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| CHRI criticizes SIC's order in favour of State Bank of India | | | Early Times Report
Srinagar, Oct 15 : Prominent International Civil Society Organisation working on RTI and Police Reforms in South Asia Commonwealth Human Rights Initiative (CHRI) has strongly criticized the order issued by the Jammu & Kashmir State Information Commission (SIC) on October 1t wherein the SIC upheld the order of Public Information Officer (PIO) SBI branch Thathri in Doda district as well as the First Appellate Authority (FAA) of State Bank of India Jammu . The State Bank of India (SBI) had denied information to an RTI applicant by invoking section 8 of JK RTI Act 2009 and some of its sub sections .
In addition to it SBI invoked Bankers Book Evidence Act (BBE Act) Coordinator Access to Information Programme at CHRI Venkatesh Nayak said invoking section 8 is not at all justified in this case. As for as BBE Act is concerned it cannot be invoked at all as RTI has overriding effect under section 19 Nayak added. CHRI has prepared a detailed analysis about this case which is as under :
The Appellant Mohd. Tayab Ganie from Doda had sought the following information from the Respondent under the Jammu and Kashmir Right to Information Act, 2009:
1) Details of transfer (of funds) under the Account Head MGNREGA through the State Bank of India (SBI) to pay wages to workers who worked under various developmental projects
2) Names of beneficiaries of cheques issues by the Block Development Officer (BDO), Thathri and photostat copies of the cheques issued.
The Bank Manger who is the designated Public Information officer (PIO) rejected the request on the ground that the information sought was personal in nature. The aggrieved appellant submitted a first appeal to the AGM, SBI, Jammu under the J&K RTI Act 2009 . After obtaining legal opinion, the First Appellate Authority upheld the rejection invoking Sections 8(1)(e), 8(1)(d) and 8(1)(e) of the J&K RTI Act. The aggrieved appellant filed a second appeal before the J&K State Information Commission. SBI submitted written arguments stating that the information sought was to be treated as confidential under Banker's Book Evidence Act (BBE Act) and could not be disclosed to any third party unless directed by a Court of Law or a judge. Further, SBI argued that the Bank was under a duty to maintain fidelity and secrecy of accounts under its own constituting law (SBI Act). The J&K State Information Commission (SIC) agreed with this contention and dismissed the appeal holding that the appellant had failed to make a case for disclosure in larger public interest. However the Commission cryptically advised the appellant to approach the office of the BDO to seek the same information through a fresh application under the J&K RTI Act.
CHRI's Analysis on SIC's order :
With due respect to the wisdom of the J&K SIC, we believe it has improperly applied the provisions of the J&K RTI Act in more than one way and also failed to appreciate the emtire gamut of the law requiring transparency in the manner of implementation of MGNREGA. First, the portion relating to the order of the Commission mentions Sections 1(d), 1(e) and 1(j) of the J&K RTI Act as grounds for rejecting the appeal. We believe this may be a typographical error as the relevant exemptions clauses invoked by the First Appellate Authority are Sections 8(1)(d) - information in the nature of commercial nature whose disclosure may hurt the competitive position of a third party; 8(1)(e)- information obtained by a person in a fiduciary relationship and 8(1)(j) where disclosure of personal information has no relationship to any public activity or interest or where disclosure would cause unwarranted invasion of privacy of the individual. So the Sections numbers invoked to dismiss the appeal are wrong. But this may be due to a typographical error. Second, the Commission has not adequately appreciated the nature of the information sought by applying its mind to the case independently and merely relied upon the counter arguments submitted by the Respondent. A deeper look at the information made public about MGNREGA through a dedicated portal would have sufficed to throw out the Respondent's submission as being without substance. Before proceeding further with this analysis it is important to understand what the MGNREGA is all about and how much of emphasis is placed in that law on the transparency of all actions taken and decisions made.
The Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) was passed by Parliament in the same year as the Central RTI Act, i.e., 2005. Initially it applied to the whole of India except the State of J&K. Later the application of this law was extended to J&K. Under MGNREGA the Central and State Governments together have the duty to provide 100 days of wage labour to every household residing in rural areas. If a worker is not provided work despite making an application for it, the government is duty bound to pay him/her an unemployment allowance. This rights-based legislation is one of the unique laws in the world where development funds collected from the taxpayers' money are not given away as charity but in the form of rightful wages to rural folk who work in development projects in their villages which they themselves have identified. This law initially covered a few hundred districts only but now it covers the entire country. MGNREGA is being held responsible for cushioning the adverse impact of high levels of inflation and low levels of economic growth on the life and well being of rural poor.
In order to ensure the highest levels of transparency in the implementation of MGNREGA, the Government of India has established an Internet Portal -www.nrega.nic.in which displays all categories of information generated in the course of implementation of the law. From micro-level information, such as, the registration numbers of job cards issued to each rural household, the names of the registered members, and the numbered muster rolls (wage payment registers) filled up, indicating number of days of labour put in by workers and the amount of wages paid to each person, to macro-level information, such as, the number of person-days of work completed in each development project sanctioned under the law, total expenditure, ratio of wages paid to material costs etc. All this information is accessible to any personthrough this portal. This portal has detailed information about MGNREGA projects completed or being undertaken in every village in J&K.
The information sought by the appellant in this case is in the nature of information that is already required to be made public through the MGNREGA Portal. However due to various reasons such as laxity or non-availability of records, information pertaining to MGNREGA projects is not uploaded in a timely manner. This is why people feel compelled to seek this information under the J&K RTI Act.
The Commission has not adequately appreciated the nature of information sought because nothing in its decision indicates that it has taken into account an important provision contained in the MGNREGA about transparency. Section 23 of this law states that all records pertaining to the implementation of the MGNREGA must be available in the public domain and easily accessible to the people. This is precisely why the Central and State Governments have taken the responsibility of setting up and maintaining the MGNREGA information portal. Information such as names of workers, their bank account numbers and payments made are all accessible on this portal for each village and household (where its members have sought work under the law) in rural areas. The information sought by the appellant is required to be made accessible proactively through the following homepage for Jangalwar village in Thathri:
When MGNREGA requires such high levels of transparency with regard to everything done and every paisa spent under the law, it is surprising that the Commission has not taken this statutory requirement into consideration while adjudicating this second appeal case.
Further, the information sought by the appellant is in the nature of information that is required to be proactively disclosed by the public authority under Section 4(1)(b)(xii). Under this clause, the details of all beneficiaries, the amounts allocated and the manner of implementation of all subsidy programmes must be made public. This duty of proactive disclosure lies not only on the BDO but also on SBI or any other Bank which is involved in making payments to workers under MGNREGA. Nothing in the Commission's decision indicates that it has applied its mind to this aspect of the law before dismissing the second appeal.
Further, Section 8(1)(d) refers to the exemption that may be invoked by a public authority to prevent disclosure of information that is in the nature of commercial confidence where disclosure may harm the competitive position of a third party. Nowhere in its decision has the Commission reasoned as to whose competitive position will be harmed by disclosing such information. SBI is in no competition with any other bank while helping make payments under the MGNREGA. It is only a means by which governments is channeling funds to the public under a development programme. This is not like any other business where the Bank is in a position to make any profit or loss, information about MGNREGA is not commercial in nature by any stretch of imagination. So in our opinion Section 8(1)(d) is simply not attracted n this case. Further, as this is a development programme financed entirely out of tax-payer funds, the information sought by the appellant pertaining to the cheques made out to workers and their names, are not held in fiduciary capacity by the Bank. When the MGNREGA portal provides open access to such information the Bank cannot justifiably keep it under wraps just because it holds that information in material form. Last, the exemption regarding protection of individual privacy is simply not available to this information for several reasons; First, the information is already made public through the MGNREGA portal. Second, the appellant has not sought any information from the passbook of the accountholders. He has only sought information that must be made public not only under the statute of MGNREGA but also under the J&K RTI Act. Third, the guiding factor behind such transparency is prevention of corruption and misuse of public funds. None of these considerations appeared to have crossed the Commission's mind while arriving at its decision. Further, Section 19 of the J&K RTI Act overrides all other laws to the extent of inconsistency. It is clear that the information sought by the appellant was in the nature of information that had to be proactively disclosed to the public in the first place. We have also shown how none of the exemptions invoked by SABI are attracted. So if banking laws prohibit the disclosure of such information the J&K RTI Act clearly overrides them to the extent of inconsistency. Even this provision has not been taken into consideration by the Commission while coming into consideration.
Given this detailed analysis, with due respect to the wisdom of the J&K State Information Commission, we believe this decision must be treated as per incuriam because it does not take into consideration the entire gamut of the law before rejecting the appeal. There is a strong possibility; this decision may be thrown out if challenged through a writ petition in the J&K High Court. Before concluding this analysis it needs to be pointed out that the legal opinion sought by SBI is also faulty. Whosoever furnished the legal opinion has not understood the manner of implementation of MGNREGA that is required under that very statute as well as the full import of the regime of transparency established by the J&K RTI Act. If SBI has paid any fee for obtaining this legal opinion, we believe this was a waste of a small amount of valuable resources that its depositors have entrusted to it. |
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