Note for reform in RTI regime in Odisha

 

Note for reform in RTI regime in Odisha

      (Required intervention of State Government)

 

Enforcement of RTI Act has completed about seventeen years in Orissa as at national level and in other States/UTs. At the outset, To implement the Act, Govt. of Odisha   farmed  Orissa RTI Rules 2005, which was   opposed by Civil Society Groups during that time.   Many eminent citizens and national level RTI activists like Mrs. Aruna Ray, Mr. Sailesh Gandhi and Ms. Maja Daruwala of CHRI did also object to quite some provisions of Orissa RTI Rules on the ground of their incongruity with the parent law. Specifically, Mrs. Ray had met the Chief Minister Orissa in Dec 2005 and pressed him to withdraw them at the earliest.  However, in view of public criticism,  the State Govt. of Orissa on the floor of Assembly in April 2006 announced a bunch of new provisions including reduction of fees on different heads, which was notified in official gazette on 29^th May 2006 under the caption ‘Orissa RTI (amendment) Rules, 2006’.

 

The above amendments, though fair and useful in themselves, didn’t however touch at all on the mainframe of Orissa RTI Rules 2005 (such as a lengthy application form requiring disclosure of personal details and attachment of a copy of voter card, forms and fees for making appeals,  ), which in the opinion of civil society groups were against the letter and spirit of the RTI Act.

 

 We   draw  the attention of the  Government on the  following points  for  effective implementation of RTI Act.

 

1.        Amendment of  Odisha RTI Rules, 2005

 

A.     Replacement  of compulsory Application Form by RTI Application Format

Under Section 6 of the RTI Act, a citizen seeking information is not required to submit his/her   application to the Public information Officer in any particular form. But Orissa RTI Rules has prescribed a compulsory 11-point lengthy and complex application Form, without proper fill-up of which one’s request for information shall not be entertained.   Moreover, the said Form requires an applicant to disclose several of his/her personal information like identity as a citizen, permanent address, and spouse name, which are as such prohibited from disclosure under Section 6(2) of the Act. The Central Govt. has not prescribed any Application Form as such, and some State Governments who have prescribed Forms have not made them compulsory.  The present Form-A of Orissa is simply a burdensome provision for the people of Orissa.  After a lot of demand for withdrawal of this format,  a high level committee under chairmanship of   Sri Surya Narayan Patro, the then Minister, I and PR Dept. was held on 3.8.2011 for amendment of Odisha RTI Rules. This Committee recommended  for amendment of Application Form.   The Application Form i.e. Form-A imposed by Govt. of Orissa should therefore be withdrawn and replaced  with a simple format.

 

B.      withdrawal of appeal Form and   fees           

There is no provision in RTI Act to prescribe any Form or Fee for making an appeal, first or second. The Central Govt. and many other State Governments have therefore not prescribed any appeal form or fee. But the Govt. of Orissa, in clear violation of the Act has prescribed both appeal form (Form D for 1^st Appeal and Form E for 2^nd Appeal) and appeal fees (Rs.20/- for 1^st appeal and Rs.25/- for 2^nd appeal).  Besides the Orissa Rules make it compulsory for such appeal fees to be deposited only through Court Fee Stamps, to procure which is a great difficulty for the common citizens. So the State Government should  consider  abolishing  this Form and Fee system and  replace it  with  a simple  format.  

 

C.     Withdrawal of provision for  submission of proof of Citizenship

 The provision made under the Orissa Rules-2005( vide –Rule 4)  that the Applicant  has to satisfy  the PIO about his/her identity  before his/her application  is considered, is ultravires  the parent Act and needs to be withdrawn. The Section 6 (2) of the RTI Act  categorically says that  an applicant “ shall not be required  to give any reason  for requesting  the information or  any other  personal  details  except  those  may be necessary  for contacting him”.  While adjudicating a writ petition No. 33290/2013 ( Avishek Goenka vs Government of West Bengal) on 20.11.2013,  the hon’ble Calcutta High Court  made an observation that as per section 6(2) of the RTI Act,  the applicant need not disclose any other personal details, the authority should not insist upon his detailed whereabouts particularly when post box number is provided for that would establish contact with him and authority.

 

Following this order, DOPT, Government of India issued circular to all State Government  dt. 8.1.2014  enclosing order of Calcutta High Court  for implementation of said order. The I and PR Dept.   issued  a circular 

Directing to all Departments to comply order of Calcutta High Court to protect the interest of whistle blowers/ Information-seekers.

 

D.     Withdrawal of Form-C 

 The Form –C (Intimation of Rejection) as it stands now   is not only  prohibitive  of people’s right to information, but  also  ultravires  the mother law. It needs to be struck off. The section 7(1) of the RTI Act  says that a request for information can be rejected  for any of reasons  specified  in  Section 8 and 9 only. But the Form-C  in its column  (i)  without specifying  the particular reasons  under the said sections, mentions  just in a blanket, roughshod manner  that it comes under exempted category covered under sections 8 and 9 of the Act. Similarly, the Column (iv)  spaciously  saying that “the information is contained  in published material available to the public  and quoting it  as  a ground for rejection  carries no meaning   for the  citizen  at all. Again, the column (vi)  saying “ The information sought  for is prohibited  as per section  24(4)  of the Act is negatively slanted  against the citizen’s quest for information, since the said section permits  the information relating to  cases of corruption  and human rights violation to be disclosed  albeit  after getting the approval  of the Information Commission. So instead of saying just “no”, the said column might say, “Your application  has been forwarded  to the Information Commission  for their opinion “. The Column (vii)  saying  that “ The information  would cause  unwarranted  invasion of privacy  of any person  is absolutely redundant , since the factor  is covered  under section 8(1j), already taken  care  of by the column (i) mentioned above. Thus  the Form-C is ultravires  the mother Act  for the reasons already shown above.

 

2. Overhaul of Odisha RTI Rules,2005  is required

As discussed above, Odisha RTI Rules suffer from a lot of incongruities, illegal and ultravirus  provisions which  stand as biggest obstacle  for effective implementation of RTI Act in Odisha. However, within period of 18 years, many of these provisions have been outdated or withdrawn or has become irrelevant through the circular issued by State Government  from time to time following direction of  Odisha Information Commission and High Court, Odisha. So the provisions of Odisha RTI Rules  requires over-all reform and changes  to meet  the letter  and spirit of RTI Act. We cite few examples as follows.

a.       Provision of Rule 2(e ) of Odisha RTI Rules –“identity” means  an evidence  to show the citizenship like an electoral photo identity card o passport xxxxxx” is absolutely ultravirus as per section 6 (2) of RTI Act , order of Calcutta High Court and subsequent circular issued  by I and PR Dept. dt. 21.1.2014.

 

b.       Rule-4 ( Procedure to obtain information)-  “A citizen desirous of any information may apply  for information in form-A  xxxxxxx with the required fee in shape of treasury Chalan  or cash as specified  in the schedule  under the appropriate head of account”  is to be  reformed  as  the Dept. of I and PR has issued  OFFICE MEMORANDUM  ISSUED DT. 29.11.2011 and 17.10.2013   specifying multiple mode of payments of application fee and fees for information.

 

c.       Rule-4 – “ Provided  that the application fee shall not be payable  in case of any person  whose name appears in the latest  list of persons  below poverty line  for which he has to produce BPL card” is full of ambiguity  as the I and PR  Dept. issued  circular dt. 21.9.2015 BPL people shall not be charged any kind of fees and cost of information as contained in the section -7(5) of the RTI Act.

 

d.       Rule-10( calculation of cost of damage) the provision of “ if any damage shall be recovered xxxxxxxx  representing cost of providing information” needs  to be withdrawn as it is illegal  not citizens-friendly.

 

e.       Schedule of Fees prescribed under Orissa RTI (amendment) Rules,2006 – the provision of fees for information in mode of floopy and CD  should be reformed  addition of  pendrive   which is mostly used  by Public authorities in course of supply of information as per direction of the Information Commission.

 

f.        The proposed  reformed Odisha RTI Rules  should also  make provision of seeking information in on-line system along with payment of fees  through multiple mode of payments, as  the Govt. has already launched on-line system for information-seekers.

 

While making overhaul of Odisha RTI Rules,  the circular issued  by DOPT, Govt. of India dt. 10.7.2015 to all State Govt.   for Harmonization of RTI (Fee & Cost) Rules and Appeal Procedure Rules under Right to Information Act, 2005 should be taken into consideration. Even Central RTI Rules,2012 can be taken  as model for  smooth implementation of RTI Act in the state.

 

 

3.                       Updating proactive disclosure of information in website ( www.odisharti.in) and its publication in Odisha language.

 

To implement section 4 of the RTI Act, the  State Government has  put a roust mechanism in place i.e., a single window system ( www.rtiodisha.in ) for uploading suo moto disclosed  information under  section 4(1)(b) of the RTI Act of all public  authorities  which can e easily accessible  for all the  citizens  across the  globe. This initiative was first ever kind  during  that  time in 2010 and the  Govt. has received  national award  for   design of this  website. But, if we will have a glance to this website, the information uploaded in this website is seen old one and not periodically updated by any public authority. Since last few years, Odisha Information Commission has been repeatedly  passing order for  updating  the information in every year and publish the same  in Odisha language.  But no concrete effort  is put by the  Govt. to make this website  citizen-friendly publishing  the same  in Odia language.  The State Govt. should give top priority  for  updating  suo moto disclosed  information both in Odia  and English , as  we are in the digital world.

 

4.   Putting display board  on RTI  in front  of all  offices.

 

 In 2005, the  State  Government  has taken  decision  to put  in place  the  display board on RTI  in front  of all Govt. offices  to sensitize  the  people  about objectives  and fundamental provision of RTI Act. But it has not  yet  implemented in the state. Necessary  direction can be issued to all  department for show  of display board on RTI in front of  each offices  across the  state.

 

 

5. Amendment of Odisha Information Commission ( appeal procedure ) Rules,2006

 

A.      Rule-8 (Service of notice by the Commission)

A proviso is to be added here that the first hearing of a Complaint or an Appeal, as the case may be, shall be held within 30 days of its registration, and a notice for the same shall be served by the Commission to the concerned parties within 7 days of its registration, unless the said case is earmarked for the purpose of an enquiry under Section 18(2) of the Act.

 

Another addition to be made here is that every notice to be so served shall be written in the regional language of the state Oriya, and an English version of the same may be served along with the Oriya version.  

 

B.     Rule-9 (Personal Presence of the appellant or complainant)   

A proviso shall be made here that in any appeal proceedings the PIO, First Appellate Officer or the representative of the concerned public authority, as the case may be, shall be given only one opportunity to present himself in the hearing for discharging his burden of proof, failing which he shall be held guilty and therefore penalized as per Section 20 of the Act.

 

C.     Rule-10 (Decision of the Commission)    

An addition is to be made here that the Commission shall hold a maximum of 3 hearings to decide an Appeal or a Complaint, as the case may be, within a maximum period of 90 days from the date of its registration.

 

 

6. Hearing of the cases through video and audio hearing.

 

In the era of advancement of Information Technology and digitalization,  the State Govt. is adopting e-governance system  to make the administration accessable  to the people.  The Central Information Commission is hearing the cases through video- hearing. Earlier, Odisha Information Commission was hearing the cases through video-conferencing. But since last few years ,  it has been stopped.   The State  Government  can take steps  to ensure  conducting of t video-hearing and audio-hearing of the cases of the complainant/ appellant.   

 

 

Prepared  by

Pradeep Kumar Pradhan, on behalf of Odisha Soochana Adhikar Abhijan ( OSAA), a state-level forum leading campaign  for effective implementation of RTI Act in the state.

M-9937843482

Email-odishasoochanaadhikar@gmail.com

  

Shree Mandir Parikrama Project Activities

 

List of Projects undertaken for Shree Mandir Parikrama Project

RTI Application was  filed  to  OBC&C limited  seeking information about details of projects  undertaken in and around Jagannath temple, Puri under Sri Mandir Parikrama Project and other projects during period of 2016-17 to 2022-23. On 3.2.23, the PIO  supplied the information which is as follows.

·        Total amount of Rs. 1300 crore has been sanctioned for multiple projects  under ABADHA Scheme.

·        Outside contractors  are  seen biggest  beneficiary of the project as they have been awarded  maximum  work  for  these  projects.

·        90 %  of  fund sanctioned  to outside  contractors  to carry out  the project.

·        This is  a new trend in Odisha  during present regime  that  outside  contractors are seen more involved  in  contractry  work  in Odisha .

List of Projects undertaken for Shree Mandir Parikrama Project

Sl.	Name of the project	Name of Executant agency	Contract No.	Cost of Project (Rs.)
1	Shree Mandir Parikrama Project  in the Heritage City of Puri under ABADHA Scheme  of Government  of Odisha	TATA Projects Limited	07/Turnkey-Lump/21-22	331,28,,18,865.00
2	Redevelopment of Municipal Market on Bada Danda , Puri	M/s Acharya Brothers Construction Pvt. Ltd. HIG-218, BDA Duplex Colony, Baramunda, Bhubaneswar	Turnkey Contract Package No. PU/AB/03	40,40,40,400.00
3	Construction of Multilevel Car Parking  at Jail Road , Puri	M/s P.D. Agarwal, 2nd Floor, Dhillon Complex, Raipur - 592001, Chhatisgarh	Panckage No. PU/AB/02	67,62,85,195.00
4	Construction of Jagannath  Ballav Pilgrim Centre, Market Complex and Shree Setu along with extension  of MUSA River  at Puri on lump sum turnkey basis  under ABADHA Scheme  of Govt. of Odisha	NCC Limited, Hyderabad	01/Turnkey-Lump Sum/2020-21	461.25 crore
5	Beach Road development  and Extension  including  Acharya Harihar Square  Redevelopment  Construction  of MLCP at Digabareni Chhak and Construction  of on-ground  parkings  at Jatrika  and Sipasurubali Projects  in the Heritage City of Puri Under ABADHA Scheme	M/s B.C. Bhuyan Construction Pvt. Ltd.	17/Turnkey-Lump Sum-2022-23	102,40,00,000.00
6	Guest House for different group of pigrims such as Construction of Dharmashala  at Baselisahi  in the Heritage  City of Puri  under ABADHA Scheme	M/s  Shreejikrupa Project Limited , Raipur Chhatisgarh	Turnkey-Lump Sum/22-23	135,60,00,000.00
7	Development of Housing Projects for Sevayats at Matitola and Exhibition  cum Parking Area at Samang in the Heritage  City of Puri  under ABADHA Scheme	M/S Dillip Construction (P) Ltd. B 57, Candala Ind. Estate, Patiaya,Bhubaneswar - 751003	Turnkey-Lump-Sum-22-23	65,40,03,210.00
8	Development of Heritage Lake  such as Sweta Ganga, Markandeya, Narendra  and Indradyumna in the heritage City of Puri  under ABADHA Scheme	M/s Acharya  Brothers Construction Pvt. Ltd.	Turnkey-Lump Sum-22-23	66,66,67,767.00
9	Development of Odia University  at Satyabadi , Puri	M/s Acharya Brothers Construction Pvt. Ltd.	Turnkey-Lump Sum/21-22	30,30,30,300.00
10	Development of Pandit Utkal mani Gopabandhu Das Birth Place			15,32,77,329.00
	Total			1316,26,23,066.00

 

Pradip Pradhan

Date- 18.2.23

What is Fiduciary Relationship under RTI Act

FIDUCIARY RELATIONSHIP UNDER RTI ACT 2005 One of the reasons for declining information is fiduciary relationship. Section 8(1)(e) of RTI Act 2005 reads as under: Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,- “Information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants disclosure of such information” Black’s Law Dictionary describes a fiduciary relationship as “one founded on trust or confidence reposed by one person in the integrity and fidelity of another.” To qualify for information as held under fiduciary relationship, it should have following ingredients: 1. Information should have been given to public authority voluntarily by the giver of information. Giver must have choice whether to give or not and to whom it should be given. 2. Information should not have been given to public authority under compulsion or compliance of any law or rule. 3. Information should have been given to public authority for using it for the benefit of its giver. 4. Information should have been given in utmost trust, confidence and faith by giver in the receiving public authority. Some of the examples of fiduciary relationship are: Litigant-lawyer, patient-doctor, investor-financial advisor, client-bank, beneficiary-trustee, ward-guardian, attorney-principal, director-shareholder parent-child, insured-insurer etc Following information held by public authority of third party cannot be said to be held in fiduciary relationship if: A] It is given to public authority under compliance of any law or rule [e.g. Income Tax Act, customs act, VAT, etc]. B] Giver has no choice but to give information to public authority. C] Information is not given voluntarily by giver to public authority. D] Information was not to be used for the benefit of giver by public authority. E] information is not given in trust, confidence and faith in public authority. E] it is in larger public interest to disclose, even if held under fiduciary relationship. Important CIC decisions & judgements on fiduciary relationship: i] CIC/AT/A/2008/01238 dated 07-06-2010 ii] CIC/SM/A/2010/001634/SG/14617 dated 15-09-2011 iii] CIC/SM/A/2011/001376/SG/15684 dated 15-11-2011 iv] Judgement dated 30-08-2010 of High Court of Kerala at Ernakulam in WP(C).No. 6532 of 2006(C) -1. TREESA IRISH, W/O.MILTON LOPEZ Vs CENTRAL PUBLIC INFORMATION OFFICER v] Judgement of Full Bench of High Court of Delhi, in Secretary General Supreme Court of India V Subhash Chandra Agarwal, L.P.A. No. 501/2009. The above material can be used in first or second appeal. Compiled by: J P Shah, 9924106490 jpshah50@yahoo.co.in on 07-08-2012 Pradip Pradhan M-9937843482 Date-5.3.16

Joint statement by RTI and privacy activists on the amendments to Section 8(1)(j) of the RTI Act in context of proposed Data Protection Bill

Joint statement by RTI and privacy activists on the amendments to Section 8(1)(j) of the RTI Act proposed by the Committee of Experts under the Chairpersonship of Justice B. N. Srikrishna The Right to Information (RTI) and the Right to Privacy (RTP) are fundamental rights flowing from the Indian Constitution. The State has an obligation to protect and promote both rights. To strengthen democracy and constitutional freedoms, it is critical that the two rights be carefully balanced. The Justice Srikrishna Committee, tasked with drafting the Data Protection Bill was therefore expected to develop a framework harmonizing the need to protect certain kinds of personal data with the provisions of the Right to Information Act, 2005, which lays out the statutory framework for Indian citizens to access information, including personal information. However, the Draft Data Protection Bill, 2018 (DPB) prepared by the committee, fails to safeguard and balance the two. If accepted, the amendments proposed to the RTI Act, 2005 through the DPB will severely restrict the scope of the RTI Act and adversely impact the ability of people to access information. Section 8(1)(j) of the RTI Act, 2005 states: “8. (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,- xxx (j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:” However, the exemption is not absolute and information has be disclosed if it is such that cannot be denied to the Parliament or a State Legislature (proviso to 8(1)), if public interest in disclosure outweighs the harm to the protected interests (section 8(2)) or if the information relates to any event or matter which has taken place twenty years ago (section 8(3)). The Justice Srikrishna Committee has proposed that Section 8(1)(j) be amended to read as follows1: “8. (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,- xxx (j) information which relates to personal data which is likely to cause harm to a data principal, where such harm outweighs the public interest in accessing such information having due regard to the common good of promoting transparency and accountability in the functioning of the public authority; Provided, disclosure of information under this clause shall be notwithstanding anything contained in the Personal Data Protection Act, 2018; Provided further, that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Explanation: For the purpose of this section, the terms “personal data” , “data principal” and “harm” shall have the meaning assigned to these terms in the Personal Data Protection Act, 2018.” Currently, in order to invoke section 8(1)(j) to deny personal information, atleast one of the following grounds has to be proven- information sought has no relationship to any public activity; or information sought has no relationship to any public interest; or information sought would cause unwarranted invasion of privacy and PIO/appellate authority is satisfied that there is no larger public interest that justifies disclosure. By replacing this with the proposed formulation that personal information would be exempt if it can be shown that disclosure is likely to cause harm and such harm outweighs public interest, the DPB seeks to severely curb the disclosure of information. It is crucial to note that the proposed amendments refer to a mere possibility of harm, rather than a reasonable certainty. Further, the definition of the term “harm” which is sought to be applied to section 8 of the RTI law, is very broad. This would have a chilling effect on the RTI Act. The term “harm” is defined as “(i) bodily or mental injury; (ii) loss, distortion or theft of identity; (iii) financial loss or loss of property, (iv) loss of reputation, or humiliation; (v) loss of employment; (vi) any discriminatory treatment (vii) any subjection to blackmail or extortion; (viii) any denial or withdrawal of a service, benefit or good resulting from an evaluative decision about the data principal; (ix) any restriction placed or suffered directly or indirectly on speech, movement or any other action arising out of a fear of being observed or surveilled; or (x) any observation or surveillance that is not reasonably expected by the data principal.” Finally, the scope of the public interest test within the proposed section 8(1)(j) appears to have been narrowed, by restricting it primarily to the promotion of transparency and accountability in the functioning of a public authority, as opposed to a more expansive understanding of public interest in terms of upholding constitutional values of social justice, welfare and democratic rights of citizens. The proposal to amend the RTI Act through the Data Protection Bill, 2018 appears to have been hastily drafted based on an incorrect understanding of the RTI law. For instance, the Justice Srikrishna committee seems to have erred in interpreting the proviso to section 8(1), which states that “information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”, as being only applicable to section 8(1)(j) and not to the whole of section 8(1). A perusal of the original gazette notification of the RTI Act2 shows that by virtue of its placement and indentation, it is applicable to all of section 8(1) and not merely section 8(1)(j). There are several judicial pronouncements3 to this effect. The amendments proposed to the Right to Information Act, 2005 through the Data Protection Bill, 2018 drafted by the Justice Srikrishna Committee will fundamentally weaken the RTI Act for the reasons highlighted above. It is pertinent to note that since the constitution of the Justice Srikrishna Committee, many of us have highlighted our concerns related to the lack of diversity in the composition4 of the committee and also the lack of transparency5 in the functioning of the committee. Proper composition of the committee and transparency in its functioning were crucial to ensure that a robust regime for data protection was created without undermining peoples’ right to information. We believe that the legal framework for privacy and data protection should complement the RTI Act and in no way undermine or dilute the existing statutory framework that empowers citizens to hold power structures to account. The provisions of the Draft Data Protection Bill need to be suitably amended and harmonized with the provisions and objectives of the RTI Act. This would be in line with the recommendation of the Justice A.P. Shah Report on Privacy (2012) that, “The Privacy Act should clarify that publication of personal data for in public interest, use of personal information for household purposes, and disclosure of information as required by the Right to Information Act should not constitute an infringement of Privacy.” Neither the recognition of the Right to Privacy, nor the enactment of a data protection law, requires any amendment to the existing RTI law. We, therefore reject the amendments proposed to the Right to Information Act, 2005 in the Data Protection Bill, 2018 drafted by the Justice Srikrishna Committee Signed for Save Our Privacy by Vrinda Bhandari, Naman M. Aggarwal, Gautam Bhatia and Raman Jit Singh Chima. Signed for National Campaign for Peoples’ Right to Information (NCPRI) by Anjali Bhardwaj, Venkatesh Nayak, Nikhil Dey, Rakesh Dubbudu, Ashish Ranjan, Pradip Pradan, Rakshita Swamy, Sai Vinod and Nachiket Udupa. 1No amendment is sought to be made to sections 8(2) or 8(3) of the RTI Act. 2https://cic.gov.in/sites/default/files/RTI-Act_English.pdf 3See judgment in Union of India & Ors. Versus Col. V.K. Shad WP (C) 499/2012 by the Delhi HC; Hindustan Petroleum Corporation Ltd. Versus The Central Information Commission and Ors. Civil Writ Petition No. 1338 of 2011 by the Punjab & Haryana HC; The Registrar General vs R.M.Subramanian on 14 June, 2013 by the Madras HC 4The Committee had a preponderance of members who have voiced, or echoed views, that seem to support Aadhaar and did not include any individuals with expertise in the field of RTI – Letter sent to Committee about this. 5Crucial information, including minutes of meetings of the Committee and presentations and submissions made to it, were not proactively disclosed and were in fact denied to citizens in violation of the provisions of the RTI Act. - Letter to Minister Ravi Shankar Prasad about this.

Memorandum for Dismissal of Bikram Senapati, Odisha Information Commissioner

To Sri Jalada Kumar Tripathy State Chief Information Commissioner, Odisha, Toshali Bhawan ,Satyanagar Bhubaneswar Sub- Seeking an inquiry into allegation of misbehavior, harassment, show of arrogancy and use of filthy language to the complainants/ appellants during hearing of Complaints/ Second Appeals by Sri Bikram Senapati, State Information Commissioner and initiate legal proceedings against him under section 15 (1) of the RTI Act and recommend to Hon’ble Governor, Odisha for his dismissal under section 17 of the RTI Act. Respected Sir With due respect humble and submission , we the RTI Activists having allegiance to Odisha Soochan Adhikar Abhijan, ( a state level RTI forum leading campaign for effective implementation of RTI Act in Odisha ) gather together while conducting protest Dharana on 2.12.22 at Toshali Bhawan, Bhubaneswar and draw your kind attention the following allegation against Sri Bikram Senapati ,State information Commissioner for your urgent intervention and necessary action. Sir, Sri Bikram Senapati, joined as State information commissioner on 09.09.2020 at Orissa Information Commission. During his incumbency period since 2020 till date, he has disposed of around more than 95 % of cases without imposing penalty and ensuring information to the information-seekers. As we have experienced, during hearing of the cases, neither he listens appellant pleasantly and calmly nor does allow them to complete their argument properly . Even from ab initio he has maintained same strategy to misbehave information seekers during argument, encourage PIO not to furnish information , argue in favour of defaulting PIO , threaten information seeker using slang language , ask appellants to move high court against his mischief and disposal of cases without any penalty and non-supply of information . Many times he like anti-social uses very filthy and unconstitutional language to the appellant and senior citizens. Like other Information Commissioners, he is not sociable and behaves as criminal. During hearing without looking at the information need of the information seekers, he simply asked and made query like “why you had applied for information? What will you do with this information? You people are making deals to get money by filling multiple RTI Applications, who said you to seek information” and continues to misbehave and threaten them. He always discourages appellant not to ask information to various Govt offices and asks the reason for seeking information. He has very hatred attitude towards Dalit Community and makes caste aspersion using abusive languages against them. Here we are citing some of his cases where Sri Bikram Senapti disposes case in a most callous and dishonest way without ensuring information to the appellant a. Case No- S.A. 2325/2020, dt 02.11.2022 - Appellant Amuly Kumar Majhi , an RTI activist and belongs to depressed section of society. During hearing of his case Bikram Senapati asks him with loud voice to get out from his chamber as you have already received some information. When Sri Majhi insisted for complete information, Mr. Senapati abused him with vulgar language saying you are pimp, collecting money for maintaining your family, rascal, how dare you to argue with me. You don’t have other work to do instead seeking information? Who said you to seek information ? How many corruption you have exposed collecting information, come with that then I will order for complete information. He abuses him in the name of his caste and casteist remark. Amulya Majhi has lodged an FIR against Bikram Senapati at Kharvel Nagar Police Station, Bhubaneswar seeking an inquiry into the allegation. He has also filed a petition before Hom’ble Governor, Odisha seeking action against Sri Bikram Senapati. b. Case No. SA.1507/2020, dt.30.06.2022 - RTI Activist Prakash Das appeared on behalf of appellant Sri Akshaya Prusty . During hearing Sri Senapati said that he would not hear any case even single word from you. When Prakash Das asked about the reason, he said wont record any statement from you and reason is well known to you and me. Again when Prakash Das asked whether any decision had been taken not to hear my cases, Mr Senaapti said I instructed means you have to leave without any rhyme & reason. Main intention behind his misbehavior is that Prakash Das has earlier heard two cases before him vide CC. 158/2020 & 159/2020 where Bikram Senapati arbitrarily disposed off his case without any penalty and misbehave him willfully. c. Case No. SA.1440/2020 , dt 30.06.2022 where appellant was Dusmanta Narayan Acharya .He was fighting his case of Second Appeal against denial of information by the PIO, Office of ICDS office ,Rajkanika of Kendrapara district . During his hearing Bikram Senapati took the side of defaulting PIO supporting his argument. To counter Mr Senapati’s dig at him, he presented his argument, but Bikram Senapati misbehaved him and used derogatory words against Sri Dusmanta. Even he threatened Dusmanta to dare to move to high court and supreme court and President of India against his Order. He said no one will do anything against him. I will do whatever I want. Without ensuring information, he disposed off this case. d. Case No. SA. ……………………..dt………………….where appellant was Sanjay Mohapatra . He was heard second appeal case about a primary school near by his house. RTI Activist Srikant Pakal was present with him to assist him. When Sanjaya Mohapatra presented his argument of not getting complete information and Srikant Pakal endorsed Mohapatra’s view stating most and priority duty of Information Commissioner is to first ensure information . but Mr senapati argued when PIO said he had given information. Sri Senapati said when information is supplied why you are arguing with me. then whya re you arguing with me . Mr Senapati neither verified the information and nor tried to understand the concern of appellant. Rather Mr Senapati misbehaved Srikant Pakal and Sanjaya Mohapatra both . Threatened to get out from the court. Even in his order Mr Senapati disposed of case with the order that Mr Pakal had threatened him of dire consequence during hearing, without any action and penalty. He disposed off the case with no order except allegation against appellant. e. Similarly in case of RTI Activist Manoran Jena , Jitendra Sahoo from Cuttack , Ashok Dutta from Balasore , Praksh jena from Bhadrak and many other activists , Bikram Senapati disposed off the case with allegation against appellant citing petty reason and misbehaved them. He also scolded appellant with derogatory words and unparliamentarily language , threatened them to go and file case in High Court, endorsing view of defaulter PIO and advocating in support of them . As an Information Commissioner, Mr Bikram Senapati does not have minimum respect to Right to Information act and its rule, never referred various orders of CIC and other information Commissioners. He has never delivered a single exemplary order where a defaulter PIO and appellate authority will take it serious and congnisance against him . Out of his total disposal of SA & Complaint cases, in more than 95% of cases he disposed off all case without penalty and ensuring information. Even in many order, he has levelled allegation against appellant without delivering the order as per the act to be framed for a commissioner. Every day he misbehaves and shouts with shroud voice to gullible information-seeker . suggested them to move to High court against him, warning them with dire consequence and not to use RTI act against Govt . He levelled RTI activists as blackmailer , tarnished their image with derogatory words . everyday many complaints are raising against him . Hence we request your Good office to conduct an inquiry against his all disposal cases and his conduct as an information commissioner under section 15 (1) of the RTI Act. We also request you to recommend to Hon’ble Governor, Odisha for dismissal of Sri Bikram Senapti from the post of State Information Commissioner under section 17 (3)(d) of the RTI Act Yours sincerely Members of Odisha Soochana Adhikar Abhijan ( OSAA) Date- 2.12.22

Personal Data Protection Bill will amend RTI Act

https://www.livelaw.in/news-updates/digital-personal-data-protection-bill-proposes-to-amend-rti-act-to-completely-bar-disclosure-of-personal-information-214573

Frontline Story on RTI

https://frontline.thehindu.com/the-nation/right-to-information-act-losing-its-sheen-with-weakened-machinery-for-its-implementation/article66115118.ece RTI Act losing its sheen with weakened machinery for its implementation ASHUTOSH SHARMA Print edition : Nov 24, 2022 When the Right to Information (RTI) Act came into force on October 12, 2005, it was hailed as the “sunshine law” which would make governments transparent and accountable besides empowering citizens through their enhanced participation in democratic processes. Sadly, the shine has since faded and public-spirited RTI users are a disillusioned lot today. Targeted attacks, threats, and false criminal cases are what they have to deal with now on a regular basis. “Of all the risks and assaults what is most painful is the misnomer that RTI activists are ‘blackmailers’,” said Amra Ram, a 30-year-old RTI activist from Rajasthan’s Barmer district. He faced a brutal assault in December 2021—his hands and legs were broken and pierced with nails. The provocation, according to reports, was his sustained work exposing corruption in projects granted under the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) in Kumpaliya panchayat. Almost one year after the attack on him, said Ram, “the police are yet to nab half the accused persons”. Kavita Srivastava, national president of the People’s Union for Civil Liberties (PUCL), said: “Over the past 10 years, more than a dozen RTI activists have been brutally attacked in Rajasthan alone. And yet it is not an issue for political parties.” According to Nikhil Dey, founding member of Mazdoor Kisan Shakti Sangathan and National Campaign for People’s Right to Information (NCPRI), more than 100 RTI users have been murdered all over India in the 17 years since the Act came into being. Activists shout slogans during a protest against the amendments to the RTI Act in New Delhi in 2019. Activists shout slogans during a protest against the amendments to the RTI Act in New Delhi in 2019. | Photo Credit: MONEY SHARMA Recently, Satark Nagrik Sangathan (SNS), a citizens’ group working to promote transparency and accountability in governance, released a report on the performance of Information Commissions. “The law has initiated the vital task of redistributing power in a democratic framework,” wrote Anjali Bhardwaj and Amrita Johri, activists associated with the SNS and NCPRI, in the report. An estimated 60 lakh RTI applications are filed in India annually, said the report. “The (COVID-19) pandemic, coupled with high levels of unemployment and rising inflation, has made millions of families more dependent on the government for delivery of basic goods and services than ever before,” it pointed out. Increasing backlog The report reveals that at least two State Information Commissions (SIC)—Jharkhand and Tripura—were defunct as new commissioners have not been appointed upon the incumbents demitting office. Additionally, as many as four commissions were headless—the SICs of Manipur, Telangana, West Bengal, and Andhra Pradesh. Maintaining that the backlog of appeals and complaints has been steadily increasing, the SNS study stated that 3,14,323 appeals and complaints were pending as on June 30, 2022, in the 26 Information Commissions. When it came to the average monthly disposal rate and pendency in commissions, the West Bengal SIC would take an estimated 24 years and 3 months to dispose a matter, the report stated. “In Odisha and Maharashtra SICs, estimated time for disposal is more than five years and in Bihar more than two years,” it said. Notably, the commissions did not impose penalties in 95 per cent of the cases where penalties were potentially imposable. Flourish logoA Flourish map “The functioning of commissions is a major bottleneck in the effective implementation of the RTI law,” the report noted. “Large backlog of appeals and complaints in many commissions across the country have resulted in inordinate delays in disposal of cases, which render the law ineffective. Commissions have been found to be extremely reluctant to impose penalties on erring officials for violations of the law. Unfortunately, the transparency watchdogs themselves have not had a shining track record in terms of being transparent and accountable to the people of the country.” ALSO READ: ‘RTI helped change the culture of governance’ In Jammu and Kashmir, official claims regarding clean and efficient governance after the revocation of the special status of the erstwhile State seem misplaced in the context of the RTI Act. Unlike the Central law, the repealed Jammu and Kashmir RTI Act, 2009, had provisions that mandated the SIC to decide RTI appeals within 60 to 120 days. “Under the Central Information Commission (CIC), disposal of appeals is taking an unusually long time,” said Raja Muzaffar Bhat, chairman and founder of J&K RTI Movement. “Since the Union Territory doesn’t have an SIC, all RTI appeals from UTs are listed before the CIC in New Delhi. My own RTI second appeal could be listed before the CIC early this year after 13 months,” he said. “The SNS report stated that 3,14,323 appeals and complaints were pending as on June 30, 2022, in the 26 Information Commissions.” Bhat said that with the revocation of Jammu and Kashmir’s special status, “the mindset of government officials too has changed since the J&K SIC has been shut down. Also, the government has not held any orientation programme or training workshop for its officers and citizens on the RTI Act 2005.” Defamation cases Pradip Pradhan, national co-convener of NCPRI and convener of the Odisha Soochana Adhikar Abhijan (OSAA), a forum of RTI activists, said that to check growing activism, the Odisha Information Commission had filed defamation cases against two RTI activists in the civil court in Bhubaneswar. “The attack on RTI activists in Odisha is part of a well-thought-out plan to render the Act dysfunctional. The state machinery and mafias are working in tandem to tarnish their image and belittle their work,” Pradhan said. “Several RTI activists pay the price for their activism as they are subjected to humiliation, threats of arrest, and false and fabricated legal cases,” he added. On March 27, 2021, Sarbeswar Behura, 52, a member of OSAA, was critically injured when bombs were hurled at his car. Rilu Behura, Sarbeswar’s wife, went to Dharmashala police station the next day along with Pradip Pradhan and RTI activists Srikant Pakal and Jitendra Sahu, to register a case, but the police refused and said they had registered a case on their own. “Behura has been attacked twice in the past. Though he filed FIRs, the police did not take any action,” Pradhan said. Flourish logoA Flourish chart Ram and Behura escaped with their lives. Many are not so fortunate. Ranjan Kumar Das of OSAA was murdered on January 31, 2020. In Madhya Pradesh, RTI activist Ranjeet Soni was shot dead on June 2, 2022. Reportedly, he regularly sought information about government expenditure on infrastructure development, hospitals and welfare schemes. In Barmer, RTI activist Jagdish Goliya, 47, died in police custody in 2019 after he was arrested over a land dispute. “Though he had suffered serious internal injuries, he wasn’t taken to hospital,” said Kavita Srivastava. “Those who try to expose corruption end up being slapped with false police cases. But we hardly see any action against the perpetrators who threaten and harass RTI users,” she added. Regarding vindictive FIRs filed against RTI users, Justice (retired) Madan B. Lokur said: “In most cases, they are falsely booked under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act or slapped with molestation charges. In such cases, it becomes difficult to get bail.” Reduced power Lokur said financial compensation should be provided in cases where RTI activists are murdered, attacked, or persecuted. Despite the Supreme Court’s clear directions, the police often delay filing FIRs on receiving complaints from persecuted RTI activists, he pointed out. “Even in cases where FIRs are registered, action is rarely taken against the real conspirators. Only henchmen are prosecuted,” he said. Incidentally, the Whistle Blowers Protection Act, 2014, notified on May 12, 2014, has not been implemented so far. The law, according to the Union Ministry of Personnel, Public Grievances and Pensions, needs amendments to bar disclosures affecting sovereignty and integrity of India. Pradhan said that instead of waiting for the Centre to implement the Act, “State governments should bring in their own laws for the protection of whistle-blowers and their families.” Through the Draft RTI Rules 2017, the Narendra Modi government proposed that proceedings relating to an RTI query should automatically stop if the applicant dies during the pendency of an appeal before the CIC. “We fought against this proposal and didn’t let it get implemented,” said Dey. Following the mysterious death of RTI activist Ravinder Balwani, the CIC had moved a resolution in 2011 that read: “If the Commission receives a complaint regarding assault or murder of an information seeker, it will examine the pending RTI applications of the victim and order the concerned Department(s) to publish the requested information suo motu on their website as per the provisions of law.” The resolution said governments must take steps for the protection of RTI users. “This resolution should be firmly implemented by the CIC and SICs. It will send out a message that the issues won’t die down in case you kill an RTI user or one dies because of any other reason,” Dey said. Clearly, there is a strong need to strengthen the RTI law to fulfil its objectives. RTI crusaders feel that the opposite is happening. In 2019, the Right to Information (Amendment) Act was passed without any discussion in Parliament. The amendments not just undermined the position of the CIC and the SICs but also made them subservient to the government. ALSO READ:Diluting the RTI Commenting on the changes, social activist Aruna Roy accused the ruling Bharatiya Janata Party of weakening the RTI movement. “Amendments to the RTI in 2019 mark a watershed in successive governments’ attempts to dilute the Act. The BJP government prevailed over citizens’ resistance against weakening the law. It strategically reduced the power and independence of Central and State Information Commissions and brought both the bodies under its control,” Roy said, adding, “The RTI movement continues. But the machinery for the implementation of the law has been weakened, severely diluting democratic practice in India.” On September 9, 2021, a group of 15 sitting and retired Information Commissioners wrote to the then Chief Justice of India (CJI), N.V. Ramana, complaining that High Courts were staying the orders of Information Commissioners. The letter requested CJI Ramana to direct the courts not to entertain pleas against orders passed by the CIC and SICs. Former Central Information Commissioner Shailesh Gandhi told Frontline: “The letter elicited zero response. The situation hasn’t changed. And this is in violation of the [RTI] law.” On complaints regarding delayed responses to pleas concerning life and liberty issues (except sensitive criminal matters), where information is to be provided within 48 hours of receiving an application filed under Section 7 (1) of the RTI Act, Gandhi said: “Governments seem incapable of implementing the law.” The Crux Right to Information (RTI) Act came into force on October 12, 2005. RTI users are a disillusioned lot today. Targeted attacks, threats, and false criminal cases are what they have to deal with now on a regular basis. Recently, Satark Nagrik Sangathan (SNS), a citizens’ group working to promote transparency and accountability in governance, released a report on the performance of Information Commissions. The SNS study stated that 3,14,323 appeals and complaints were pending as on June 30, 2022, in the 26 Information Commissions. The Whistle Blowers Protection Act, 2014, notified on May 12, 2014, has not been implemented so far. There is a strong need to strengthen the RTI law to fulfil its objectives.