Tag: DoPT

As it Deletes and Then Restores Data, Does RTI Online Have a Future?

The biggest failure of ‘Digital India’ has been the lack of accountability when software fails. The Union government’s portal to file RTI requests has been plagued with errors for years, none of which have been fixed.

India is rapidly digitising. There are good things and bad, speed-bumps on the way and caveats to be mindful of. The weekly column Terminal focuses on all that is connected and is not – on digital issues, policy, ideas and themes dominating the conversation in India and the world.

The RTI Online website, the portal used by ordinary citizens to file Right to Information applications related to the affairs of the Union government, has been structurally rendered useless over the last few years. It started with modifications to the website which removed the signing up process to create an account and repeated warnings that old, unused accounts would be deleted.

The recent deletion – since overturned – to remove all RTI applications prior to 2022 came as a shock to many as it was done with no notice. Many feared that this information was lost forever. 

RTI Online has now restored all the deleted RTIs and the website displays the following message: 

“The data prior to year 2022 was moved to an archival database for better performance and manageability. This archived data was not visible on the portal during this activity. The complete data for RTI Request and Appeal has been plugged in now and is available.”

There could have been multiple reasons – technical and administrative – for why the information was ‘temporarily’ removed. Often, maintenance activity of digital services can make them temporarily unavailable. While this is an accepted practice within software development cycles, such activities usually come with intimation or prior notice – which the Union government did not do. 

Changes made to the RTI Online website have always been sudden and with no explanation offered. For example, let us consider the removal of the signing-up form to create new user accounts. This small change effectively disallowed people from creating a new account and made tracking RTI applications a lot more complicated. 

A Right to Information request by the Internet Freedom Foundation filed in 2021 asked about the discontinuation of the signing-up form. The Department of Personnel and Training (DoPT) did not give any actual explanation in response. 

As part of software development cycles, institutions and projects maintain a log of changes that were made to the software release management called “changelog”. The changelog is the place where software engineers keep track of all changes being made to the software and why that change has been made. The practice may vary from one institution to the next as per their requirements, but the goal remains the same: retaining institutional memory about the software. Clearly, neither the DoPT nor the National Informatics Centre (NIC) maintain these records. 

Apart from these structural changes to how the website functions, other errors – with payment processing and the general unresponsiveness of the portal – also made it practically unusable. While these issues are not new, DoPT and NIC have never acknowledged their responsibility to fix them, which was always a source of concern. 

A message from RTI Online when payment processing fails. Photo: Srinivas Kodali

The biggest failure of ‘Digital India’ has been the lack of accountability when software fails. Every software engineer understands that systems sometimes fail and that they need to design mechanisms to tackle such scenarios. From internal errors to third-party software – like payment processors or OTP gateways going through maintenance, there are several factors to be taken into account. 

Most private software organisations and institutions follow software development practices that help ensure the quality of software doesn’t lead to system failures. However, a lack of accountability within all government institutions – that stems right from the top – means that even if there are solutions to these problems, they are not implemented. 

In this context of lack of software accountability, the future of RTI Online – and RTI at large – is also at stake. Often, people propose privatisation of government services to address the inefficiencies in the system. Such a model may not address the issues of lack of accountability because the private sector’s priority is to make profits.

Those who use RTI must be prepared for RTI Online to be completely shut down. The preparation can begin with archiving all the existing information on an alternative storage system that is not dependent on the Government of India.

The RTI community also has to ensure that rights in cyberspace are advanced by demanding electronic information and software code. Digitisation has made government systems invisible and the RTI community has to push for transparency in this domain too, as it battles to preserve this right.

Srinivas Kodali is a researcher on digitisation and a hacktivist.

No New Appointments to CIC Despite Government Receiving 256 Applications

An advertisement was issued to fill up vacancies in the statutory body eight months ago. The Central Information Commission is already working below half its capacity and all the incumbent commissioners are set to demit office by the end of November.

New Delhi: Though the Union government received 256 applications for the posts of information commissioners in the Central Information Commission (CIC), no appointments have been made in eight months to fill up vacancies in the statutory body which is already working below half its capacity. This is despite the fact that all the incumbent commissioners are set to demit office by the end of November.

This information was revealed on Thursday, August 24, in response to a Right to Information (RTI) query filed by Commodore (Retired) Lokesh Batra. In December 2022, the Department of Personnel and Training (DoPT) asked eligible applicants to apply for the posts of information commissioners (not exceeding six).

The deadline for application was January 12, 2023, by which time the DoPT received 256 applications. In addition, 12 persons sent their applications after the deadline had passed. Though eight months have passed since the deadline, no appointments have been made.

In response to Commodore Batra’s RTI query, the DoPT gave details of the search and selection process and that the particulars of applicants were tabulated by it and sent to a search committee constituted by the prime minister and headed by the cabinet secretary.

Appointments are finalised by a committee headed by the prime minister and comprising the leader of the opposition and a Union cabinet minister. The persons who are recommended by the committee are appointed to the CIC by the President.

The CIC is the highest appellate authority in RTI matters concerning the Union government. As against the total strength of one chief information commissioner and ten information commissioners, it is functioning with one chief information commissioner and four information commissioners.

The tenure of chief information commissioner Y.K. Sinha will end on October 3. The remaining information commissioners — Suresh Chandra, Uday Mahurkar, Heeralal Samariya and Saroj Punhani — will leave office in November, according to the news agency PTI.

RTI activists have long protested the Narendra Modi government’s alleged attempts to dilute the landmark transparency law. The Digital Personal Data Protection Act, passed in the recently concluded session of parliament, will further reduce the scope of the RTI Act, activists have said. Recently, years of information stored on the Union government’s portal for RTI applications “disappeared” suddenly. After activists raised an alarm, the government claimed that the website is “under maintenance” and “archival data will be available soon”.

Centre Changes Pension Rules for Retired IAS, IPS, IFoS Officers, Curtails Powers of State Govts

Under changed rules, Centre is now solely empowered to withhold or withdraw retirement benefits of officers who served in the administrative, police, and forest services without relying on any reference from the state governments, which has been the case so far.

New Delhi: The Union government has empowered itself solely with the authority either to withhold or withdraw the retirement benefits of officers who served in the Indian Administrative Service (IAS), Indian Police Service (IPS) and Indian Forest Service (IFoS) without having to rely on any reference from the state governments.

Until now, the Union government took such a call only on the references made by the state governments when a retired bureaucrat is found guilty of grave misconduct or convicted of a crime by a court.

Officers in the three all-India services are hired by the Union government through a centralised process but spend most of their career working for a state government based on their ‘cadre’ assignment.

Over the years, there have been allegations from several state governments which believe their erstwhile powers concerning All India Service (AIS) officers serving in their respective states are being usurped by the Union government.

The notification, first reported by the Indian Express,  was issued by the Department of Personnel and Training (DoPT), under the Union government, on July 6, announcing amendments to the All India Services (Death-cum-Retirement Benefits) Rules, 1958. As per these amended rules [PDF], ‘grave misconduct’ includes communication or disclosure of any document or information mentioned in the Official Secrets Act, and a ‘serious crime’ includes any crime involving an offence under the Official Secrets Act.

Also Read: Retired Security Officials Now Need Govt Nod for Any Writing Related to Former Organisation’s ‘Domain’

Earlier, rule 3 (3) of the 1958 law stated that the Central government may withhold or withdraw pension or any part of it “on a reference from the State Government concerned, if after retirement a pensioner is convicted”. This has now been amended by adding “or otherwise” after “…the State Government concerned”. The amended rules underline that the decision of the Central government on withholding or withdrawing the pension “shall be final”.

The reason for such a change, according to the Union government, is that state governments have not been sending any such references even after retired officers were convicted by courts.

In the case of those who served in any Intelligence or security-related organisation, the new rules say that “without prior clearance from the Head of such Organisation, making any publication after retirement” would be deemed unlawful. This could include “information relating to the domain of the organisation, including any reference about any personnel and his designation, expertise or knowledge gained by virtue of working in that organisation, and sensitive information.”

This is in continuation of changes introduced into the Central Services Pension Rules, 1972, made in 2021, which first sought to gag retired security officials from publishing anything without the Union government’s approval.

Quota in Promotions: Union Govt Asks Departments to Collect Data on Representation of SCs, STs

In its order, the Department of Personnel and Training cited a January order of the Supreme Court which called for the “collection of quantifiable data regarding the inadequacy of representation of Scheduled Castes and Scheduled Tribes” before implementing the quota.

New Delhi: The Union government has asked all departments to collect data on the inadequacy of representation of Scheduled Castes (SCs) and Scheduled Tribes (STs) before implementing the policy of reservation in promotions for employees.

It has also asked the departments to carefully assess the suitability of officers being considered for promotions.

In an order, the Department of Personnel and Training (DoPT) cited a January order of the Supreme Court which outlined certain conditions that are to be satisfied by the government for the purpose of implementing the policy of reservation in promotions.

These conditions include the “collection of quantifiable data regarding inadequacy of representation of Scheduled Castes and Scheduled Tribes”, among others.

This judgement currently holds the field, the DoPT order said.

“All ministries/departments are required to ensure that the above conditions are complied with before implementing the policy of reservation in promotions and carrying out any promotions based thereon,” it said.

In order to ensure that the efficiency of administration is maintained, the DPC (Departmental Promotion Committee) shall carefully assess the suitability of the officers being considered for promotion, said the order issued on Tuesday, April 12.

The Central Secretariat Service (CSS) Forum had, in January, urged the DoPT to immediately resume long-stalled promotions of its members.

The CSS Forum is an association of officers of the CSS, whose members form the backbone of the central secretariat’s working.

 

Stalin, Vijayan Join 4 Other CMs in Outcry Against Modi Govt’s IAS Rules Change Plan

West Bengal CM Mamata Banerjee, along with Rajasthan’s Ashok Gehlot, Chhattisgarh’s Bhupesh Baghel and Jharkhand’s Hemant Soren have also written to Modi to scrap the proposed amendments.

New Delhi: Two more chief ministers – Kerala’s Pinarayi Vijayan and Tamil Nadu’s M.K. Stalin – have spoken against the Union government’s proposed changes to the the IAS (Cadre) Rules, 1954.

West Bengal chief minister Mamata Banerjee, who had already been vocal against the proposed amendments, reiterated her strong disapproval on Sunday, January 23, accusing the Narendra Modi government of destroying the federal structure of the country. She has already written twice to Modi on the issue.

Earlier, Rajasthan’s Ashok Gehlot, Chhattisgarh’s Bhupesh Baghel and Jharkhand’s Hemant Soren had also written to Modi to scrap the plans.

The Union government has proposed an amendment to the IAS (Cadre) Rules, 1954, which would enable it to post IAS officers on central deputation, bypassing reservations of state governments.

Expressing deep concern about the draft amendments proposed by Union government, Stalin wrote that it “strikes at the very root of our federal polity and state autonomy.”

While the Union is availing the common pool from Group-I officers at the national level, the state governments solely depend on the limited pool of IAS officers available in the state, he stressed in a letter to Modi.

Also read: Why the Centre’s Proposed Amendments to IAS Cadre Rules Are Drawing Flak

The state governments are on the forefront of implementation of various programmes including the schemes of the union government at the state level. The states also face frequent natural disasters which demands services of IAS officers in the state more than elsewhere. Under such circumstances, forcing the state governments to depute officers would surely aggravate the ‘governance deficit’ in various states due to shortage of officers and also it is an ‘affront’ to the administrative frame work of the states, Stalin said.

The Tamil Nadu chief minister also criticised the Union government’s lateral entry recruitment, saying it affected the morale of the officers who willingly seek deputation.

Possible harm to the federal structure was also highlighted by Banerjee in her latest speech.

“How can the Centre play with our federal structure? How can it overrule the opinion and rights of duly elected state governments? The Centre should not do this,” Banerjee said at a public function on Sunday.

Earlier, she had written to Modi saying, that the amendment would “create a fear psychosis among officers and impact their performance”.

The same phrase – “fear psychosis” – was used by Kerala chief minister Pinarayi Vijayan in his letter to the prime minister too.

Vijayan said the present deputation rules are themselves heavily loaded in favour of the Union and bringing in further stringency will weaken the very root of cooperative federalism. “The proposed amendments in the Deputation Rules of All India Services will definitely induce a fear psychosis and an attitude of hesitancy among All India Service Officers to implement policies of a state government, which are formed by party/parties politically opposed by the ruling party at the Centre,” Vijayan said in the letter.

“In our federal set-up, the state governments are on a par with the central government as both of them are elected by the people, though the division of authority in the Constitution does give the Union jurisdiction over a wider range of subjects.

(With PTI inputs)

Why the Centre’s Proposed Amendments to IAS Cadre Rules Are Drawing Flak

State governments have written to the Union government over these amendments, which would allow the latter government to have greater control over the deputation of IAS officials.

New Delhi: On January 12, the Department of Personnel and Training (DoPT) in a letter to the chief secretaries of all state governments, set out a ‘Proposal for Amendments in IAS (Cadre) Rules, 1954’, saying that an officer whom the Union government wishes to put on deputation would “stand relieved” from his or her respective cadre, irrespective of the concerned state government’s consent within a stipulated time.

These proposed amendments to the IAS (Cadre) Rules would allow the Union government larger control over the deputation of IAS officials. While the DoPT says the amendments seek to overcome the shortage of IAS officers in the Union government, the proposed new rules will also take away the power of states to veto New Delhi’s request for officers.

The proposal has already been labelled ‘draconian’ by West Bengal chief minister Mamata Banerjee, who protested the move. As of now, a total of six states have written to the DoPT opposing the rules.

Currently, states can veto an IAS or IPS officer’s Central deputation, or issue an objection or no objection notice. The proposed amendment would take this power away.

The Union government has given only 12 days to state governments to send their comments, even as five states head for assembly elections. In its letter the DoPT said that the states “are not sponsoring an adequate number of officers for Central deputation”, and the number of officers is not sufficient to meet the latter’s requirement.

There is a feeling among many state governments that the proposed rules will severely affect their ability to implement policies and oppose arbitrary decisions of the Union government.

The amendments have conjured mixed responses from former civil servants, some of whom questioned the need to make the changes.

Wajahat Habibullah, a former chairperson of the National Commission for Minorities and a retired IAS officer, told The Wire, “The cadre had been organized on the lines of a federal civil service, so officers would be working as officers of the state, the services had always been a meeting ground between the federal and the unitary fold of our government”.

With the ability to undermine the state’s control over its officers, the Union government may forcefully transfer officers who are doing good work, he said. 

He further said, “My feeling is there should be greater decentralisation within the elected organs of the state, like the Panchayati Raj system. Greater control should be bestowed on people themselves, as was conceptualised during the Rajiv Gandhi government. I wouldn’t sound an alarm on this but if this is being done to gain greater control of the officers then this is not the way to go about it, trying to increase control will have its countereffects, it will weaken the federal nature of the civil services.”

Pointing toward the political nuances of this decision, Yashwant Sinha, the vice president of the Trinamool Congress and a former IAS officer, told The Wire that the BJP government was out to “destroy many fundamentals of the constitution, one of which is federalism”. He said that the present government has narrowed the powers of state governments.

“The idea is to make states as dependent on the Centre as possible. So that they have a strong Centre and the states are only vassals to them. IAS rules have stood the test of time and served the Union and state governments pretty well in the last 75 years, or ever since the constitution came. All India Services (AIS) are the best example under our constitution of cooperative federalism, that is sought to be destroyed,” said Sinha, who was minister of finance and external affairs in the A.B. Vajpayee government.

Sinha sees the AIS service cadre becoming a political football between the Union government and the states. He said that the proposed rules will destroy the autonomy of states, adding that the entire concept of cooperative federalism will go for a toss. “Everything that the BJP does is connected to their one overriding priority – winning elections,” Sinha explained.

R.K. Vij, who recently retired as special DGP of Chhattisgarh, however, said while there is no problem with officers being summoned for Central deputation, the words “specific situation” as written in the amendment are concerning. This suggests that these situations of requirement of Central deputation would be wholly determined by the Union government, he said.

CIC Cites Decade-Old HC Stay Order to Deny IAS Officer Info on Empanelment Process

IAS officer Jyoti Kalash had filed an RTI application in 2018, seeking details on the cut-off numerical score for the empanelment of IAS officers for higher pensionary benefits.

New Delhi: The Central Information Commission (CIC) has denied information to an IAS officer on the Union government’s empanelment process for a senior post in the Indian Administrative Service, citing an 11-year-old stay order granted by the Delhi high court to allow non-disclosure of the notes and recommendations of the Appointments Committee of the Cabinet (ACC).

Earlier too the Union government departments had cited this court order for refusing Right to Information (RTI) appeals by civil servants on sharing information pertaining to appointments or appraisals of IAS officers.

IAS officer Jyoti Kalash had filed an application under the RTI Act on August 29, 2018, seeking information on “the cut-off numerical score for the empanelment of IAS officers of 1990 batch as additional secretary to the Government of India” for higher pensionary benefits.

Kalash is from the Nagaland cadre. He also sought information on “the weightage of APAR (Annual Performance Appraisal Reports) and 360 degree evaluation while making assessment on an officer for the purpose of empanelment.”

Kalash’s appeal was transferred by the chief public information officer (CPIO) (RTI Cell) of the department of personnel and training (DoPT) to the cabinet secretariat the very next day. However, on October 3, the CPIO of the cabinet secretariat wrote to him that no such information was available with it. The IAS officer then filed a first appeal in November 2018, but in March 2019, the First Appellate Authority upheld the reply of the CPIO.

The officer then approached the CIC with the second appeal and appeared for a hearing through video conferencing on September 21.

Also read: It’s Been 15 Years Since RTI Act Was Passed, but Is It Really Working?

The Delhi HC order

In his order, chief information commissioner Y.K. Sinha recorded that during the hearing, Kalash stated that “the information sought was important as empanelment to the rank of additional secretary will help him avail higher pensionary benefits after retirement”.

On behalf of the cabinet secretariat, the CPIO, however, stated that following receipt of the notice from the CIC, the matter was re-examined and it was found that information on point 2 – pertaining to Kalash’s numerical score – was available.

However, the officer said, “In consultation with DoPT, it is decided not to disclose the information since the matter relating to disclosure of ACC notes and recommendations under RTI Act, 2005 is presently sub judice before the division bench of the high court of Delhi, where the decision of the single judge bench of the high court of Delhi was stayed.”

Delhi high court. Credit: PTI/File

Taking cognisance of the submissions of both Kalash and the CPIO, as also the available records, Sinha observed that the decision of the Delhi high court on November 30, 2009 in the matter pertaining to disclosure of ACC notes and recommendations was stayed by the division bench of same court on July 12, 2010 and continues till date.

Therefore, he held that “it would be judicious to await the final outcome of the pending matter in the Delhi high court.”

Incidentally, ever since the division bench of the Delhi high court stayed the operation of the CIC order and the single judge bench’s decision to uphold it, in several matters before the CIC, civil servants have struggled to get answers pertaining to appointments and empanelment by the ACC through the Commission.

Also read: Matter Being ‘Sub Judice’ Not Grounds for Denying Information Under RTI: CIC

Several appeals denied in the past too

The CIC had earlier too allowed exemption in the matter of Nutan Thakur vs CPIO, DoPT — in which the RTI activist had sought all documents, letters exchanged between DoPT and different offices, with regard to the appointments of all officers to various posts through the ACC, of which the Minister of Home Affairs is one of the members. Then central information commissioner Divya Prakash Sinha had on March 2019 restricted the disclosures citing the Delhi high court order.

In this case too, the CPIO submitted that “information sought in the RTI application was denied under Section 8(1)(i) of RTI Act as the Delhi high court vide LPA No. 347/2010 had stayed operation of a CIC order wherein disclosure of records of the ACC was ordered and later upheld by single bench of the high court.”

The information commissioner further noted that the relevant portion of the court order stated: “…This rule-making power (for conduct of the government business) of the President of India is his supreme power, in his capacity as the supreme executive of India. This power is unencumbered even by the Acts of parliament, as this rule-making power flows from the direct constitutional mandate and they are not a product of any legislative authorisation. In view of the fact that the separation of powers is one of the fundamental feature of the our Constitution, these rules, promulgated by the President of India, for regulation of conduct of government’s business (transaction of business and allocation of business) cannot be fettered by any Act or by any Judicial decision of any Court, Commission, Tribunal, etc.”

The court had further held that “since the ACC is a product of the rules framed under Article 77(3) of the Constitution of India [Conduct of Business of the Government of India], its business (deliberations including the decision whether they are to be made public) are not the subject matter of any other authority other than the President of India himself”.

Therefore, the high court held that “unless these rules, framed under Article 77(3), themselves provide for disclosure of information pertaining to the working of the cabinet and its committees, no disclosure can be made pertaining to them, under the RTI Act. Therefore, the RTI Act has rightly provided for non-disclosure of the information pertaining to Cabinet Papers.”

In light of these observations, the information commissioner had recorded that “the issue pending adjudication in LPA No. 347/2010 is whether records of the ACC being Cabinet Papers are yet distinct from the records of deliberations of Council of Ministers or not.”

Matter Being ‘Sub Judice’ Not Grounds for Denying Information Under RTI: CIC

The Department of Personnel and Training had cited this reason to deny information on bringing political parties under the RTI Act.

New Delhi: In a matter pertaining to bringing political parties under the Right to Information Act, the Central Information Commission recently reminded the Department of Personnel and Training, the nodal Central government department for RTI matters, that “sub judice is not a ground for denial under Section 8(1)(b) of the RTI Act”.

The RTI application in the matter was filed by Yash Paul Manvi on July 17, 2019. He had sought a copy of the reply filed by DOPT regarding Writ (Civil) No. 333/2015 in the Supreme Court.

The same year in the month of March, the Supreme Court had taken up a petition filed jointly by the Association for Democratic Reforms (ADR) and RTI activist Subhash Chandra Agrawal to hold national political parties accountable under the RTI Act.

The Central Information Commission had earlier in June 2013 ruled that political parties come within the ambit of the transparency law, but the parties continued to insist that they cannot be considered public authorities under the Act.

The Centre had in January 2018 submitted before the apex court that political parties should not be brought under the ambit of RTI Act by terming them ‘public authorities’, as this would not only hamper their smooth functioning but also help their political rivals file pleas with malicious intention under the guise of seeking information.

The matter is still pending before the Supreme Court. In December 2020, the Centre had filed a petition in the Delhi high court in which it averred that the issue as to whether political parties are under the ambit of RTI Act 2005 is pending adjudication/consideration before the Supreme Court.

Appellant moved CIC saying CPIO refused information without valid reason

In this backdrop, the application filed by Manvi assumed significance. The central information commissioner, Saroj Punhani, recorded in her order that the CPIO of DoPT had in response to the appellant on August 16, 2019 stated that “the matter is sub judice in the Supreme Court of India”. Dissatisfied with the reply and the First Appellate Authority’s upholding of the same, the appellant approached the Commission with the Second Appeal.

During the hearing of the appeal on June 1 this year, Manvi said he was aggrieved with the CPIO’s reply as no exemption clause of the RTI Act has been claimed therein for denying the information to him. The CPIO submitted that the exemption of Section 8(1)(b) of the RTI Act will be applicable in the matter as the subject case is sub judice.

Also read: RTI Reply Busts Centre’s Claim that ‘Elaborate Public Consultations’ Preceded IT Rules

To a query from the Commission, Punhani recorded in the order, the CPIO elaborated that “the writ petition was related to the subject matter of the amenability of political parties to the provisions of the RTI Act and urged that the disclosure of the information during the pendency of the case will lead to the disclosure of the legal opinion received by the government.”

CIC finds CPIO’s ground of denying information “untenable”

However, the Commission did not agree with this view. In her decision, Punhani said, “the original reply of the CPIO did not claim any exemption permissible under the RTI Act for denying the information sought.” She added that CPIO’s claim that the invoking Section 8(1)(b) of the RTI Act on the premise that the averred matter was sub judice was also “untenable as sub judice is not a ground for denial” under the section which pertains to “information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court.”

Noting that the arguments of the CPIO do not justify the applicability of the said exemption, Punhani, however, added that since the official had also stated that the information sought contains the legal opinion received by the department and disclosing the same during the pendency of the matter is not desired, the Commission was therefore of the opinion that Section 8(1)(e) of the RTI Act appears to be applicable in the facts of the case.

CIC cites SC observations on attorney-client relationship, fiduciary relationship to deny information

In this regard, she mentioned an observation of the Supreme Court in the matter of B.P Singhal vs. Union of India (2010) wherein it was stated: “41….Though the Attorney General holds a public office, there is an element of lawyer-client relationship between the Union Government and the Attorney General….’ (Emphasis Supplied)”.

Also read: Why Does PM CARES Not Qualify as a ‘Public Authority’ Under the RTI Act?

Punhani also relied on another ruling of the Supreme Court in CBSE vs Aditya Bandhyopadhyay (2011) in which the apex court dwelt on the meaning and import of the term ‘’fiduciary” and stated: “22….. But the words `information available to a person in his fiduciary relationship’ are used in section 8(1)(e) of RTI Act in its normal and well recognized sense, that is to refer to persons who act in a fiduciary capacity, with reference to a specific beneficiary or beneficiaries who are to be expected to be protected or benefited by the actions of the fiduciary…”

Punhani stated in the order that “upon a conjoint reading of the above case laws, it will not be out of place to infer that regardless of the fact that the legal opinion sought pertains to a government appointed law officer to a public authority, the existence of a lawyer-client relationship between the two cannot be negated and consequently, the protection afforded under Section 8(1)(e) of RTI Act is available to such legal opinion by virtue of the fiduciary element subsisting therein.”

She therefore accepted the denial of information by the CPIO, saying it was “in line with the exemption of Section 8(1)(e) of the RTI Act.”

Government Violated Own Rule While Disclosing Former Journalist’s Personal Details

Saket Gokhale’s contact details were published in the public domain by the MIB, a move that violates two office memorandums and a court order which said the information could be used to threaten RTI applicants.

The Central government seems to have violated its own directives in divulging personal details of a former journalist.

Saket Gokhale, former journalist, approached the Bombay high court after his personal details were put up on the website of Ministry of Information and Broadcasting (MIB) due to which he ended up receiving hate calls and threats. Gokhale has asked his personal information to be removed from the website and that he be compensated with Rs 50 lakh for the “mental trauma, agony and threat to life and liberty suffered” by him and his family.

As per a news report in the Times of India and petition of Gokhale before the Bombay HC, he stated that after an RTI application that he had filed in October 2019 reached the MIB, it was uploaded on its website. Following this, his contact details and address were publicly displayed.

His RTI application, originally made to the Ministry of Youth and Sports Affairs (MYSA), had sought details of the ‘Bharat Ki Laxmi’ campaign where sportswomen like Mary Kom, Saina Nehwal, P.V. Sindhu on October 22, 2019, supported the campaign and thanked Prime Minister Narendra Modi with the “same tweet with same words”.

The MYSA had transferred his application to the MIB, saying it was related to the ‘Mann Ki Baat’ programme by the prime minister. The MIB then put the same information on the website as part of suo motu disclosure. Gokhale said in his petition that due to this, his personal details were visible even on Google search engine and one could get them if they entered certain key words into the search engine.

His petition to the HC further states that after his writ petition was taken up as a public interest litigation in the Allahabad high court, which called for a stay on the gathering of over 200 odd guests for Ram Mandir Bhoomipujan in Ayodhya, on July 24, 2020, “a mob of 12-15 people” gathered outside his house, chanting slogans and asking him and his mother to come and face them.

An FIR was lodged and he was given police protection. Gokhale said he was surprised as to how the mob knew his phone number and address. When he did an internet search, he realised that the MIB had put his RTI application with personal details online. His petition states that until then, his details were not known.

Gokhale states that his personal information should not have been put online and that even as per provisions of the RTI Act, one has to ask the third party before putting out such information. But RTI activists point out that two office memorandums that are binding on officials along with a court order were violated in doing this.

Also read: Jailed for a Month Over Tweet, Prashant Kanojia High Court Bail Plea to Now Come up After 4 Weeks

The court order that was violated

In 2016, the Department of Personnel and Training (DoPT) under the Ministry of Personnel, Public Grievances and Pensions, which is the nodal agency for the implementation of the RTI Act, issued two office memorandums.

Office memorandums are like guidelines that are mandatory for officials to follow. These categorically stated that personal information of an applicant should not be put on websites as part of suo motu disclosure. For this, DoPT even relied on an order of the Calcutta high court.

The Calcutta high court, hearing a petition from an activist, on November 20, 2013, directed that personal details of the applicant should be removed or else it could risk their life. The court was hearing a petition that the post box number of an applicant should suffice and that public authority should not insist for contact information.

Calcutta HC’s order on personal details of an applicant by The Wire on Scribd

The applicant had cited cases where RTI applicants were attacked by people with vested interest when their personal information became known and hence had refused to give detailed addresses. Gokhale has cited this order in his petition and that the court had even asked the government to circulate it and was circulated.

However, while giving the order, the Calcutta high court further observed that even the RTI Act states that applicants shall not be required to give any reason for requesting the information any other than personal details except those that may be necessary for contacting them. So as an extension to that logic and the threats that RTI activists have received, it is only right that post box number should suffice.

The court also sought a detailed response from the state government about the petitioners' claim that campaign against the CAA was carried out using public money. Photo: PTI

Calcutta HC. Photo: PTI

The order further directed the secretary, Ministry of Personnel, to circulate a copy of its order to all the concerned who “can take appropriate measures to hide information with regard to personal details of the activist to avoid any harassment by the persons having vested interest” while disclosing RTI applications, first appeals and their replies.

Until then, the authorities were directed by the DoPT to upload RTI replies and replies to first appeal but were given the option that they may not provide personal details as they did not serve any public interest. So giving out personal details was left to the discretion of the public authority. However, in the light of objections raised, and order of the Calcutta high court, it drafted a new office memorandum on March 23, 2016 that categorically stated that personal information should not be put out and even asked for suggestions and objections from stakeholders on the office memorandum.

Office memorandum on March 23, 2016 by The Wire on Scribd

This was followed up with a final office memorandum dated October 07, 2016 on the issue of “Uploading of RTI replies on the respective websites of Ministries /Departments”. It stated “the personal details of RTI applicant/appellant should not be disclosed as they do not serve any public interest. It is further clarified that the personal details would include name, designation, address, e-mail id and telephone no. including mobile no. of the applicant.”

Office memorandum dated October 07, 2016 by The Wire on Scribd

Also read: Prashant Bhushan’s Petition Seeks Intra-Court Appeal in SC in Criminal Contempt Cases

Activists caution against blocking free flow of information

Putting up RTI applications, first appeals and replies to them by public authorities was reaching mutual ground-of-sorts with stakeholders. It was to counter resistance from authorities that felt that RTI work took much of their time affecting other official work, allegations of misuse of RTI, similar information sought by various people, public information officers (PIOs) and first appellate authority not giving proper information and order and RTI not serving its purpose.

“The idea was to tackle all these arguments against RTI applications and achieve transparency simultaneously. Most applications were seeking information that should have been made available to them suo motu by authorities, which is anyways mandatory under RTI and has to be compiled and updated twice in a year. It was to enable transparency even in the way PIOs and orders first appellate authorities (FAA) conducted themselves and passed their replies and orders. In many cases people did not get information and the FAA would not even pass proper order which was increasing the workload at information commissions with second appeals. The idea was to bring transparency in their work also and highlight bad RTI practices,” said Bhaskar Prabhu, RTI activist whose organisation Mahiti Adhikar Manch takes up awareness of RTI.

Venkatesh Nayak, programme head, access to information programme, Commonwealth Human Rights Initiative, a body that interacts with government and works on RTI, said putting information on websites was essentially done because many applications were filed on the same subject. “However, it has to be catalogued and indexed with keywords for search. Most do not upload and information is neither catalogued nor indexed for it to be helpful. It has even not been able to. BBC has a foilogs (freedom of information logs) that provides suo motu information,” said Nayak.

He added, “Information like draft environment resolution, those related to policy, recruitment etc. would be useful to citizens and not many RTI applications will be filed if they upload such information suo motu.”

Hiding details, however, is something that RTI activists say should be dealt carefully. “When you are talking of blocking free flow of information, one should be very careful. Because like this, all information should not be under public domain. Vested interests are there in government too. It can be that they give details of applicants and not necessarily that it is taken from a website. So one has to see how they get such details and if there is a direct link that can be established,” said Anjali Bhardwaj, co-convenor of National Campaign for People’s Right to Information (NCPRI), a body instrumental in getting the RTI law passed.

Shailesh Gandhi, former central information commissioner, said, “For RTI applicants like in this case of Gokhale, personal details should be removed because there could be threats to them. But only if someone is likely to be threatened, like in this case. I can see some merit in the argument that personal details should not be removed. We want all personal details of government officers but do not want to give any. Once (personal) information is with the government, unless it harms decency or morality, it should be given. As a general principle, I am not in favour of blocking information. But if someone is threatened, it can be removed. The RTI Act is very clear on when information can be denied.”

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Vijay Kumbhar, another RTI activist from Pune, echoed views of Gandhi and Bhardwaj. He said that he too did not see any problem with personal details being uploaded and that issue should be seen on a case to case basis.

“How will a PIO know if a person is going to get a threat? And it is not that someone cannot source personal details from elsewhere. There are many ways to figure out personal details including government officers who are hand in glove and give away such details. In Rajasthan, they have even put details of beneficiaries with their address and account number. Such transparency helps and brings in accountability. People ask that their names also should not be mentioned. High court websites have names of parties. Is the threat any less that time? At this rate all detail will go away,” said Kumbhar.

The two-page links provided by Saket in his petition where his details are available on the MIB website did not appear when the correspondent checked it, but similar details of other applicants were still present.

The Ministry of Information and Broadcasting did not get back when asked if his details were pulled down and why it was put up. An official from PIB said that he is not able to locate Saket’s RTI application. After sharing both the links Saket had given in his petition with the MIB, the second link, which gave his personal information, now does not hold that information.

“Disclosing contact details and address of RTI applicants puts them at a great risk. The onus of transparency (as some activists have mentioned) lies on the state and not on private individuals seeking information. This is precisely why the Calcutta high court in Avishek Goenka versus Union of India expressly forbade the government from publishing personal details of RTI activists,” said Gokhale, in a conversation on WhatsApp.

He added, “Activists who wish that their contact details be published should be provided an opt-in option. Blanket doxxing goes against all the rules and puts the applicant and their family at risk. The standard norm should be hiding the details unless the applicant consents to it and opts-in. Moreover, what’s important in suo moto disclosures is the information in the RTI and not necessarily the entire history and contact details of who sought the information.”

On questions regarding the need to seek information from public servants, and that vested interests manage to get such information from other sources as well, Gokhale replied, “People are entitled to the fundamental right to privacy as ruled by the Supreme Court. Transparency relates to information that has a bearing on public interest. I fail to understand how the address and phone number of an RTI applicant contribute towards “public interest” or “transparency” in any manner.”

He continued, “The RTI Act gives the right to citizens to seek information from the State. It is this information that forms a part of public interest. I do not agree that the phone number and house address of an RTI applicant exercising their right to seek information is a subject of “public interest”. Claiming so creates a terrible false equivalence between a private individual exercising their right and a mighty state whose duty it is to furnish information.”

The Ministry of Information and Broadcasting did not respond to why his details were put on the website in the first place.

Ashutosh M. Shukla is an independent journalist based out of Mumbai. He has been writing on RTI and transparency related issues among others. Twitter handle: @scribeashutosh

PM Asked to Take Action Against Central Vigilance Commissioner for Caste Discrimination

K.V. Chowdary has been accused of “casteist, vindictive and malicious discrimination” by the additional chief secretary of Tamil Nadu, Jagmohan Singh Raju.

New Delhi: Central Vigilance Commissioner K.V. Chowdary has been accused of “casteist, vindictive and malicious discrimination” by the additional chief secretary of Tamil Nadu, Jagmohan Singh Raju. A notice has been sent to the Prime Minister’s Office in this regard by Raju’s counsel, Prashant Bhushan.

The notice also refers to the Department of Personnel and Training (DoPT), which comes under Prime Minister Narendra Modi, abdicating its responsibility of implementing the recommendations of the National Commission for Scheduled Castes (NCSC) and the Ministry of Social Justice and Empowerment.

Bhushan wrote to the PMO that both the NCSC and the ministry had directed that action be taken against officials responsible for the victimisation of IAS officer Raju, who has had an “unblemished and illustrious career” of over 33 years.

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The notice further stated that there seems to be a wide disconnect between Modi’s stated commitment to the welfare of the Scheduled Castes and the response of rhe DoPT under his overall charge when it comes to the welfare of a community member. This, it said, was apparent from the fact that no action was against the CVC despite the NCSC holding him up for acts of malice towards the SC officer. The recommendation was made by the NCSC on December 9, 2016.

TN officer accused CVC of acting in mala fide manner

Earlier, in his plea, Raju accused the CVC of acting in a mala fide manner against him and ignoring all standing circulars, rules and office memoranda to order an inquiry into already closed complaints. He charged that this was done to withhold his vigilance clearance for empanelment as an additional secretary.

On this, the NCSC recommended to the DoPT:

“The Commission is concerned that if such a senior Scheduled Caste officer, has to face discrimination and injustice, leading to impediment to his career by delay in empanelment, demoralising him, as well as the petitioner having to unnecessary bear the stigma of an officer under investigation by CVC, then what is the recourse of the thousands of ordinary Government servants belonging to the Scheduled Castes. Injustice and discrimination at the hands of the public authorities erodes the faith of the community in the system.

The Commission has found, for reasons recorded above, that the petitioner has been grossly discriminated against and victimised. The findings of this case may be brought to the notice of the competent authority in the DoPT with the recommendation that it may take appropriate action in accordance with the Government’s instructions…The action taken by DoPT in this regard may be reported to this commission with 3 months.

DoPT may also examine if Section 4 of the Schedule Caste and Schedule Tribes (Amended) Act, 2015, will apply in the instant case and if so, consider to take necessary action.”

When the DoPT did not implement the recommendation, Raju moved the Delhi high court. On December 7, 2018, the court directed that a decision upon the findings and recommendations of the NCSC be taken within two months.

Ministry opinion said offence for discrimination was made out

DoPT then sought the views of the Ministry of Social Justice and Empowerment. The ministry gave its opinion on January 1, 2019.

It stated that insofar as the applicability of Section 4 of the SC/ST Act is concerned, it was up to the administrative ministry (DOPT in this case) to consider the merits of the case vis-à-vis the applicability of the section.

Also read: 400 Academics Condemn ‘Caste Discrimination, Institutional Harassment’ in IIT Kanpur

It also stated that sub-section (1) of Section 3 of the Act, which constitutes a punishable offence, seemed relevant in the context of discrimination, including discrimination at the workplace.

DoPT sent opinion to ‘accused’ CVC for action

The notice has stated that despite these views of the ministry, the DoPT, instead of initiating action as per law against the CVC, forwarded the comments of the ministry to the Central Vigilance Commission for necessary action on the NCSC’s recommendations.

“Not surprisingly,” the petition stated, the Commission, whose chief is the prime accused in this case, informed the NCSC on March 11, 2019 that in the facts of the case there would be no administrative inquiry into the ex-facie discrimination faced by Raju.

Thus the notice has charged that Raju’s is another case where the Modi government has failed to protect the dignity and interests of members of the Scheduled Castes.

`Remove CVC, file FIR’

The notice has stated that it is time for Raju to be given justice. It has therefore called upon the DoPT to initiate action for Chowdary’s removal as CVC under Section 6 (1) of the Central Vigilance Commission Act, 2003, including making  a reference to the Supreme Court for holding an inquiry.

It has also demanded the registration of an FIR against the CVC and other unknown persons under sections of the SC/ST Act and other relevant laws.

The full text of the legal notice is below.

Legal notice on behalf of J… by on Scribd