There is not a crime, there is not a dodge, there is not a trick, there is not a swindle which does not live by secrecy. Get these things out in the open, describe them, attack them, ridicule them in the press, and sooner or later public opinion will sweep them away.
24. This Court, therefore, holds that the appellant is a public authority within the meaning of Section 2(h)(d)(i) of the RTI Act, and the learned Judge of the writ Court came to a correct conclusion, may be on the basis of some different reasons.
25. We, therefore, do not find any merit in the appeal, and accordingly it is dismissed. Consequently, connected miscellaneous petition is also dismissed. However, there will be no order as to costs.
(A.K.G., C.J.) (F.M.I.K., J.)
05 ..08..2008.
Index: Yes / No
Internet: Yes / No
sm
Copy to:-
Tamil Nadu Information Commission,
rep. by its Registrar,
Kamadhenu Super Market 1st Floor,
No.273, New No.378, Anna Salai,
Teynampet, Chennai 18.
THE HON BLE THE CHIEF JUSTICE
and
F.M.IBRAHIM KALIFULLA, J.
--------------------------------------------------
sm/
Pre Delivery Judgment
in
W.A.No.811 of 2008
DATED:05..08..2008
CORAM
HON BLE Mr.JUSTICE A.K.GANGULY, CHIEF JUSTICE
and
HON BLE Mr.JUSTICE F.M.IBRAHIM KALIFULLA
W.A.No.811 of 2008
and
M.P.No.1 of 2008
---------
Tamil Nadu Road Development Company Limited,
Rep. by its Director-in-Charge,
Sindur Panthion Plaza, II Floor,
346, Pantheon Road, Egmore,
Chennai 600 008. ..Appellant.
Vs.
1. Tamil Nadu Information Commission,
rep. by its Registrar,
Kamadhenu Super Market 1st Floor,
No.273, New No.378, Anna Salai,
Teynampet, Chennai 18.
2. Meghna Sukumar,
8/2, Dharmaraja Koil Street,
Kilpauk, Chennai 600 010. ..Respondents.
PRAYER: Appeal filed under Clause 15 of the Letters Patent
against the order of the learned single Judge dated 17.07.2008 passed in W.P.No.13416 of 2008.
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For Appellant :: Mr.R.Muthukumarasamy, Senior Counsel
For Mr.V.Ramajegadeesan
For Respondent 1 :: Mr.G.Rajagopalan, Senior Counsel
For M/s.S.R.Associates
For Respondent 2 :: Ms.D.Nagasila
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J U D G M E N T
THE HON BLE THE CHIEF JUSTICE
This writ appeal is directed against the judgment and order dated 17th July, 2008 passed by a learned Judge of the writ Court, whereby the learned Judge was pleased to dismiss the writ petition and inter alia upheld the order passed by the Tamil Nadu Information Commission dated 21.05.2008, whereby the State Commission, the first respondent herein, held that the appellant is a public authority under Section 2(h) of the Right to Information Act, 2005 (herein after referred to as the RTI Act ) and directed the appellant to furnish the required information to the second respondent.
2. The material facts of the case which are not disputed are that the second respondent in her letter dated 21.10.2007 requested the appellant to furnish the following details.
(i)Who are the contractors for constructing the IT corridor?
(ii) Copies of contract agreements with the contractors constructing the IT corridor?
(iii)Copies of documents published by TNRDC or other consultants about the IT corridor?
The appellant refused to furnish those details. The main ground of objection on which the matter was argued before us is that the appellant is not covered under the RTI Act, inasmuch as it is not a public authority within the meaning of Section 2(h) of the RTI Act. Section 2(h) of the RTI Act defines a public authority as follows:-
2(h). public authority means any authority or body or institution of self-government established or constituted
(a)by or under the Constitution;
(b)by any other law made by Parliament;
(c)by any other law made by State Legislature;
(d)by notification issued or order made by the appropriate Government,
and includes any
(i)body owned, controlled or substantially financed;
(ii)non-government organization substantially financed,
directly or indirectly by funds provided by the appropriate Government.
3. Learned counsel for the appellant submits that the order of the first respondent dated 21.05.2008 which held that the appellant is a public authority under Section 2(h) of the RTI Act is erroneous and the learned writ court by affirming the said decision committed an error of law. The said error should be corrected by this appeal Court. Learned counsel for the appellant further submitted by referring to the definition under Section 2(h) that the appellant is not established or constituted under the Constitution, by any law of the Parliament or any State Legislature, nor by any notification issued or order made by the appropriate Government. He also submitted that the appellant couldn t be included within the definition of a body owned, controlled or substantially financed, or a non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government. Learned counsel submitted that the appellant is a limited company incorporated under the provisions of the Companies Act in the year 1998 and was jointly promoted by the Tamil Nadu Industries Development Corporation (TIDCO), which is a public sector undertaking, wholly owned by the Government of Tamil Nadu, and M/s.Infrastructure Leasing and Finance Services Limited (IL&FS), which is a non-Government investment company. Thus, both TIDCO and IL&FS have equal stakes in the appellant company having 50% shares. Therefore, it would not fall within the ambit of a public authority under the provisions of Section 2(h) of the RTI Act.
4. When the matter was heard on the first day viz., 28.07.2008, this Court adjourned it to the next day and directed learned counsel for the appellant to file the Memorandum and Articles of Association of the appellant company.
5. Pursuant to such direction, the Memorandum and Articles of Association were filed before this Court. From a perusal of the said Memorandum it appears that the appellant company was incorporation on 28th May, 1998 under the Companies Act as a Public Limited Company, and thereafter, its Memorandum of Association was amended in 1999, as a result the Articles of Association of the appellant company was changed and the promoters of the company became TIDCO and IL&FS. It cannot be disputed that TIDCO is a fully owned government corporation and sofar as IL&FS is concerned its share holding is as follows:
Sino.
Shareholder
Number
%
1.
Life Insurance Corporation of India
27,986,818
26.10
2.
ORIX Corporation, Japan
25,542,452
23.82
3
Housing Development Finance Corporation Limited
14,049,500
13.10
4.
Abu Dhabi Investment Authority
10,972,278
10.23
5.
Central Bank of India
9,843,386
09.18
6.
State Bank of India
8,237,967
07.68
7.
IL&FS Employees Welfare Trust & Others
9,667,160
09.01
8.
UTI-Unit Linked Insurance Plan UTI Asset Management Co.Pvt. Ltd.
946,000
0.88
Total
107,245,561
100.00
6. From a perusal of the aforesaid share holding of IL&FS it appears that a little less than 50% of the shares are held by public sector undertakings or statutory corporation like LIC created by an Act of Parliament. It also appears that as a result of the amendment to the Articles of Association in 1999 the number of Directors of the company shall comprise two Directors nominated by TIDCO and two Directors nominated by IL&FS. It also appears from the Articles of Association, as amended, vide its Clause 118 that the Managing Director of the appellant company shall be nominated by an unanimous agreement between IL&FS and TIDCO, for such period and upon such terms as they may think fit, and the Managing Director so appointed shall exercise substantial powers of management. From Clause 113 of the Articles of Association, it further appears that all important matters must be referred to the Board and can only be effected by a resolution of the Board comprising of the affirmative votes of at least one Director representing TIDCO and one Director representing IL&FS. It is also not in dispute that the Board of Directors of the appellant company consists of the following persons:
Name/Designation Position
Mr.K.Allaudin, IAS, Chairman
Secretary (Highways) & Chairman/TNRDC
Mr.S.Ramasundaram, IAS
Chairman & Managing Director/ TIDCO Director
Mr.K.R.Viswanathan,
Director (Projects)/ TIDCO Director
Mr.Hari Sankaran,
Managing Director/IL&FS Director
Mr.Pradeep Puri Director
President & CEO/NTBCL
Mr.K.Ramchand Director
President & CEO/IL&FS Transportation
Networks Limited
Mr.N.R.Krishnan, IAS (Retd.) Director
Former Secretary/Government of India
7. It is clear from the aforesaid composition that the Chairman is the Secretary to the Government of Tamil Nadu, and out of the seven Directors two are from Indian Administrative Service and three are nominated by TIDCO, which is a Corporation wholly owned by the Government of Tamil Nadu. There is one Managing Director nominated by IL&FS. There is another Director also nominated by IL&FS. There is only one Director viz., Mr.Pradeep Puri, who is not nominated by either IL&FS or TIDCO, and Mr. N.R.Krishnan, is also a retired IAS and a former Secretary to Government of India.
8. The aforesaid composition of the Board of Directors of the appellant company makes it clear that the appellant company is a body which is controlled by the appropriate Government.
9. Now comes the question whether it is substantially financed by the government. The cost of the project, which is the subject matter of the writ petition, would be about Rs.84.41 crores, which includes the cost of construction of Toll Plaza, contingencies and supervision costs, etc. However, the land acquisition cost of Rs.43 crores has not been included in the project cost. Such cost of land acquisition has obviously been paid by the government. It appears from page 3 of the typed set of papers, which is a Governmental Order issued by the Secretary to the Government of Tamil Nadu, Highways Department, that the appellant company has estimated the project cost at Rs.84.41 crores. Out of the said project cost a sum of Rs.34 crores has been sanctioned to the project by the State Government and the same has been routed through the appellant Company so as to make the project bankable and the appellant company sourced the balance fund of Rs.50.41 crores through loans at competitive rates and tenor. The terms of the loan given by the State Government to the appellant company is to be decided later. It also appears from the said G.O. that under ASIDE Scheme, the Ministry of Commerce and Industry, Government of India has also sanctioned a sum of Rs.12.5 crores for the appellant company for this project, and therefore, the State Government s contribution would be to the tune of Rs.21.5 crores only. As such request was, therefore, made by the Secretary to Government to the CEO of the appellant company to send necessary proposal in that regard. It also appears from the said G.O. that the State Government modified the Detailed Project Report of the appellant company and the said modified report has to be brought in the Concession Agreement to be entered into by the Government with IT Expressway Ltd/appellant company. The CEO of the appellant company was requested to send the necessary draft of the Concession Agreement for the approval of the Government.
10. In the said G.O. the following directions were also given:
3. The Government direct that the Project for the Improvement of IT Corridor shall be implemented by a Special Purpose Vehicle (viz.) IT Expressway Limited (ITEL), created for this purpose.
4. The Government also direct that the proposed IT Corridor shall be extended from Siruseri to Mahabalipuram and that this portion shall be taken up as Phase II separately.
5. The Government have also decided to constitute an Empowered Committee to monitor and take appropriate decisions for the implementation of this project. Orders constituting an Empowered Committee are being issued separately.
6. The CEO, TNRDC is requested to take speedy action at every stage to implement the project early.
7. This order issues with the concurrence of Finance Department vide its U.O.No.23/ss(LK)/04, dated 23.01.2004.
11. It also appears from page 1 of the typed set that the Government of Tamil Nadu, Highways Department issued G.O.Ms.No.81 dated 24.04.2003 in this regard. The text of the said G.O. is set out below:-
ORDER:-
The Government have taken a policy decision to improve the road from Madhya Kailash in Sardar Patel Road to Siruseri in Old Mahabalipuram Road. They accordingly direct that special purpose vehicle be formed to improve the road from Madhya Kailash to Siruseri as a world class 6 lane road by mobilizing resources fro the project and to maintain the road thereafter.
2. The Chief Executive Officer, Tamil Nadu Road Development Company is requested to send necessary proposal to Government in this regard.
(By Order of the Governor)
A.NAGARAJAN
Secretary to Government
12. It is clear from the above G.O. that the appellant was implementing the said policy decision of the Government of Tamil Nadu. It is, therefore, very clear that the project of the appellant company was substantially financed by the Government. Apart from that the activities of the appellant company is substantially controlled by the government, both in the composition of the Board of Directors and also in the manner in which the Articles of Association of the appellant company has been amended, and the manner in which the said project has been implemented and monitored by the government by issuing from time to time various G.Os. referred to herein above.
13. It also appears that of the two promoters of the appellant company one (TIDCO) is fully owned government Corporation and the other IL&FS has almost 50% shareholding by the government. The Board of the directors is therefore totally controlled by these two promoters and consists of I.A.S. officers and government officials.
14. In the background of this admitted factual position, this Court is of the opinion that on a reasonable interpretation of Section 2(h) of the RTI Act, the appellant company comes within the meaning of public authority as defined by Section 2(h) of the RTI Act.
15. If we look at the definition of Section 2(h), which has been extracted herein above, it is clear that the appellant company does not come under the provisions of Section 2(h)(a)(b)(c) or (d), but thereafter Section 2(h)(d) of the definition clause uses the word includes . It is well known that when the word includes is used in an interpretation clause, it is used to enlarge the meaning of the words and phrases occurring in the body of the statute. Reference in this connection can be made to G.P.Singh s Principles of Statutory Interpretation . In the 10th Edition of the said treatise, the learned author formulated that when the word defined is declared to include such and such, the definition is prima facie extensive (page 175 of the book). In support of the aforesaid formulation, the learned author has referred to a number of decisions. The latest decision referred to in support of the aforesaid proposition was rendered in the case of Associated Indem Mechanical (P) Ltd. Vs. W.B. Small Industries Development Corporation Ltd., (2007) 3 SCC 607. At paragraph 13 page 614 & 615 of the report, the learned Judges held as follows:-
..The definition of premises in Section 2(c) uses the word includes at two places. It is well settled that the word include is generally used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute; and when it is so used those words or phrases must be construed as comprehending, not only such things, as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. (See Dadji Vs. Sukhdeobabu, (1980) 1 SCC 621; Reserve Bank of India Vs. Peerless General Finance and Investment Co. Ltd., (1987) 1 SCC 424; and Mahalakshmi Oil Mills Vs. State of A.P., (1989) 1 SCC 164.
16. Therefore, obviously the definition of bodies referred to in Section 2(h)(d)(i) of the RTI Act would receive a liberal interpretation, and here the words which fall for interpretation are the words controlled or substantially financed directly or indirectly by funds provided by the appropriate Government .
17. We are here concerned with the interpretation of the definition clause in the RTI Act. The Act has been enacted in order to promote transparency and accountability in the working of every public authority . In the preamble to the Act, it is made clear 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 . From the Preamble to the Act it is clear that revelation of information may cause conflict with the other public interests including efficient operations of the Governments, but the Act has been enacted to harmonize these conflicting interests while preserving the paramountcy of the democratic ideal.
18. The RTI Act thus attempts to inculcate openness in our democratic republic. It has to be accepted that one of the salience of openness in democracy is an access to information about the functioning of the public authorities.
19. While construing whether the Tamil Nadu Newsprint and Papers Ltd. is a public authority under Section 2(h)(d)(i) of the RTI Act, a learned Judge of this Court, while holding it a public authority made certain pertinent observations in R.Anbazhagan, Deputy Manager (Mechanical), Tamil Nadu Newsprint and Papers Ltd. Vs. The State Information Commission reported in CDJ 2008 MHC 1871. Those observations in para 13 of the judgment run as under:
Para 13. One of the objectives to this right to information is eradication of ineffective governance and corrupt governance. Corruption is now recognized as violation of human rights. Good transparency practices are essential for good governance and it includes maximum disclosure; obligation to publish; promotion of open government; limited scope of exceptions; minimum costs; processes that facilitate access; open meetings; precedence of disclosure; and protection of whistle-blowers. The civil society must be unrelenting in its efforts to ensure that the government at all levels reaches a reasonable standard in affording public information to the citizens. Sometimes even harmless information is not made available. When what is asked for is just ordinary data, data that any interested tax-paying citizen has a right to know a human right, even no national secrets that threaten public interest are asked for it is not furnished. This access to information is more vitally important in developing countries. It is very necessary that the ordinary person is enabled to participate in the processes that affect daily life and he has empowered with the information to play an effective role in policy-making and legislative decision-making. To promote broader political participation, there should be accountability and transparency of government, to prevent the criminalisation of policy, there should be free flow of information. These are the reasons why the Act came into force. The Government should have the will to make the shift from being niggardly in providing access to information. Transparency is essential for a healthy democracy and robust economy .
This Court is in respectful agreement with the aforesaid opinion expressed by the learned Judge.
20. Learned counsel for the appellant relied on a decision of the Supreme Court in the case of A.K.Bindal and another Vs. Union of India, (2003) 5 SCC 163. That was a decision as to what would mean a government company. On the legal position of a government company, it was held in that decision that the government company cannot be identified with the government itself nor its employees are government servants, and such employees are not entitled to the protection under Article 311 of the Constitution. We are not concerned with the aforesaid question at all in this case. Here we have only to consider whether in the facts and circumstances of the case the appellant company comes within the meaning of public authority as defined under Section 2(h)(d)(i) of the RTI Act. Therefore, the ratio in the aforesaid case has no application.
21. The RTI Act is virtually enacted to give effect to citizen s right to know. Citizen s right to know has been construed by the Hon ble Supreme Court as emanating from the citizen s right to freedom of speech and expression, which is a fundamental right. So, a legislation, which has been enacted to give effect to right to know, which is one of the basic human rights in today s world, must receive a purposive and broad interpretation.
22. The principle of purposive interpretation has been explained by Chief Justice S.R.Das in Bengal Immunity Co. Ltd. Vs. State of Bihar, AIR 1955 SC 661. In paragraph 22 at page 674 of the report the learned Chief Justice referred to and adopted the principles in Heydon s Case, (1584) 3 Co. Rep 7a(V). Those principles are: -
(i)What was the common law before the making of the Act.
(ii)What was the mischief and defect for which the common law did not provide.
(iii)What remedy the Parliament hath resolved and appointed to cure the disease of the common law, and
(iv)The true reason for the remedy.
If we go by the aforesaid four principles, it will appear that the constitutional principle of right to know which was virtually a common law principle of universal application was holding the field before the coming into effect of the RTI Act, inasmuch as the Hon ble Supreme Court has held that the right to know is a part of the fundamental right to speech and expression and also a part of the fundamental right to life. But, there was no well-structured
Act laying down the procedure on how to exercise one s right to know and right to information, which is why the RTI Act came into existence.
23. The RTI Act has also provided a remedy for facilitating the exercise of the right to information and the reason for the remedy is also indicated in the Preamble to the Act. So going by the direction in Heydon s Case, followed by the Supreme Court in Bengal Immunity (supra) such an Act must receive a purposive interpretation to further the purpose of the Act. So any interpretation which frustrates the purpose of RTI Act must be eschewed. Following the said well known canon of construction, this Court interprets the expression public authority under Section 2(h)(d)(i) liberally, so that the authorities like the appellant who are controlled and substantially financed, directly or indirectly, by the government, come within the purview of the RTI Act. In coming to the conclusion, this Court reminds itself of the Preamble to the RTI Act which necessitates a construction which will hopefully cleanse our democratic polity of the corrosive effect of corruption and infuse transparency in its activities. In this context, a few lines from Joseph Pulitzer, in a slightly different context, will be very apt and are reproduced hereunder.
There is not a crime, there is not a dodge, there is not a trick, there is not a swindle which does not live by secrecy. Get these things out in the open, describe them, attack them, ridicule them in the press, and sooner or later public opinion will sweep them away.
24. This Court, therefore, holds that the appellant is a public authority within the meaning of Section 2(h)(d)(i) of the RTI Act, and the learned Judge of the writ Court came to a correct conclusion, may be on the basis of some different reasons.
25. We, therefore, do not find any merit in the appeal, and accordingly it is dismissed. Consequently, connected miscellaneous petition is also dismissed. However, there will be no order as to costs.
(A.K.G., C.J.) (F.M.I.K., J.)
05 ..08..2008.
Index: Yes / No
Internet: Yes / No
sm
Copy to:-
Tamil Nadu Information Commission,
rep. by its Registrar,
Kamadhenu Super Market 1st Floor,
No.273, New No.378, Anna Salai,
Teynampet, Chennai 18.
THE HON BLE THE CHIEF JUSTICE
and
F.M.IBRAHIM KALIFULLA, J.
--------------------------------------------------
sm/
Pre Delivery Judgment
in
W.A.No.811 of 2008
Tuesday, January 25, 2011
All public interest info covered under RTI, rules Punjab and Haryana High Court
All public interest info covered under RTI, rules Punjab and Haryana High Court
In a crucial judgment, the Punjab and Haryana High Court today made it clear that "only that information is exempted, the disclosure of which, has no relationship to any public interest" from the purview of Right to Information Act. Justice MS Sullar today delivered the judgment while dismissing an appeal filed by one DP Jangra, District Food and Supplies Controller, Yamuna Nagar, Haryana. The appellant had sought quashing of an order of the Haryana State Information Commission which had allowed a petition filed by one Shamsher Singh.
In a crucial judgment, the Punjab and Haryana High Court today made it clear that "only that information is exempted, the disclosure of which, has no relationship to any public interest" from the purview of Right to Information Act. Justice MS Sullar today delivered the judgment while dismissing an appeal filed by one DP Jangra, District Food and Supplies Controller, Yamuna Nagar, Haryana. The appellant had sought quashing of an order of the Haryana State Information Commission which had allowed a petition filed by one Shamsher Singh.
Monday, December 20, 2010
SUGGESTIONS AND OBJECTIONS ON PROPOSED AMENDMENT IN RULES OF RTI ACT 2005
---------- Forwarded message ----------
From: PONNIAH ESAKKIMUTHU <pesakkimuthucitu@gmail.com>
Date: Mon, Dec 20, 2010 at 8:40 PM
Subject: SUGGESTIONS AND OBJECTIONS ON PROPOSED AMENDMENT IN RULES OF RTI ACT 2005
To: usrti-dopt@nic.in
From: PONNIAH ESAKKIMUTHU <pesakkimuthucitu@gmail.com>
Date: Mon, Dec 20, 2010 at 8:40 PM
Subject: SUGGESTIONS AND OBJECTIONS ON PROPOSED AMENDMENT IN RULES OF RTI ACT 2005
To: usrti-dopt@nic.in
Dt.20.12.10
From
P.Esakkimuthu,
RTI Activist,
17C-Masilamanipuram IInd Street,
Thoothukkudi-628008
Tamilnadu
To
Sri R.K. Girdhar
Under Secretary (RT1)
Government of India
Ministry of Personnel, Public Grievances & Pensions
Department of Personnel Training
North Block, New Delhi-110001
By Email to usrti-dopt@nic.in
Dear Sir
Sub: Amendments in Right to Information (Regulation of Fee and Cost) Rules, 2005 and the Central Information Commission (Appeal Procedure) Rules, 2005-suggestions and objections filed-reg
I am submitting the following suggestions and objections on the subject matter which may kindly be taken note of while finalizing the proposed amendments on the subject matter
4. Request for Information
The words” one subject matter and shall be limited to two hundred and fifty words, excluding the address “ is highly unwarranted and it will defeat the very purpose of the RTI Act.The Public and common man are not trained to count the words. It will be very easy to the CPIOs to reject the application if the words are more than 250 and the requested subject is more than one. The purpose of Sec 6(3) will be meaningless. This amendment would be anti-transparency, anti-accountability, anti-right to information, and hence to be dropped in all its seriousness.
5. Fees for providing information: The following amendments are unwarranted and it will defeat the very purpose of RTI Act. The CPIO will fix the cost/amount unilaterally and it will be normally supported by Appellate Authority and it will pave way for accumulations of Second Appeal before the CIC which is already loaded with heavy workload.
(a) rupees two for each page in A-3 size or smaller size paper;
(c ) actual cost or price for samples or models;
(d) for inspection of records, no fee for the first hour; and fee of rupees five for each subsequent hour (or fraction thereof);
(g) the actual amount spent by public authority on hiring a machine or any other equipment, if any, to supply information;
(h) Postal charges, in excess of rupees ten, if any, involved in supply of information
Under Rule (a) The fee for copies of document is now fixed at Rs.2/- per page.This fee is high when compared to the actual expenses incurred in this connection. Now zeroxing a page cost paise 50/- in many places and Re.1/- in some places. In some places it is less than 50 paise. Hence the Rules may be amended suitably to fix the additional fee for documents at Rs.1/- per page.
Under sub (d)-For inspection of records fee can be fixed for every completed hours and fraction thereof may be ignored.
Under (g)- actual amount spent for hiring machine or any equipment may be deleted as every public authority is provided with infrastructure meant for offices.The CPIO may resort to hiring machine wantonly under the pretext of office machine under repair thereby demand charges heavily with a view to deny the documents asked for.
Under (h), the entire postage must be born by the PA and it should not be transferred to the shoulder of the information seeker. The CPIO and FAA started charging fees for postage, the purpose of RTI Act would be defeated. It will rather discourage the information seekers on the ground of bearing postages. After all no PA is going to spend from his own pocket. It is the expenditure of the Govt/PA’s Account. This amendment would be anti-transparency, anti-accountability, anti-right to information, and hence to be dropped in all its seriousness.
6. Payment of fee: Under this rule the following words may be substituted in the place of “Provided that a public authority may accept fee by any other mode of Payment “
“Provided that a public authority shall accept fee by any other mode of Payment chosen by the applicant including Money Orders and it shall be applicable to additional fee meant for documents”
This substitution will make easy the common citizen to pay the fee as he wishes to make the RTI Act easily accessible to him
7. Appeal to the first Appellate Authority: In this rule provision to make first appeal is formulated.Rule should not circumvent the main provisio of the Act. In this rule, first appeal is provided for non-disposal of application which is in contravention of Sec 18 which provides for a complaint to the CIC for this type of non-disposal by the CPIO and to penalize the CPIO for disregarding the application seeking information. Hence the word “ or non-disposal of his application by the Central Public Information Officer within the prescribed time, “ may be deleted as it would go against the spirit of RTI Act.
Similarly no format for first appeal is warranted. It is sufficient that first appeal is made against the order of CPIO while making first appeal. Hence the word” in the format as given in the Appendix” shall be deleted as it would render difficult to common man to make appeal and the CPIO to reject the first appeal if the format is slightly different or altered.
8. Documents to accompany first appeal to the first Appellate Authority:
This is also NOT required as the FAA is an authority superior to the PIO and when the FAA is housed in the same office/building. If the FAA is located in different area , such amendment may be insisted. Hence the following amendment in the existing amendment may be made
“Every appeal made to the first Appellate Authority shall be accompanied by the following documents, if the FAA is located/housed in different area/building”
The following may be substituted in the place of “ duly authenticated and verified”
“duly self attested by the appellant”
10. Documents to accompany Appeal to Commission: In this rule The following may be substituted in the place of “ duly authenticated and verified”
“duly self attested by the appellant”
11. Admission of appeals: (1) In this rule the words “On receipt of an appeal, if the Commission is satisfied that it is a fit case for consideration, it may admit such appeal” may be deleted and the following words may be substituted
“All complaints/appeals should be admitted and disposed off on merit. Within a period of sixty days from the date of receipt”
There must be time limit for disposal of the appeal by the CIC like the time limit given to CPIO and FAA or otherwise the CIC is as on date keeping pending of cases without trial for more than one year etc. If this time limit is not provided for the CIC, the RTI Act will loose its importance, meaning, spirit and significance and the applicant will have no faith in the functioning of CIC.
12. Procedure for deciding appeals & 14. Personal presence of the appellant before the Commission &15. Presentation by the Public Authority
The appellants are now finding it very very difficult to attend the personal hearing/video conferencing. Hence the compelling the appellant for personal hearing /video conferencing must be dispensed with. Alternatively, the reply/counter of the CPIO/FAA may be obtained by the CIC and on the basis of second appeal and the reply/counter, the CIC shall pass orders on merit, after giving a chance to the appellant to offer any remarks/rejoinder to the reply/counter of CPIO/FAA within a time frame. If no reply /counter is received from the CPIO /FAA, the matter may be decided exparte. In case of penalty of whatever nature, opportunity shall be given to the CPIO/FAA as the case may be .Hence this rule may be amended as above to make the proceedings before CIC as summary proceedings unlike from the present time consuming and difficult procedures
A new rule may be added after Rule 18 as follows
Review on the order of CIC: A review of order of CIC shall lie if the order is passed by a single Information Commissioner and the review petition will be heard by more than single Information Commissioner and the appellant alone is entitled for a review
The above suggestions/objections shall be considered by the rule making authorities in the interest and well functioning of the RTI Act.
Yours truly,
P.EsakkimuthuTuesday, December 7, 2010
Put all new FIRs online: Delhi HC
Put all new FIRs online: Delhi HC
In a major move towards transparency in police functioning, the high court has directed the Delhi Police to start uploading all First Information Reports (FIRs) registered in the city onto its website within 24 hours of filing. The police are required to implement the order from February 1, 2011. The landmark order, passed by a division bench comprising Chief Justice Dipak Misra and Justice Manmohan, said it's the duty of the police to provide information and the accused does not need to move court to get a copy of an FIR. "Fair and impartial investigation is a facet of Article 21 of the Constitution and presumption as regards the innocence of an accused is a right. Therefore, a person booked under criminal law has a right to know the nature of allegations so that he can take necessary steps to safeguard his liberty," the bench said. Earlier, additional solicitor general A S Chandiok and amicus curie Arvind Nigam submitted their suggestions on the matter.
Friday, December 3, 2010
Don't reject RTI applications without prescribed fees: Govt
Don't reject RTI applications without prescribed fees: Govt
The government has asked all the ministries and departments not to reject the RTI applications which are without the prescribed application fee of Rs 10. The Department of Personnel and Training (DoPT) has asked all Central government ministries to treat such applications "sympathetically", sources said. Sources said that officials have been asked to take a sympathetic view and see if the applicant is needy by enquiring about the person, and then waive the Rs 10 application fee. However, a final decision by the concerned public information officer (PIO) will be binding. The government has also asked all the departments to use the RTI logo make the concept popular and earmark and identify PIOs and CPIOs appointed to answer the RTI applicants, sources said.
Wednesday, October 20, 2010
Open to scrutiny: A landmark ruling by the CIC
http://www.frontline.in/stories/20101022272108200.htm
ON August 30, a three-member Bench of the Central Information Commission (CIC), New Delhi, gave a ruling that has the potential to bring under public scrutiny crucial aspects of the functioning of the Central and State governments that have remained hidden from the public glare all these years. The Bench, comprising Chief Information Commissioner Wajahat Habibullah and Information Commissioners Satyananda Mishra and Deepak Sandhu, did this disposing of a complaint from Venkatesh Nayak of the Commonwealth Human Rights Initiative, New Delhi, against the Department of Personnel and Training (DoPT), Government of India.
The CIC held that exemption under Section 8(1) (i) of the Right to Information Act (RTI) would not apply to deliberations leading to the formulation of a policy framework until such time as the draft was submitted to the Cabinet Secretariat, with all its necessary attachments for submission to the Cabinet. Thus when a Cabinet note is finally approved for submission to the Cabinet through the Cabinet Secretariat, Section 8(1) (i) will apply. Once approved by the Cabinet, it will also qualify for exemption under Section 8(1) (c). The CIC also recommended that the Cabinet Secretariat consider amending its circular issued in 2002 to allow for public consultation in an appropriate form.
Under Section 8(1) (c), the governments are exempted from giving information, the disclosure of which would cause a breach of privilege of Parliament or the State legislature. Under Section 8(1) (i), there is no obligation to give any citizen Cabinet papers, including records of deliberations of the Council of Ministers and Secretaries and other officers. This section has a proviso which says that the decisions of the Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken and the matter is complete. Another proviso says that those matters that come under the exemptions specified in this section shall not be disclosed.
In March, Nayak requested the DoPT to place the draft Public Interest Disclosure and Protection of Informers (PIDPI – as the whistle-blower Bill was then called) Bill on its website. When the DoPT did not respond, he complained to the CIC against its failure to disclose proactively the contents of the Bill as required under the RTI Act. When the CIC heard his complaint on August 3, the Bill was already a part of the Cabinet note submitted to the Cabinet Secretariat by the Department. The Department took the stand that it would place the Bill on the website after the Cabinet decision and its introduction in Parliament, and until that time the government could not be said to have any policy in this matter that would warrant public disclosure.
The CIC rejected Nayak's complaint on August 3, as under the RTI Act the government is not bound to disclose information relating to Cabinet papers. But it constituted a three-member Bench to decide the question whether the government could refuse to disclose proactively draft Bills. This Bench heard the case on August 20 and gave its decision on August 30.
The process of legislation involves a number of steps, including consultation with the public. Although Members of Parliament act as lawmakers and have the legitimacy to enact laws through Parliament, their ability to influence the law-making exercise is greatly limited in practice. It is the governments that prepare and introduce Bills in Parliament and State legislatures which eventually get enacted. Members, in their individual capacity, can introduce private members' Bills, but these usually do not see the light of day in the absence of government support.
Government Bills are often rushed through with members spending less and less time discussing them because of time and other constraints. Bills are referred to standing committees for detailed examination and report, but the media are barred from reporting the proceedings of these committees, with the result that the cloak of secrecy over these Bills is ensured right from the drafting stage to their eventual enactment. No doubt, Bills are in the public domain after they are introduced in Parliament or State legislatures and the public is free to discuss them. But this phase cannot be construed as offering space for public consultation, as public opinion cannot hope to influence the government to make the required changes in the Bills once they are introduced in Parliament or the State legislatures.
The degree of public consultation over the draft Bills prepared by the government, therefore, is indicative of the government's preparedness to democratise the law-making exercise. On this, the attitudes of the governments at the Centre and in the States have not been consistent. The Central government, for instance, permits certain draft Bills to be placed in the public domain to invite suggestions and comments. But certain departments of the government do not believe in this transparency. They take shelter under Sections 8(1) (c) and 8(1) (i) of the RTI.
Proactive disclosure
Nayak's complaint against the DoPT has to be understood in the context of his similar complaint against the Delhi government, which Information Commissioner Shailesh Gandhi had disposed of on July 7. In this complaint, Nayak had sought proactive disclosure, under Section 4 (1) (c) of the RTI Act, of the contents of the draft Delhi Police (Amendment) Bill, 2010, prepared by the Government of the National Capital Territory of Delhi. When the government ignored his plea, he filed a complaint with the CIC. Following the complaint, the Delhi government placed the Bill on its website, and invited comments from the public.
In his decision, Shailesh Gandhi said: "The citizens individually are the sovereigns of the democracy and they delegate their powers in the legislature. The RTI Act has recognised this and Section 4(1) (c) is meant to ensure that the citizens would be kept informed about proposals for significant legislative and policy changes." The CIC directed the Chief Secretary of the Delhi government to develop a credible mechanism in all departments for proactive and timely disclosure of draft legislation/policies and amendments thereto or to existing laws/policies in the public domain, during the process of their formulation and before their finalisation.
The government introduced the whistle-blower Bill on August 26, while the Cabinet approved it on August 9. It claimed before the CIC that the Cabinet note annexing the draft Bill had been approved for submission to the Cabinet on August 2. This means that the government ought to have placed the draft Bill on the DoPT's website anytime before August 2, inviting comments from the public, as the draft Bill was being formulated.
Although the CIC's decision does not go into it, opinions differ on whether the governments can legitimately refuse to share the contents of a draft Bill, submitted for Cabinet's approval, until it is introduced in Parliament or in a State legislature. A draft Bill could only be an annexure to a Cabinet note. If the same Bill is already in the public domain by virtue of the requirements of proactive disclosure, the same cannot be withdrawn once it forms part of the Cabinet note. Both Nayak and Satyananda Mishra had agreed during the August 20 hearing that parliamentary privileges – which have not been codified so far – could not be the grounds for denying information about a draft Bill, but Habibullah felt parliamentary privilege would be violated if the government shared the contents of a Bill that had been approved by the Cabinet but was yet to be introduced in Parliament. This perhaps explains why the August 30 decision is silent on the question of parliamentary privilege being the grounds for not disclosing Bills approved by the Cabinet.
Nayak is optimistic. He said: "We await the government's reaction to these decisions at the systemic level. We hope the Central government will not appeal against these decisions in the Delhi High Court as no public interest is negatived by the disclosure of draft Bills. The DoPT must issue office memoranda instructing all Ministries to create mechanisms for public consultation on draft Bills before they are finalised for introduction in Parliament.
The RTI users and activists in the States could use these decisions to get their State Information Commissions to rule in favour of the disclosure of draft legislation before it is tabled in the legislature or draft rules before they are gazetted. Democracies, despite being largely representative in form, cannot shy away from public consultation."
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Sunday, October 3, 2010
Furnish details of poor patients treated in private hospitals: CIC
NEW DELHI, October 3, 2010
In order to ensure that EWS beneficiaries receive better treatment in government-aided private hospitals, the CIC has asked the DHS to disclose and upload details of poor patients on a daily basis. File photo: K. Gopinathan
The Central Information Commission has asked the Directorate of Health Services to disclose and upload details of patients being treated under the Economically Weaker Section category in private hospitals.
In order to ensure that patients under the EWS scheme received the benefit, Information Commissioner Shailesh Gandhi has directed the DHS, Delhi that it should publish the name, father’s name, address and bed number of all patients treated under the category on a day-to-day basis in all the private hospitals which have been allotted land by government at subsidised rate.
The list should be published at their website daily with effect from October 1, Mr. Gandhi said in his order.
Earlier, the DHS only disclosed the number of beds available or empty for beneficiaries of the EWS patients in private hospitals who have been allotted land by government at subsidised rate.
“How could one ensure that hospitals are actually treating the EWS citizens and not anyone who did not need it”.
With this information on the website, one could check if the hospital was in anyway falsifying its record on this matter,” Mr. Gandhi said.
The order came after a resident of Uttam Nagar, Dinesh Kaushik filed an RTI application to DHS seeking information on the matter from a private hospital here.
the hindu dt 3.10.10
Wednesday, September 22, 2010
THIRD PARTY ENTITLED TO KNOW THE MARKS OF OTHER-JUSTICE K.CHANDRU
http://judis.nic.in/chennai/qrydisp.asp?tfnm=57128
BEFORE THE
DATED: 13/09/2010
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.(MD)NO.4815 of 2008
R.Ramasamy .. Petitioner
Vs.
1.The Secretary,
Ministry of Higher Education,
Chennai.
2.The Registrar,
Chennai.
3.The Controller of Examination,
Chennai. .. Respondents
This writ petition has been preferred under Article 226 of the
Constitution of
third respondent to produce answer manuscripts of M.L. Degree exam Code Nos.PDE,
PDF exams held in December, 2007 written by the petitioner in Reg.No.0049 and to
direct to revalue the same answer papers in the court supervision and to declare
the results before the forthcoming exam on 9th and 11th June 2008.
!For Petitioner ... Mr.R.Ramasamy (Party in person)
^For Respondents ... Mr.S.C.Herold
Mr.P.Thiagarajan for RR2 and 3
- - - -
:ORDER
Heard the petitioner appearing in person, Mr.S.C.Herold Singh, learned
Government Advocate for the first respondent and Mr.P.Thiagarajan, learned
counsel for respondents 2 and 3 University.
2.The petitioner was a Post Graduate student in Law under the second
respondent University. He joined M.L. with Transfer of Properties which is an
optional subject. He wrote his final year M.L. Examination and appeared for
Public Trust and Charities (PDE) and Land Reform Laws and Leases (PDF) with
registration No.0049. But he was unsuccessful. Though he asked for photostat
copies of his answer sheets, the same were not provided. Therefore, he filed the
present writ petition, seeking for a direction to produce the answer sheets for
the examination wrote by him with code Nos.PDE and PDF for the year December,
2007. Further the court should direct the authorities to revalue the answer
sheets under the court supervision and also to declare the results before the
ensuing examination in June, 2008.
3.On notice from this court, the respondents have produced the photostat
copies of answer sheets. A counter affidavit, dated 3.7.2008 was also filed by
the second respondent. In paragraph 5 of the counter affidavit, it was averred
as follows:
"5.I submit, with regard to the averments made in Ground 3 to 6, till now there
is no provision for revaluation of M.L.Degree answer scripts in this University.
Since, in normal practice P.G. Degree answer scripts are being valued by
different Examiners (Double Valuation), the question of revaluation of answer
scripts of the P.G. Programme does not arise. However, the copies of the answer
scripts of the Petitioner, viz., (1) Public Trust and Charities (PDE) and (2)
Land Reform Laws and Leases (PDF) were forwarded to the petitioner on 07-06-2008
as per his request."
4.This court by an order, dated 15.6.2010 allowed the petitioner to write
the examination held in June, 2010 making it clear that in case he succeeds in
the writ petition, the results obtained in this writ petition will be binding on
parties.
5.After perusing the answer sheets, the petitioner has come up with
an additional affidavit, dated 6.11.2009. He had stated that for the U.G.
Course, the University has system of revaluation and there is no reason why they
should deny the petitioner's request. It was also stated that the other
universities in Tamil Nadu have adopted revaluation procedure even at the P.G.
Level. Therefore, there is nothing wrong for this court ordering revaluation. He
further submitted that he has done very well in the examination.
6.A perusal of the PDF paper shows that it has been valued by two
different examiners and after working out an average of two valuations, he had only secured 37 marks. Likewise, in PDE paper, it has been valued by two examiners and an average worked out to 28 marks. It must be noted that the petitioner had not alleged any malafide.
7.with reference to non furnishing the copies of answer sheets, the
conduct of the University cannot be appreciated and without driven the parties to approach this court, the University ought not to have given copies.
8.When a question arose whether such an information is in public domain and the persons are entitled to know the marks obtained in the answer sheets, this court vide its judgment in The Tamil Nadu Dr. Ambedkar Law University, rep.By its Registrar Vs. The Tamil Nadu State Information Commission and others reported in 2010 (1) CWC 816 has held that even under the provisions of the Right To Information Act, a third party is entitled to get such an information.
9.With reference to the prayer for revaluation, it must be stated that the petitioner had obtained marks bordering very near to pass mark. Very recently,
the Supreme Court dealt with an issue regarding the court's power in ordering revaluation, vide its judgment in H.P.Public Service Commission Vs. Mukesh Thakur and another reported in 2010 AIR SCW 3636 = 2010 (6) SCC 759. It is necessary to refer to paragraphs 24 to 26 of the said judgment which is asfollows:
"24. The issue of revaluation of answer book is no more res integra. This issue was considered at length by this Court in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth (1984(4) SCC 27), wherein this Court rejected the contention that in the absence of the provision for revaluation, a direction to this effect can be issued by the Court. The Court further held that even the policy decision incorporated in the Rules/Regulations not providing for rechecking/verification/revaluation cannot be challenged unless there are grounds to show that the policy itself is in violation of some statutory provision. The Court held as under: (SCC pp.39-40 & 42, paras 14 & 16)
"14. ? It is exclusively within the province of the legislature and its delegate
to determine, as a matter of policy, how the provisions of the statute can best
be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. ?
* * *
16. ? The Court cannot sit in judgment over the wisdom of the policy evolved by the legislature and the subordinate regulation-making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be
lacking in effectiveness and hence calling for revision and improvement. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that, in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act."
25. This view has been approved and relied upon and reiterated by this Court in Pramod Kumar Srivastava v. Bihar Public Service Commission(2004 (6) SCC 714) observing as under: (SCC pp. 717-18, para 7)
"7. ? Under the relevant rules of the Commission, there is no provision wherein a candidate may be entitled to ask for revaluation of his answer book. There is a provision for scrutiny only wherein the answer books are seen for the purpose of checking whether all the answers given by a candidate have been examined and whether there has been any mistake in the totalling of marks of each question and noting them correctly on the first cover page of the answer book. There is no dispute that after scrutiny no mistake was found in the marks awarded to the appellant in the General Science paper. In the absence of any provision for revaluation of answer books in the relevant rules, no candidate in an examination has got any right whatsoever to claim or ask for revaluation of his marks." (emphasis added)
A similar view has been reiterated in Muneeb-Ul-Rehman Haroon (Dr.) v. Govt. of
J&K State (1984(4) SCC 24), Board of Secondary Education v. Pravas Ranjan Panda(2004(13) SCC 383), Board of Secondary Education v. D. Suvankar(2007 (1) SCC 603), W.B. Council of Higher Secondary Education v. Ayan Das(2007 (8) SCC 242) and Sahiti v. Dr. N.T.R. University of Health Sciences(2009(1) SCC 599).
26. Thus, the law on the subject emerges to the effect that in the absence of
any provision under the statute or statutory rules/regulations, the Court should not generally direct revaluation."
10.In the light of the above, there is no case made out to entertain the
writ petition. Hence the writ petition will stand dismissed. However there will be no order as to costs.
vvk
To
1.The Secretary,
Ministry of Higher Education,
Chennai.
2.The Registrar,
Chennai.
3.The Controller of Examination,
Chennai.
Tuesday, September 14, 2010
“Information prior to 2005 cannot be denied”
MADURAI: The Madras High Court Bench here has rejected the argument that public authorities dealing with applications under the Right To Information (RTI) Act, 2005 were not liable to provide details related to the period before the enactment of the legislation. Dismissing a writ petition filed by a government-aided arts and science college in Tuticorin against an order passed by the State Information Commission, Justice R.S. Ramanathan said that the college could not refuse to part with details sought by an individual about its activities since 1999. The judge disagreed with the petitioner's contention that compelling an authority to part with information prior to 2005 would amount to giving retrospective effect to the Act. He said that it was a substantial legislation which recognises the right of every person to obtain information. “The purpose of enacting the legislation itself would become meaningless if the Court accepts the argument of the learned counsel for the petitioner that no information or documents earlier to 2005 can be asked for by an RTI applicant… A citizen is entitled to call for information related to any period,” the judge said. He also rejected the petitioner's other argument that the State Information Commission had violated the principles of natural justice by not giving an opportunity to the college explain its stand before directing the institution to provide information sought by the RTI applicant. The Act does not require the Commission to issue notice before ordering disclosure of information. “Further the question of violation of principles of natural justice would arise only when a person is affected by the passing of an order or any civil consequences followed by that order,” the judge added. He also held that the petitioner college, being a government aided institution, was liable to provide the information as directed by the Information Commission. |
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