o,
Dr. E. M. Sudarsana Natchiappan, M. P.,
Chairman, Parliamentary Standing Committee on Personnel, Public Grievances, Law
and Justice,
Through: Mr. K N Earendra Kumar, [email protected]
Deputy Director, Rajya Sabha Secretariat,
Room No. 222, Parliament House Annexe,
New Delhi-110001
Sub: Suggestion on Implementation of Right to Information Act, 2005
Ref: Advertisement dated 22nd November, 2008, in the Times of India, inviting
Suggestion on Implementation of Right to Information Act, 2005
Respected Sir,
The enactment of the Right to Information Act just operationalised the existing
right under Article 19(1)(a) subject to permissible 'reasonable restrictions'
under Article 19(2) of the Constitution of India. It is settled by the Supreme
Court of India through various Judgments that the 'Right to Information', is
implicitly an untrammelled constitutional guarantee of the fundamental rights
under Article 19(1) (a) subject to the 'reasonable restrictions' described
under Article 19(2) of the Constitution of India, which allows on the right in
the interest of "the sovereignty and integrity of India, the security of the
state, friendly relations with foreign states, public order, decency or
morality, or in relation to contempt of court, defamation and incitement to an
offence".
Therefore, any restriction imposed on the people's 'Right to Information' by
the RTI Act must fall within the ambit of Article 19(2) of the Constitution of
India. Section 8 of the RTI Act allows those restrictions in the interest of
all the factors mentioned in Article 19(2) of the Constitution of India. But,
Public Authorities are engaged to enhance scope of these restrictions, denying
requisitions Information.
The Government is accountable to the people and, therefore, goals cannot be set
by the Government alone; Government has to keep the citizens satisfied or at
least pacified. Government has many duties including the allocation of scarce
resources and the provision of social services and its efficiency must be
evaluated in broader, more distinct terms than profits and losses. Furthermore,
Government is constrained by the public in terms of what is desired and what
will be tolerated. There are three definitions of efficiency in relation to
Government; administrative efficiency, policy efficiency and service
efficiency. Policy efficiency represents the idea of making the right political
decisions. It involves the selection of appropriate programs to achieve
Government objectives. Service efficiency is manifested in the effective
provision of services to the public, responsive to public opinion and so on.
Thus, the efficiency in the Government must be measured in terms of all three
facets of efficiency. Administrative efficiency, the most important of the
three, comprises of conducting the administration without unnecessary delays or
ulterior or corrupt motives and giving reasons while passing various orders. It
refers to the effective management of the political system. It encompasses good
organization and efficient productivity. Where required or implied, principles
of natural justice have to be observed.
Before the enactment of the RTI Act, this was common grievance of citizens that
the public authorities are concerned there was a general tendency to keep the
matter pending for ulterior motives including corrupt motives. Applications are
simply disposed of as rejected or saying that the Government or the concerned
authority finds no reason to accede to the request etc. The avoidance of
reasons is a device usually resorted to by officials who have no good reasons
for denial of the relief. Whereas, in principal Parliament has accepted the
basic object of the enactment of the Act to empower the citizenry to join in
its participatory role.
In consideration of my fighting against corruption, political crime nexus and
development of Land Mafiadom, I have filed more than 800 applications under
Right to Information Act, 2005, before different Public Authorities of Central
and State Governments. More than 400 applications produces very good results
and justified charges of corruption leveled by me. But information which were
denied in respect of the rest of the applications, were denied just to put an
Covert on the high level corrupt practices, committed under
Political-Crime-Nexus, and at the cost of public exchequer. If Committee wants
to know such Nexus, I am ready to give details of such corruption and the
reasons for such denials by the Public Authorities just to hide the true facts,
disclosure of the same may be exposed the high level corruption.
The Constitution of India has established democratic Republic; and whereas
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. Therefore,
with this context first of all I would be allowed to call your humble attention
with regards to item No. 4 of the aforesaid advertisement dated 22nd November,
2008, which says that The Memorandum submitted to the Committee would form
part of the records of the Committee and would be treated as confidential and
would not be circulated of disclosed to anyone, as such an act contrary to this
would constitute a breach of this advertisement. This is contrary to basic
principal of a democracy governed with transparency and accountability and
participatory role of the Governed. Therefore this should be dispensed with the
immediate effect.
In consideration of my long experiences of about 40 years against corruption, I
am humbly submitting my suggestions before the Committee for consideration to
make appropriate changes, to really operationalise the existing fundamental
rights under Article 19(1)(a) subject to permissible 'reasonable restrictions'
under Article 19(2) of the Constitution of India. This is my humble request
that I should be invited to explain in detail about the reasons and grounds for
my each suggestions. In view of my suggestions in entire Act, appropriate
amendments would be necessary. Since India is country of 1100 Million
Population, thus centralized Central Information Commission at one Place at the
National Capital and State Information Commissions at the head quarter of
States are virtual hurdle for the citizenry to use aforesaid fundamental
rights. Therefore, in this respect my approach is to decentralization of the
Commission into three tier system with joint jurisdiction for the public
authorities form the Center and State should be examined, if we really wants to
empower the Citizenry.
Hereinafter, I will mentioned and call the Right to Information Act, 2005 as
the Act.
Suggestion NO. 1
Following definitions should be included under sub-section (f) of Section 2 of
the Act:-
File Noting and Legal Opinion obtained by any Public Authority;
Suggestion NO. 2
Following new definitions should be included under sub-section (h) of Section 2
of the Act:- (1) Parliamentary Committees including Standing Committees; (2)
Banks irrespective of whether it may be private or Government Undertaking Bank;
(3) Non-Governmental Organisations; (4) Public Limited Companies having Share
Capital of more than Rs.10 Crores or engaged in supply, distributions or
manufacturing of consumer goods, or services providers, directly or indirectly
connected with the public concerns; (5) Television Channels; and (6) Daily
Newspapers having publication of daily more than 1,00,000 Copies in all
Editions in India shall be included in the list of Public Authorities.
Suggestion NO. 3
Following new definitions shall be inserted after Sub-Section (n) of Section 2
of the Act:-
(1) A fiduciary duty or confidential relationship means when a
person reposes trust and confidence in another and the person in whom such
confidence is reposed obtains control over another persons affairs, without
any monetary benefits.
(2) Public Interest means matters pertained to the "common
well-being" or "general welfare." and also matters regarding violation of the
law, or effects Human Rights of another person.
(3) Commercial Confidence means commercial information, which
does not include the information pertained to unscrupulous commercial activity.
(4) Trade Secret means a formula, practice, process, design,
instrument, pattern, or compilation of information used by a business to obtain
an advantage over competitors who do not know or use the trade secret. It is
also referred to in some jurisdictions as confidential information, and in
others is a subset or example of confidential information.
(5) Privacy means right to protection from arbitrary or abusive
interference, without support from law, with his private life, his family, his
home, or his correspondence, or of unlawful attacks on his honor or reputation.
Suggestion NO. 4
CPIO or SPIO should be renamed and replaced by the word as RTI Officer
(RTIO), in the entire Act.
Suggestion NO. 5
The RTIO should take a decision about supply or Refusal of Information, in
terms of the Act. If he decides against disclosure of the Information, he
should forward his note for refusal of Information, within 15 days form the
date of receipt of application to Senior Most officer in his Office for
approval. If such Officer gives his approval to denial of Information, in such
case the Senior Most Officer, would be responsible for the penalty or any other
consequential effects, for denial of Information, if applicant succeed to get
Information in any subsequent proceedings. The present system of Appeal under
Section 19(1) of the RTI Act should be dispensed with.
Suggestion NO. 6
Instead of the present form Central and State Information Commissions, their
should be combined three tire Commissions with the jurisdiction in respect of
all the matters relating to all Public Authorities from the State or Central
Government or others. Three Tier Commissions should be in the following manner:-
(1) Central Information Commission
(2) State Information Commissions
(3) District Information Commissions
Suggestion NO. 7
Jurisdictional Structure of the Three Tier Commissions:
(i) First Appeal or Complaints should be within the jurisdictional areas of
the respective District Information Commissions;
(ii) Second Appeals or Second Complaints if grievances are based on both the
fact and law then it should be within the jurisdictional areas of State
Information Commissions; and
(iii) Jurisdiction of Central Information Commission:-
(a) Appeal against Order of State Information Commission only on the Point of
Law can be filed; and
(b) Aggrieved person from the Order of the State Information Commission in
respect of the Second Complaint can file petition for the review of such Order.
Suggestion NO. 8
1) Appointments of Information Commissioners:
(a) Retired District Civil and Sessions Judges should be appointed as
Information Commissioner for the District level Information Commissions.
(b) Retired High Court Judges should be appointed as Information
Commissioner in each State Information Commissions
(c) Retired Supreme Court or High Court Judges should be appointed as
Information Commissioner in each Central Information Commission.
2) Numbers of the Information Commissioners:
(a) Initially in each District one Information Commissioner should be
appointed, but law should be flexible to enhance number of District one
Information Commissioner.
(b) Initially Five Information Commissioners should be appointed, for
each State Information Commission, but law should be flexible to enhance number
of more Information Commissioners.
(C) Initially Five Information Commissioners should be appointed for the
Central Information Commission, but law should be flexible to enhance number up
to Ten Information Commissioners.
3) Age restrictions should be dispensed with. Rather provision should
be made to ensure that before appointing Information Commissioners, names of
intending candidates should be published in the Local Newspapers, inviting
objections from the Public, if any. In case any objections received which may
cause clouds upon the integrity and honesty of any intending candidate, he must
be dropped out from the list for the appointment.
4) Appointment must be only for term and for three years.
Suggestion NO. 9
Full Bench (consisting of all the Information Commission at the material time)
of the Central Commission should hear the matters pertaining to point of law
and Division Bench consisting 2/3 Information Commissioners should hear matters
for Review of the Orders passed by the State Information Commission.
Suggestion NO. 10
Law should ensure Hearing through Video Conferencing as and when necessary.
Suggestion NO. 11
Section 24 of the Act should be dispensed with as the matter pertaining
necessary exemptions, which all are covered by Section 8(1) of the Act. Section
24 Act just is putting the Covert on corrupt practices.
Suggestion NO. 12
Instead of Regulation of Fees through Separate Rules framed by individual
Public Authority, law should provide appropriate provision describing the Fees
Structure for application and supply of the Information, in detail.
Suggestion NO. 13
Rules and Regulations of the Parliament should be covered by the overriding
effect under Section 22 of the Act.
Suggestion NO. 14
(1) Law itself should provide appropriate provision that applicants can opt
not to be present at the time of hearing by the RTIO (CPIO/SPIO), or before
Information Commission of any level. Applicant having residence outside of
jurisdiction, should be ensured to participate through Video Conferencing
Facility, if he/she wants to do so;
(2) Information Commission should pronounce their respective Speaking
Orders just on the basis of the materials on records before them; and
(3) Lack of the Speaking Order should draw negative points against
respective Information Commissioners.
With Best Regards,
Yours faithfully,
(Milap Choraria)
------------------------------------
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