.... the brain is not a vessel to be filled,
It is something to be IGNITED

BURNING BRAIN NEWSLETTER - October 2006

It was a pleasure to receive invitation from the President of India, Dr. A. P. J. Abdul Kalam to discuss our concerns regarding the "Right to Information Act." 04:45 P.M. on October 30, 2006 was the appointed time for the meeting.

I and three of my associates had an opportunity to discuss issues relating to RTI reforms needed for proper implementation of the “Right to Information” laws. The President was very receptive and discussed all the concerns we had, in full details,  during the 30 minutes meeting. The President showed keen interest on the suggestion that the whole of India should have the same RTI rules applicable everywhere instead each state making its own rules.

Five major issues were discussed in the meeting. It was mentioned that some information commissions were wrongly preventing NGO’s from seeking information under the RTI Act. We pointed out that when NGO’s were empowered to move the courts for preventing violation of fundamental rights under part three of the constitution then there was no reason why there should be any restriction on seeking information, especially when legally there was no restriction on NGO’s or AoP’s to seek information.

The provisions of Section 27 and 28, which empower the “State Governments” and “Competent Authorities” to make their own rules were also discussed. It was mentioned that these provisions were being grossly misused and playing untold bedlam and severely restricting the implementation of the RTI Act.

Issues relating to appointment and condition of service of the information commissioners were also discussed. We emphasised that no government servant should be eligible for selected for the position of information commissioner until three years have elapsed since his/her last assignment with the government. There must be the involvement of the Supreme or the High court chief justice instead of any other minister in the appointment of the information commissioners. We insisted that just like the provisions in the Human Rights Act, any person who has been an information commissioner must be ineligible for further government appointment so as to ensure impartiality in selection and decision making of the commission.

Information Commissions must be promoted as facilitation centres with minimum procedural hurdles and not as courts with complicated procedure was our emphasis. And lastly the most important issue of no amendment which abridges the right to information as enjoyed currently under the RTI Act was also discussed.

The President was most receptive and discussed each of the issues we raised point-by-point. All my comrades, namely Mr. Ajit Tomar, Ms. Poonam and Mr. Devender Madan contributed to the discussion to make it more emphatic and forceful.

With a concerned President like Dr. Kalam, I am sure the RTI Act is in safe hands. Meeting the President assured us that Dr. Kalam is as much concerned about the unfettered right to information as me and you are.
 

Yours,
Hemant Goswami
Chairperson,
Burning Brain Society

Copy of the memorandum discussed with Dr. Kalam
 

BBS/PoI/1006/016
October 30, 2006 

His Excellency Dr. A. P. J. Abdul Kalam,
President of India
NEW DELHI 

ENSURING PROPER IMPLEMENTATION OF RTI ACT FOR EMPOWERING PEOPLE 

Your Excellency, 

We are thankful to Your Excellency for sparing valuable time to listen to the voice of the common man on concerns relating to implementation of the “Right to Information Act 2005.” The intend of every concerned citizen is that the RTI Act should achieve the intended objective of empowering the people by helping inch the nation closer in achieving the goals  enshrined in the Constitution to built an egalitarian society based on Justice, Liberty and Equality. 

We on behalf of the common people of India would like to highlight some of the issues relating to proper implementation of the “Right to Information” for your kind perusal; 

PREVENT EXLUSION OF CIVIL SOCIETY FROM RTI 

In a bizarre interpretation of the “RTI Act” the Central Information Commission has held that any NGO, Trust, Society or any other AoP are not eligible to seek information under the RTI Act. Such interpretation is not only incorrect but also illegal.  

To point out the legal interpretation, it may be mentioned that any NGO, Trust, Society or any other AoP can approach the High Court or the Supreme Court for protection of the fundamental rights as in Part III of the constitution or otherwise. Section 6 and Sec. 18 and 19 of the RTI clearly read that any “Person” may seek any information and any “Person” may file an appeal with the Information Commission. According to Article 367 of the Constitution, for any interpretation the “General Clauses Act, 1897” has to be referred. Section 3 (42) of the General Clauses Act, 1897 reads that “Person” shall include any company or association or body of individuals, whether incorporated or not;” (Quoted). Further even Section 11 of the Indian Penal Code 1860 also defines “Person” as “Person”—The word “person” includes any Company of Association of body of persons, whether incorporated or not. (Quoted) 

It is quite strange that an NGO can approach the Supreme Court for enforcement of rights conferred under the Part III of the constitution but are denied the right to seek information under the RTI Act by the CIC. 

Any attempt to exclude NGO’s and/or Civil Society from the RTI Act shall have a telling effect on achieving the desired ends of the Act. This wrong interpretation must be immediately clarified and rectified. 

UNIFORMITY IN RTI RULES 

The provisions of Section 27 and 28 which empower the “State Governments” and “Competent Authorities” to make their own rules are playing untold bedlam and severely restricting the implementation of the RTI Act. These provisions are being grossly misused by many “Competent authorities,” “State Governments” and the corrupt bureaucracy/officers. 

Many States and Competent authorities have prescribed fee as high as Rs. 500/- (Instead of Rs. 10/- as prescribed by the Act) for seeking information. Complicated forms and payment methods to deposit RTI fee has been prescribed which makes it nearly impossible for a common citizen (Especially people living under poverty line or those illiterate) to seek information. For example Delhi High Court prescribes a fee of 500 for seeking information (Rule 10 of “Delhi High Court (Right to Information) Rules, 2006”) and has reduced the fine on delinquent official not furnishing information to Rs. 50/- per day (Instead of the prescribed Rs. 250/- per day in the RTI Act). Similarly the State of Himachal Pradesh which has a large population living in poverty has prescribed two complicated forms “A” and “D” for seeking information and inspecting files. Further Himachal Government accepts fee only if it be deposited in the Himachal Government Treasury and three copies of the treasury receipt are deposited along with the two forms. Further if a subject matter related to a matter spread over ten years then the applicant has to submit ten separate applications, one pertaining to each year and deposit separate set of form and fee for each year. Most other State Governments like Haryana too have enhanced the RTI fee to Rs. 50/- or above in addition to prescribing non-practical and cumbersome rules.

The power granted to the State Government and Competent Authorities under Section 27 and 28 to frame their own rules must be immediately recalled and uniform rules by the Central Government must only be applicable. People from any part of the country must be enabled to seek information from any other part of the country. “One India” should have “One rule”. 

APPOINTMENT & SELECTION OF THE CIC AND SIC 

The present mode of appointment of the CIC and the SIC as mentioned under Section 12 and 15 is not proper and needs to be changed.  

a.       The three member recommendation committee for the CIC and other Information Commissioners should include the “Chief Justice of the Supreme Court” in place of “a Union Cabinet Minister nominated by the Prime Minister,” as mentioned in Section 12(3)(iii). 

b.      The three member recommendation committee for the SIC and other Information Commissioners should include the “Chief Justice of the High Court of the State” in place of “a Cabinet Minister nominated by the Chief Minister,” as mentioned in Section 15(3)(iii). 

c.       No person from the bureaucracy should be appointed as an Information Commissioner unless at-least three years have elapsed since his/her last assignment with the government. The precedence of appointing the relived “Chief Secretaries” as Information Commissioner is detrimental for proper implementation of the RTI Act as many times the Information Commissioners have to listen to appeals against the same officers with whom he/she still enjoys a very emotional or close personal rapport. This often comes in way of passing firm orders and/or penalizing delinquent officials.  

d.      As far as possible young people involved in social activities with a proven track record and who are adequately qualified should be considered for the position of Information Commissioners. 

TERM OF SERVICE OF THE CIC AND SIC 

No Information Commissioner should be eligible for any further appointment under the Government of the State or under the Government of India on ceasing to hold office. To ensure that the members of the commission work in an unbiased manner and do their duty without expecting any future gains/returns for any “favour granted,” including such a condition is must.  

Such a condition is also there in Section 24(3) of “Protection of Human Rights Act 1993,” which reads, “24(3): On ceasing to hold office, a Chairperson or a Member shall be ineligible for further employment under the Government of a State or under the Government of India.” A similar condition should be included in the RTI Act. 

NEED TO PROJECT INFORMATION COMMISSIONS AS “FACILITATING BODIES” AND NOT AS COURTS 

Most Information Commissioners are projecting themselves akin “Judges” and “Information Commission Office” as “Court of Law.” This is counter productive and gives an impression of an unfriendly and vexatious system. Such an image is likely to defeat the objective of the RTI Act. Most Information Commissions are also promoting the idea of quoting the earlier decisions of Central Information Commission or the State Commissions as precedence, just as case laws quoted in courts. Our Constitution does not intend to promote such a system and this is the reason that only the “High Court” and the “Supreme Court” have been designated as courts of record and no other tribunal or quasi judicial commission/forum. By promoting a system like that of courts, the distance between the “Commission” and “People” is likely to increase further which would be eventually fatal to the desired objectives. Besides, such a system would also give growth to professionals who are expert in manipulating all such systems and procedure to their advantage. 

QUESTION OF AMENDMENT 

No amendment which abridges the right to information as enjoyed currently under the RTI Act must be allowed to be made. No new organisation should be included in the “Second Schedule” of the RTI Act. All discussions and contemplations regarding any proposed amendment to the RTI Act should be open to public at all times and done only after involvement of the civil society which should be absolutely open and transparent at all stages. 

Your Excellency; we are very hopeful that you will consider our prayer and thereby enable the voice of citizens of India mouthed through us, heard in the higher echelons of power. We also pray that the necessary administrative, legal and other corrective changes as suggested above are considered so that the spirit of the RTI Act and the Constitution of India is protected. 

Thanking you,
Yours cordially

Hemant Goswami
Chairperson, Burning Brain Society
Convenor, Citizens Voice

Devender Madan        Ajit Tomar      Poonam Goswami         Neeraj Chaudhary        

.... and other concerned Citizens of India

You can send your payments/drafts/cheques and other contributions in favour of Burning Brain Society, payable at Chandigarh and addressed to:

Burning Brain Society
Glass Office 3, Business Arcade, Shivalikview, Sector 17-E, Chandigarh 160 017 INDIA

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