project
TRANSCRIPT
PROJECT ON
CHALLANGES FACED BY RIGHT TO INFORMATION AND
BETTER IMPLIMENTATION BY PSUs
A Part of Summer Internship Programme
(May-June 2010)
To be submitted at ONGC Delhi
By,
VAIBHAV SHUKLA
3rd Year of BSLLLB
ILS LAW COLLGE PUNE MAHARASHTRA
.
ACKNOWLEDGEMENT
I would like to thank Corporate Law Department, ONGC, for providing me with the opportunity to work as an internee for the summer internship programme. Several people have been instrumental in allowing this project report to be completed. I am extremely thankful to Mr. J.K.Bodha, GM Legal Dept. who was the real inspiration behind this project.
My Sincere gratitude to Mr. Inamul Islam, who is the driving force and motivation behind the project. Also, Ms Nidhi Joshi, Mr. Shobit Sengar and Mr Pranay Chaturvedi, for helping me in knowing the mechanism of ONGC. Last but not the least I would like to thank all the members of the Corporate Law Dept., ONGC for the knowledge, cooperation and guidance throughout, which in my opinion will go a long way in crafting my future in legal field. I am highly indebted to all.
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DECLARATION
It is hereby declared that the text reported in this Project is the outcome of
my own efforts and no part of this report has been copied in any
unauthorized manner and no part in it has been incorporated without due
acknowledgement.
VAIBHAV SHUKLA
IIIrd year BSLLLB
ILS LAW COLLEGE
PUNE MAHARASHTRA.
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TABLE OF CONTENTS:
A. INTRODUCTION
A.1 MEANING AND DEFINITION
A.2 CONSTITUTIONAL ASPECT
A.3 NEED FOR RTI
A.4 RTI IN OTHER COUNTRIES
A.5 LANDMARK JUDGEMENT
B. RELEVENT PROVISIONS
B.1 Sec 2(h)"public authority" means.
B.2 Sec 4 obligations of public authorities.
B.3 Exemption clause sec 8 in RTI.
C. Proposed amendments regarding disclosure of ‘filenotings’ and
‘Cabinet papers’, How far valid.
D. PSUs want to be out of RTI Act purview.
E. RTI AND PUBLIC PRIVATE PARTNERSHIP PROJECTS.
F. BETTER IMPLIMENTATION BY PSUs WITH THE HELP OF
INFORMATION & COMMUNICATION TECHNOLOGY.
G. CONCLUSION
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A. INTRODUCTION
Constitution of India provides for Fundamental right of Freedom of speech and
expression. If we do not have any information on how our Government and Public
Institution works, we can not express any informed opinion on it. This fact lays down
foundation of Right to Information. So Right to information is recognized by our
Constitution it self as a fundamental Right. Article 19 (1) says that every citizen has
freedom of speech and expression. As early as in 1976, the Supreme Court said in the
case of Raj Narain vs State of UP, “people cannot speak or express themselves unless
they know.” Mahatma Gandhi said “Real Swaraj will not come by acquisition of
authority by few but by acquisition of capacity to resist authority when abused.”
Right to information now empowers citizen of India to do that. Informed citizen is
main reason for primacy of well established concept of freedom of press and it clearly
flows from the same that citizens right to know is of paramount importance. Since the
Government is run on behalf of people, they are rightful owner of right to be
informed directly.
Mazdoor Kisan Shakti Sangathan (MKSS) in the rural areas of
Rajasthan first brought RTI on the agenda of the nation. On 11 and 12 May, 2005, the
two houses of Parliament passed the Right to Information Act. This has now become
operational from 12 October, 2005. Right to Information (RTI) existed since the day
the Constitution of India was framed. The present Act only gives procedures.
An Act to provide for setting out the practical regime of right to
information for citizens to secure access to information under the control of public
authorities, in order to promote transparency and accountability in the working of
every public authority.
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A.1 MEANING AND DEFINITION:
Sec 2(f) of the Act defines it thus: .
(f) "information" means any material in any form, including records, documents, memos,
e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports,
papers, samples, models, data material held in any electronic form and information
relating to any private body which can be accessed by a public authority under any other
law for the time being in force;
Right to information is defined under Section 2(j) as: "right to information" means the
right to information accessible under this.
Act which is held by or under the control of any public authority and includes the right
to:- .
(i) inspection of work, documents, records; .
(ii) taking notes, extracts, or certified copies of documents or records. .
(iii) taking certified samples of material; .
(iv) obtaining information in the form of diskettes, floppies. tapes, video cassettes or in
any other electronic mode or through printouts where such information is stored in a
computer or in any other device; ‘ Information can be demanded from all Public
authorities, ie. all Govt. bodies and organizations substantially financed by Government
including NGOs.
CONSTITUTIONAL ASPECT OF RTI
The prerequisite for enjoying right to freedom of speech and expression is knowledge and
information. The absence of authentic information on matters of public interest will only
encourage wild rumors and speculations and avoidable allegations against individuals and
institutions. Therefore, the Right to Information becomes a constitutional right, This will
also help the citizens perform their fundamental duties as set out in Article 51A of the
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Constitution. A fully informed citizen will certainly be better equipped for the
performance of these duties.
A.3 NEED FOR RTI
This right The Right to Information has already received judicial recognition as a part of
the fundamental right to free speech and expression. An Act is needed to provide a
statutory frame work for this right. This law will lay down the procedure for translating it
into reality.
A.4 RTI IN OTHER COUNTRIES
In recent years, many Commonwealth countries like Canada, Australia, and New Zealand
have passed laws providing for the right of access to administrative information. USA,
France and Scandinavian countries have also passed similar laws. US Freedom of
Information Act ensures openness in administration by enabling the public to demand
information about issues as varied as deteriorating civic amenities, assets of senators and
utilization of public funds. .
Similar trends are seen in the developing countries as well. The new South Africa
Constitution specifically provides the Right to Information in its Bill of Rights--thus
giving it an explicit constitutional status. Malaysia operates an on-line data base system
known as Civil Services Link, through which a person can access information regarding
functioning of public administration. There is thus a global sweep of change towards
openness and transparency.
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A.5 LANDMARK JUDGEMENT
Right to Information has received judicial recognition through some landmark
judgements of Indian courts.
1. Supreme Court judgement delivered by Mr. Justice Mathew is considered a landmark.
In his judgement in the state of UP vs. Raj Narain (1975) case, Justice Mathew rules-
“The people of this country have a right to know every public act, everything that is done
in a public way by their public functionaries. They are entitled to know the particulars of
every public transaction in all its bearing.”
2. According to Attorney General Soli Sorabjee - It was in 1982 that the right to know
matured to the status of a constitutional right in the celebrated case of S P Gupta vs.
Union of India (AIR) 1982 SC (149), popularly known as Judges case.
3. In 1986, the Bombay High Court followed the SP Gupta judgement in the well-known
case Bombay Environmental Group and others vs. Pune Cantonment Board.
B. RELEVENT PROVISIONS:
B.1 Sec 2(h)"public authority" means.
(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;
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(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 organisation substantially financed, .
directly or indirectly by funds provided by the appropriate Government. .
. .
B.2 Sec 4 obligations of public authorities.
Every public authority shall maintain all its records duly catalogued and indexed in a
manner and the form which facilitates the right to information under this Act and ensure
that all records that are appropriate to be computerized are, within a reasonable time and
subject to availability of resources, computerized and connected through a network all
over the country on different systems so that access to such records is facilitated.
B.3 Exemption clause sec 8 in RTI.
Nondisclosure of information, disclosure of which would prejudicially affect the
sovereignty and integrity of India, the security, strategic, scientific or economic interests
of the State, relation with foreign State or lead to incitement of an offence and other few
grounds such as received from Foreign government in confidence, cabinet
paper ,provided that the decisions of Council of Ministers, the reasons thereof, shall be
made public after the decision has been taken, and the matter is complete.
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C. Proposed amendments regarding disclosure of ‘file notings’ and
Cabinet papers’, an analysis.
Before RTI Act could have celebrated its first birthday, it was facing threat of such
amendment which if would have brought in effect, could taken away citizen’s right to
information in matters of crucial decisions of bureaucrats. The central government
proposed to exempt file notings and cabinet papers from the RTI law.
The proposed amendments to this Act were:
1. All file notings to be exempted except for social and development projects.
2. No cabinet paper to be disclosed even after a decision has been taken.
Both of these amendments are fatal to the letter and spirit of the main Right to
Information Act of 2005. before going into details we have to look into what these
File notings and Cabinet papers are.
FILE NOTINGS: A file in public office is nobody's private affair. Any such file contains
various documents including file notings which indicate the process and steps involved in
making a decision. File notings are the life of the file and the source of decisions taken.
They are that part of the file on which officers of different ranks write their comments.
Filing notings are not an individual officer's opinion note, but a compilation of different
opinions and analysis of all the positions and application of rules to a particular situation
so that the final authority - like the Chief Secretary or Chief Minister or a Council of
Ministers -- takes an appropriate decision, in public interest. File notings, thus, offer the
reasons for the decision.
Though it is the government that takes a decision, it is taken for the
purpose of people and their welfare. The claim of the government that it will 'reveal
the decision but not the reason for it' is anti-democratic and against the norms of
administrative law. It is to be noted in this regard that, It is a principle of
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administrative law that the cabinet decisions and debates should be revealed to the
people, unless they disclose any sensitive and security information.
To through light on importance of disclosure of File Notings following instance can
be discussed in brief:
Parivartan, a voluntary organisation, obtained file notings
regarding the privatization of water management in Delhi, in 2005. The notings
revealed that Price Waterhouse Coopers did not even qualify in the preliminary
round, but the World Bank twisted the arm of the Delhi Government to cancel bids,
force rebidding and ultimately changed the selection criteria. File notings also
revealed that some honest officers had protested. If Parivartan had not exposed this
using the RTI Act, the deal could have made the Delhi citizens shell out more than 10
times to present rates of water. The file notings also revealed that how the son of a
VVIP was appointed as consultant by Delhi Jal Board without any advertisement or
interview.
So disclosure of File
notings can save thousands of crores of rupees for a nation like ours. The people need
right to such information which will be hidden in invisible folds of file notings.
Do exemptions currently in force through Section 8 already apply to file notings and
cabinet papers?
The category of 'file notings' does not figure under Section 8(1) i.e. exemption clause of
the RTI Act, which lists out the types of information that the government is under "no
obligation to give any citizen". Thus, the file notings come firmly within the access as per
the RTI under Sec 2(f) of the Act and must be made public on request. Even where
notings may fall within the Section 8 criteria, they can still be made public where the
public interest is served in disclosing the information.
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The power to amend and the genesis of this proposed amendment:
The central government has every authority to amend this access legislation. Apart from
this general power, Section 30 of the Act empowers to remove difficulties, hindrances
and obstacles to give full effect to the goals and objectives of the law. Under Section
25(3)(g) of the Act, Ministries can also recommend amendments for enforcing the right
to access information.
CRITICISM AND PROTEST:
If the file notings are kept 'covered', the reasons for changes and reversals of decisions
will never be 'discovered' and discussed. Hiding files and file notes amount to
encouraging or hiding corruption, and allowing the official and non-official public
servants not to be accountable. Apart from that this amendment was neither initiated by
minister nor meant for removing any difficulties to achieve objects as given amending
powers under Sections 30 and 25 (3) (g) stated above.
Ultimately in the wake of Nationwide protest
and fast unto death by Social activist Anna Hazare UPA government withdrew proposed
amendments. But the question remains that, are there any valid grounds for such stand of
government , not to disclose File notings in the name of confidentiality at prominent
decision making levels, but there should always be an endeavor of better measures in
spite of directly denying people their right to information. Such as adding clauses as to
give identity and concern of person seeking information but not to deny information on
that ground. At last -
Madabhushi Sridhar in one of his article says- In Democracy people need reasoned
decisions and not mere decisions without reason.
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D. PSUs want to be out of RTI Act purview.
In this context a demand raised by Standing Committee of Public Enterprises
(SCOPE) is worth to discussion. Public Sector undertakings pitched hard for
exemption from mandatory disclosure norms of RTI Act. According to Scope these
could affect their commercial interest. Their demand is they should be allowed to
withhold sensitive commercial information pertaining to pricing, patent, R&D,
contracts and employee details under the act. In other words they want to be treated
on par with private companies which do not fall under the purview of the act.
Now question here is, what are the kinds of information which must
be withheld and what should be made public. How to strike a balance between right to
information and commercial interest of PSUs. It might be difficult to strike a balance but
not impossible, commissions are required to be established and look into pros and cons of
the matter. Commercial interest of the PSUs should definitely not on the stake in the
name of public interest, reason is it is ultimately public who would affected if PSUs
suffer any loss out f misuse of RTI by competitors malafied. “While Scope strongly
supports the RTI, it demands the right to know the identity of the persons seeking
information and the motive behind their queries, as many a time, there are vested
interests,” Director General of scope said(To financial Express).
E. RTI AND PUBLIC PRIVATE PARTNERSHIP PROJECTS.
Recently, the Chennai High Court ruled that a PPP project falls within the ambit of
the RTI Act.
This is in case of New Tiruppur Area Development
Corporation Limited (NTADCL). As this project was being presented as a highly
successful model of PPP, an organization named “Manthan” decided to have a closure
look and sought for some information under RTI on October 2007.
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Argument for refusal and appeal in High Court:
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. NTADCL argued
that out of the total equity of Rs.322.7 crores, TWIC(Tamilnadu Water I vestment
Company itd) held Rs.105 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 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.
Provision in RTI and interpretation by Court:
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." The Court made 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
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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.
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.
Importance of order:
Every citizen has a right to know the working of such bodies. 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 privatized) projects especially in water, health, education etc to come
under the ambit of RTI.
F. BETTER IMPLIMENTATION BY PSUs WITH THE HELP OF
INFORMATION & COMMUNICATION TECHNOLOGY:
Information and Communication Technology has brought revolutionary
changes in the area of governance and administration. It has made reach of
citizen to government (G2C), government to business (G2B), and
interdepartmental exchange of information and other transactions easier than
any thing. Where on one hand, chapter III sec 4 of Information technology
Act provides for legal recognition to electronic records and digital signatures,
on the other government of India is going online. The National e-Governance
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Plan of Indian Government seeks to lay the foundation and provide the
impetus for long-term growth of e-Governance within the country. The plan
seeks to create the right governance and institutional mechanisms, set up the
core infrastructure and policies and implement a number of Mission Mode
Projects at the center, state and integrated service levels to create a citizen-
centric and business-centric environment for governance. There is a list of
online services on official website including-
1. Income tax
2. passport, visa
3. company affairs
4. central excise
5. pension
6. land records
7. road transport
8. property registration
9. agriculture
10. Municipality
11. Grampanchayat (rural)
12. Police
13. Employment exchange
14. E-court
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RTI can be included here and on the same footings, Public sector Undertakings may
provide for online application filling and disposal by Information officers. This will save
time and reduce inconvenience of paper works which are bound to happen in traditional
filling and disposal. In this regard few amendments have also been suggested by an
organization named One world South Asia, in Iinformation Technology Act 2000. These
amendments call for a definition of e-governance that encapsulates the essence of RTI
Act, 2005;
Understanding that the term ‘e-governance’ extends to the provisioning of people’s
Participation in governance through ICT means.
CONCLUSION:
In conclusion crux of this project can be summarized as there have been constant anti-
democratic efforts to restrain Right to Information, some times in the name of
confidentiality and some times in the name of being out of the purview of law and public
scrutiny. Government should understand that the secrecy or classification of information
must be confined to security interests, privacy issues, and trade related rights, and no
more than that. In fact, the information is generated for the people. In terms of file
notings. It is the data generated, opinions sought, precedents analysed, pros and cons
discussed and impact on public exchequer examined, for advancing the public interest or
answering public demand. Neither the UK nor USA or Australia have exempted file notes
from the access to public. Public private partnership projects are meant for public, so
public has every right to look for any information. Furthermore, in any democracy the
discussion should precede the decision. So there is a need to properly classify kind of
information which should withheld on valid grounds like trade related rights, security
interest, privacy issues and at the same time preserve time of citizens to information
which is of paramount importance.
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INTERNET SOURCES:
www.indiatogether.com
www.india.gov.in
www.legalserviceindia.com
www.indianexpress.com
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