Analysis Of Right to Information Rules, 2010

This is my Opinion regarding the Right to Information Rules, 2010:

(1) Request for Information U/S 6(1) Of Act: A person, who desires to obtain any information from a public authority under sub-section (1) of Section 6 of the Act, shall pay an application fee of Rs. 10/- to the public authority alongwith the application;

Provided that the request for information shall relate only to one subject matter and shall be limited to two hundred and fifty words, excluding the address of the Central Public Information Officer and the address of the applicant.

Opinion: In my opinion this is a retrograde step in a backward direction. Firstly, the Proviso is limiting information seeking to a “Single Subject” only. At times subjects for which information is required are so interrelated and diverse in nature that it is neither feasible nor possible to limit them to a single category.

Similarly, the limiting of the number of words to 250 is also “Not Desirable” as it would compromise the nature of information sought. Of course, an applicant cannot ask for information in hundreds of pages but at times it becomes pertinent to ask information in many pages.

Suggestion: The Proviso is a serious “Embargo” upon information seeking and should be reconsidered.

(2) Fees for providing information: Fee for providing information under Section 4(4), Section 7 (1) and Section 7 (5), as the case may be, shall be charged at the following rates:

(a) rupees two for each page in A-3 size or smaller size paper;
(b) actual cost or price of a copy in larger size paper;
(c ) actual cost or price for samples or models;
(d) for inspection of records, no fee for the first hour; and fee of rupees five for each subsequent hour (or fraction thereof);
(e) for information provided in diskette or floppy, rupees fifty per diskette or floppy;
(f) for information provided in printed form, at the price fixed for such publication or rupees two per page of photocopy for extracts from the publication;
(g) the actual amount spent by public authority on hiring a machine or any other equipment, if any, to supply information;
(h) Postal charges, in excess of rupees ten, if any, involved in supply of information.

Provided that no Fee shall be charged under this rule from the persons who are below poverty line as may be determined by respective State Governments.

Opinion: Charging of fees on the basis of actual amount spent by a public authority on hiring a machine or any other equipment, if any, to supply information is “Not Rationale”. Every Public Authority is supposed to have “Complete Infrastructure” like Printers, Scanners, Photo Copiers, etc at its place. It would be absurd to suggest that Indian Government would not or have not yet provided the required Infrastructure to these Public Authorities.

Suggestion: This Clause need to be removed from the Rules.

Opinion: For inspection of records, no fee for the first hour; and fee of rupees five for each subsequent hour (or fraction thereof). This is a good provision and it should be implemented in “True Letter and Spirit”. In many cases there is no need of any documents or the quantity of documents can be reduced to a considerable amount, if proper inspection is allowed. This would also reduce the burden upon Public Authorities.

Opinion: The Proviso also specifies that no Fee shall be charged under this rule from the persons who are below poverty line as may be determined by respective State Governments. This is a “Very Sensible” provision and is a “Welcome Addition”.

(3) Payment of fee: Fee under these rules shall be paid by way of cash, demand draft or bankers cheque or Indian Postal Order, etc to relevant officer of the public authority. Even electronic means are also available if facility for receiving fee through electronic means is available with the public authority.

Provided that a public authority may accept fee by any other mode of payment.

Opinion: The “Modes of Payment” of fees are good to effectuated information seeking by the Applicants. Even electronic payment facility has been prescribed if the Public Authority has an infrastructure for the same. The best part of this arrangement is that the Public authority may accept fee by any other mode of payment. This is an “Enabling Provision” and Welcome Step.

(4) Admission of Appeals: (1) On receipt of an appeal, if the Commission is satisfied that it is a fit case for consideration, it may admit such appeal; but where the Commission is not so satisfied, it may, after giving an opportunity to the appellant of being heard and after recording its reasons, reject the appeal.

(2) The Commission shall not admit an appeal unless it is satisfied that the appellant had availed of all the remedies available to him under the Act.

(3) For the purposes of sub-rule (2), a person shall be deemed to have availed of all the remedies available to him under the Act:

(a) if he had filed an appeal before the First Appellate Authority and the First Appellate Authority or any other person competent to pass order on such appeal had made a final order on the appeal; or

(b) where no final order has been made by the First Appellate Authority with regard to the appeal preferred, and a period of 45 days from the date on which such appeal was preferred has expired.

Opinion: This Rule needs to be “Reconsidered” especially Sub Rule (2). It seems to be in conflict with other Provisions and Powers of the Central Information Commission under the Act.

(5) Procedure for Deciding Appeals: The Commission, while deciding an appeal may,

(i) receive oral or written evidence on oath or on affidavit from concerned or interested person;
(ii) peruse or inspect documents, public records or copies thereof;
(iii) inquire through authorized officer further details or facts;
(iv) hear Central Public Information Officer, Central Assistant Public Information Officer or the First Appellate Authority, or such person against whose action the appeal is made, as the case may be;
(v) hear third party; and
(vi) receive evidence on affidavits from Central Public Information Officer, Central Assistant Public Information Officer, First Appellate Authority and such person against whom the appeal lies or the third party.

Opinion: This is a Good Rule and it must be incorporated.

(6) Amendment or withdrawal of an Appeal: The Commission may allow a prayer for any amendment or withdrawal of an Appeal during the course of hearing, if such a prayer is made by the Appellant on an application made in writing.

Provided that such request shall not be entertained by the Commission after the matter has been finally heard or a decision or order has been pronounced by the Commission.

Opinion: This is a Good Rule and it must be incorporated.

(7) Personal presence of the appellant before the Commission: (1) The appellant shall be informed of the date of hearing at least seven clear days before that date.

(2) The appellant may, at his discretion, be present in person or through his duly authorized representative or, if permitted by the commission, through video conferencing, at the time of hearing of the appeal by the Commission.

(3) Where the Commission is satisfied that the circumstances exist due to which the appellant is being prevented from attending the hearing of the Commission, then, the Commission may afford the appellant another opportunity of being heard before a final decision is taken or take any other appropriate action as it may deem fit.

Opinion: This is a Good Rule expecially the use of Video Conferencing Facility by the Commission. Effective use of E-Governance is presently missing from RTI Act, 2005 and under other Laws and it is high time for the Government of India to make it “Mandatory”

(8) Service of notice by Commission: Notice by name to be issued by the Commission may be served in any of the following modes, namely:-
(i) service by the party itself;
(ii) by hand delivery (dasti) through Process Server;
(iii) by registered post with acknowledgement due;
(iv) by electronic mail in case electronic address is available.

Opinion: Use of E-Mail as a Mode of Service of Notice by Commission is a welcome step and good provision.

(9) Compliance of the order of the Commission: The head of a public authority shall ensure that an order passed by the Commission, unless varied or stayed by a validly passed order, is complied with and compliance report filed with the Commission within the time limit specified by the Commission, or within 60 days if no such limit is specified.

Opinion: This is a Good Rule and it must be incorporated.

CORE RECOMMENDATION: Both RTI Act 2005 and Rules made thereunder must be “Thoroughly Amended”. The RTI Act 2005 needs many “Pro Active Amendments” that would make it more Effective, Transparent and Accountable. The RTI Act, 2005 also needs to be “Reconciled” with other Laws.

Supreme Court Of India Must Expand Privacy Rights In India

Enactment of suitable Privacy Laws in India is long overdue. However, the Government of India has not considered this issue to be important enough.This is so even if Projects like Aadhar, NATGRID, CCTNS, etc may be declared to be “Unconstitutional” by Constitutional Courts of India. The matter is pending before the Supreme Court and this occasion can be utilised by it for prescribing “Stringent and Suitable” Privacy Rights Guidelines.

Few things related to 2G Scam have happened in the right perspective so far at the Supreme Court of India. The questioning of Supreme Court regarding inaction on the part of Prime Minister’s Office (PMO) India, giving due credit to the CAG’s Report, accepting Ratan Tata’s Writ Petition regarding Privacy Rights Violation, etc are some of them.

The latest to add to this list is denial of Supreme Court to issue any “Interim Relief” in the Tata’s Writ Petition and issuing of notices to open and outlook magazines which had published contents of the alleged taped conversation.

Tata had sought an interim relief for restraining the respondents from further publication of recorded conversations between him and Radia. He also sought an Injunction that would prevent the publishing and circulation of the contents of these conversations in “Any Form”. However, is it possible and does it make any difference at this stage?

The answer seems to be in Negative although Tata may not like the same. This is because contents of conversations are already out in “Public Domain” and on multiple traditional and electronic mediums and platforms. It is not possible for the Supreme Court of India or even for the Government of India to do much at this stage and in this regard.

However, one aspect has skipped the attention of all parties to the Writ Petition and even of the Supreme Court. The sole purpose of Ratan Tata seems to be to protect “His Privacy Rights” by preventing the “Disclosure and Circulation” of conversation or communication recorded through “Surveillance Methods” of State machinery. At this stage this concern and demand seems to be “Infructuous” and “Academic Purpose” only. This is because even if Supreme Court of India provides the “Relief” that Tata is claiming “In Toto”, the “Contents” of the conversation would remain on Internet and this is next to impossible to remove.

There is a blessing in disguise in Tata’s Petition. This is a golden chance for the Supreme Court of India to analyse the “Implementation” of its decision in the PUCL case (Phone Tapping Case). The Supreme Court must “Widen” the scope of Privacy Rights in India not only in the context of Phone Tapping but in an “Overall Manner”. The Supreme Court must formulate and lay down the widest possible “Guidelines” regarding Privacy Protection in India as it has done in the Vishaka’s Case (Guidelines against Sexual Harassment).

I hope this Writ Petition by Tata would come as a rescue of Fundamental Rights in general and Right to Privacy of Indians in particular. The only question that remains to be seen is will the Supreme Court of India protect Privacy Rights of Indians at large? I am optimistic and would be glad to see this outcome.

Challenges Before National Intelligence Grid Of India

National Intelligence Grid (NATGRID) is one of the most desirable Projects of India. It is essential to safeguard the National Security of India on the one hand and Internal Security of India on the other. It is also required to “Modernise” the Law enforcement Machinery of India. However, there are many challenges before the NATGRID Project before it can be finally implemented in India.

The first and foremost challenge before the Project is to provide for adequate safeguards and protections against its misuse. India has already committed a blunder by starting the Aadhar Project of India without any legal framework and necessary safeguards. As a result the Aadhar Project has not been successful at all and is facing severe criticism and opposition.

Similar opposition were raised against NATGRID Project as well and the Cabinet Committee on Security (CCS) of India asked for further “Safeguards” before the NATGRID Project can be launched in India. However, till the month of November 2010, no such safeguards have been put at place by the Home Ministry of India. This can be a serious problem for the successful implementation of the Project.

The Law enforcement Agencies and Intelligence Agencies of India are also practically governed by no law. The outdated colonial laws still govern the functioning of these agencies. Similarly, there are no privacy laws and data protection laws in India. There is an urgent need to formulate effective privacy and data protection laws in India.

Another area of concern is the growing use of e-surveillance in India. In order to effectuate its e-surveillance exercises, India has manipulated the Information Technology Act, 2000 (IT Act 2000), the sole cyber law of India, through the Information Technology Amendment Act, 2008 (IT Amendment Act 2008). There are no “Guidelines” or “Procedural Safeguards” subject to which the “Internet Censorship” and “E-Surveillance Powers” can be exercised by Indian Government and its Agencies and Instrumentalities under the cyber law of India. In fact, the present Encryption Norms and Regulations in India allow only an “Outlaw” to enjoy Human Rights in Indian Cyberspace.

Before NATGRID Project is implemented in India, it is very imperative to enact a “Lawful Interception Law”. In the absence of proper laws that respect and Safeguards and Fundamental Rights enshrined under the Constitution of India, the exercise of “Self Defence” against Indian Government and its agencies and Instrumentalities seems to be the only choice.

If Home Minister P. Chidambaram wants the Projects like NATGRID, Crime and Criminal Tracking Network and System (CCTNS), etc to succeed, he must not take a short cut and must not avoid the “Constitutional Scrutiny”. Rather he must ensure proper “Safeguards” before such Projects are launched in India.

Self Defence In Indian Cyberspace

In the present e-surveillance scenario of India, at least two things are very clear. First is that the Government of India is not going to enact any law(s) regarding Data Protection and Privacy Protection in India. This is because the moment it enacts these laws, it cannot engage in illegal and “Unconstitutional” e-surveillance activities as it has been doing presently. The second is that it would further increase its e-surveillance activities in the near future with Projects like Aadhar/UID Project, NATGRID, CCTNS, etc.

Now the service providers like ISPs, Telecom companies, Google/Gmail, Skype, Blackberry, etc have to either accept the Indian Government’s demands or they must cease to carry on their operations in India. Obviously, all of them have accepted the first choice and are “Cooperating” with Indian Government.

India does not have any “Lawful Interception Law”. All it has is the “Unconstitutional” provisions of the Information Technology Act 2000 (through IT Act 2008 Amendments). Through these amendments, the Cyber Law of India has been made an “Instrumentality” of e-surveillance in India. There are no procedural safeguards that can prevent the illegal and unconstitutional e-surveillance activities in India.

The only recourse for Indians in such circumstances is to use “Self Defence” and prevent the illegal and unconstitutional encroachment upon their “Civil Liberties” like Right to Privacy. You can do the following:

(1) Use disposable e-mails to avoid e-mail surveillance,

(2) Use Safeguards like TOR against illegal Internet eavesdropping and sniffing

(3) Use TOR for instant messaging (IM) and mobile phones for private and secure conversations,

(4) For Blackberry users and those believing in a good combination of Privacy and Security, use Pretty Good Privacy (PGP) along with any good smart phone. This way you can have a better and e-surveillance free mobile infrastructure than the future controversial Blackberry phones.

(5) Use Enigmail for encrypted e-mails,

(6) For card holders, do not give your “Biometric Details” to Unique Identification Authority of India (UIDAI). This way your private and crucial details cannot be used for “Unconstitutional Projects Databases” like NATGRID, AADHAR, CCTNS, etc.

These are just “Basic Level Safeguards” and much more are possible and would be discussed subsequently.

Protecting Civil Liberties In Indian Cyberspace

The crucial balance and equilibrium proposed by the founding fathers of Indian Constitution has been disturbed by the Executive branch of Indian Constitution. The Executive branch has totally hijacked the Parliamentary Role and is implementing Projects having “Constitutional Implications” without any “Parliamentary Approval”.

If Projects that violate the basic Human Rights and Civil Liberties like Right to Privacy are implemented without any Law and Parliamentary approval, the role of Parliament in Indian Constitution is highly debatable.

For instance, purely E-Surveillance Projects like Aadhar/UID Project, NATGRID, CCTNS, etc have far reaching and adverse consequences for the Fundamental Rights of Indians. Still the Executive did not find it fit to enact suitable laws and provide adequate safeguards against the same.

Further, “Unconstitutional Authorities” like the Unique Identification Authority of India (UIDAI), etc are also operating without any accountability, transparency and legal authority. Further, there is also no “Parliamentary Scrutiny” of these authorities.

With the passing of the Information Technology Amendment Act 2008 (IT Act 2008), the Cyber Law of India has been made an instrumentality of illegal, unaccountable and Unconstitutional e-surveillance in India. With massive phone taping and e-surveillance history of India, conferring such a power in the hands of Executive and its Agencies is really troublesome. In this scenario, only “Outlaws” would have Human Rights in Indian Cyberspace.

India also does not have any dedicated Privacy Law and Data Protection Law. With the proposed use of Cloud Computing and Software as a Service (SaaS) by Indian Government, more “Privacy Violations” issues would arise in future. This is more so when Indian Government cannot even curb the highly nuisance creating Telemarketing vice in India.

I firmly believe that Indian Government is not going to change its stand and we have to preserve and protect our Civil Liberties ourselves. That is why I dedicated a resource titled “Protecting Human Rights in Cyberspace” (PHRIC) to suggest “Techno-Legal Measure” in this regard.

Now with this series, I would discuss the available “Techno-Legal Measures” to defeat illegal and Unconstitutional e-surveillance by Governmental Authorities and Agencies as well as by Private Individuals. Of course, these measures are available against illegal and unconstitutional acts or omissions alone and are not available against “Lawful Interceptions” and other e-surveillance activities authorised by a proper Court of Law. A background articles for safeguarding against illegal eavesdropping and sniffing has already been provided by me and more in this regard would be discussed subsequently.