INSTRUCTIONAL MATERIAL FOR DISTRIBITION TO TRAINEE PARTICIPANTS

RIGHT TO INFORMATION ACT, 2005

GUIDELINES FOR

PUBLIC AUTHORITIES AND

ALL GROUP `A` & ‘B’ OFFICERS AT IIT DELHI    

 

 

 

          COMPILED BY:‐                                                                              MAHABIR    SINGH    KASANA                     M.Sc  LLM                     MASTER TRAINER & LEGAL EXPERT 

        E –mail:  mahabir.kasana@gmail.com                     Mob No. 09868284717    

 

 

DISCLAIMER

 

While all efforts have been made to make this compilation as accurate and as elaborate as possible, the information given in this book is for reference and must not be taken as binding in any way. This compilation is intended to provide guidance to the readers. It cannot be a substitute for the Act and the Rules made there under.

 

Table of Contents

Contents Page No.

Chapter-I

GENERAL GUIDELINES

Introduction: 1

Definitions 2 Information 2

Public Authority 3 Commercial confidence 3

Personal information 6

Examples of Personal information 7

Roster/vacancy position of employees 7

Bio-data forms and Medical reports 7

Employees' personal information 7

Traveling expenses 8

Deceased employee 9 Fiduciary capacity 9

Third party information 11

Only Citizens have Right to Information 12

Duties of Public Authority 13

Maintenance and Computerization of Records 13 Suo Moto Disclosure 13 Dissemination of Information 15 Publication of Facts about Policies and Decisions 15 Providing Reasons for Decisions 15 Designation of PIOs and APIOs etc. 16 Designation of Appellate Authority 16

Compliance of the Orders of the Information Commission 16 Development of Programmes etc 17 Creation of Central Point 17

Transfer of Applications 18 Annual Report of the CIC 18 Duties of PIO 19 Fee for Seeking Information 21

Record Retention Schedule and the Act 22

Time Period for Supply of Information 22

Information Exempted from Disclosure 22 APPEAL PROCEDURE 24

First Appeal 24 Second Appeal 25 Complaints 25

Table of Contents

Contents Page No.

Chapter II

Guidelines for CPIOs based on CIC Orders

File Notings 27

Language (Translation) 27

Form of access 28

Information not to be created 28

Information not to be manipulated 28

Information Held – Records weeded out following Retention Schedule.28

Creation of information 29

Can a requester seek opinions of the authorities? 29

Information in the memory 29

Record Management 29

Records Management – Misplaced / untraceable 29

Voluntary disclosure 30

APIO signing response 31

Any other officer signing response to requestor 31

Deemed PIO 32

Life & Liberty 32

No extra fees other than prescribed 33

Fee – Not to be charged 33

Reasons for rejection of requests 33

Information relating to Contracts 34

Contracts and PAN 34

Details of security and surety submitted to the Bank 34

I.T. Returns 35

Tax Evasion Petition 35

Cut-off marks 35

Legal opinion and fiduciary capacity 36

Voluminous information. 36

Process of Investigation – Departmental Proceedings 38

Doctrine of Severability 39

Bio-data forms and Medical reports 40

Reasons of administrative Decisions 40

RTI Act cannot be made a tool of vendetta 41

Information available with multiple public Authorities 42

Multiple requests in a single application 42

Sweeping and open-ended queries without any measure of precision 43

Demands for the explanation / reasons from the public authority, 43

Disclosure of Assets and Liability Statement of Public Servants 44

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RIGHT TO INFORMATION ACT 2005

Chapter-1

General Guidelines

Introduction:

The Right to Information Act (RTI), 2005, is a landmark legislation aimed at bringing transparency and removal of corrupt practices in the governance. It is based on the principal that an informed citizenry is the sine qua non of the vibrant democracy. The Act provides an easy way to enforce the fundamental right i.e. “Right to Know” while acting as catalyst for improving efficiency in the administration. It is also aimed at changing the mind set of the administrators from the rulers to the servant of the people. It opens pathways to governmental policies and decisions to ensure their consistency with the principles of public interest, probity and justice.

The most beneficial feature of the RTI Act is that every citizen shall now be an honorary concurrent auditor of the administration and shall continuously bring to the notice of the general public the fallacies and inefficiencies of the administration.

There is nothing to fear in the Act for the honest and the efficient administrator and there is everything to fear in the Act for the dishonest and the inefficient.

The Citizenry, barring a few instances of its misuse, are making effective use of its benevolent provisions.

The Act mandates disclosure of all manner of information, and abolishes the concept of locus standi, of the information seeking applicant; no justification for applying (for information) is necessary; indeed, Section 6(2) enjoins that reasons for seeking such information cannot be sought- (to a certain extent, this bar is relieved, by Section 8 where public interest test in some cases shall be overriding ).

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The needs of society at large, and governments and private individuals have been well balanced. Sensitive information is kept out of bounds. This has been addressed at two levels: one, by taking a number of security and intelligence related organizations out of purview of the Act, two by enacting specified exemptions – from disclosure, on grounds of public interest.

The Act provides for stringent penalty provisions [Section 20] for delay or denial of information, or indeed for knowingly misleading the applicant. Citizens have been given a two-tier appeal system and freedom to lodge a complaint with the Central/State Information Commission, free of cost with regard to non-implementation of the provisions of the Act.

It is essential to understand a few definitions before going through the other sections of the Act.

Definitions Section 2 of the RTI act provides definitions of the terms used in the Act. The main terms are What is Information Section 2(f). Defines Information as any material in any form. It includes records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form. It also includes information relating to any private body which can be accessed by the public authority under any law for the time being in force.

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PUBLIC AUTHORITY

Public Authority as defined in Section 2(h) of the Act means any authority or body or institution of self-government established or constituted by or under the Constitution;

• By any other law made by the Parliament or State Legislature; • By a notification issued or an order made by the appropriate

government; • Includes body owned, controlled or substantially financed by the

government ; • Includes any non-government organization substantially financed directly

or indirectly by the appropriate government.

The Public Authority, therefore, can only be an “authority” ‘body’ or an “institution” of self, government, established or constituted, by or under the Constitution or by any other law, or by an order made by the appropriate government [Central/State Government].

COMMERCIAL CONFIDENCE

Section 8(1)(d) of the RTI Act provides for exemption from disclosure of information including commercial confidence, trade secrets or intellectual property, the disclosure of which can harm the competitive position of a third party unless the competent authority is satisfied that larger public interest warrants the disclosure of such information

The term “Commercial Confidence” is not defined under the RTI Act. According to Oxford Dictionary ‘Commercial’ means engaged in, or connected with, ‘commerce’ or having profit as the primary aim rather than artistic etc. value’. As per Black’s Law dictionary: “Commercial” relates to or is connected with trade and traffic or commerce in general; is occupied with business and commerce. Generic term for most/all aspects of buying and selling. And ‘Confidence’ denotes that which is held as ‘secret’ and ‘private’ or ‘confidential’; that which has been reveled in trust or confidence and not to be shared with any other person as it would harm or affect the commercial interests.

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The expression “third party” is defined by section 2 (n) as a person other than a citizen making a request for information and includes a public authority. Since the definition of third party includes a public authority, the exemption referred to in Section 8(1)(d) is available to the bank if the disclosure of information is likely to harm the competitive position of the bank itself. In other words, Section 8(1) (d) exempts information from disclosure when such information has the characteristics of commercial information or confidence.

Information between the customer and the Bank indeed places such information in the exempt category of Section 8(1) (d) being in the nature of ‘Commercial confidence’.

In the case of Subhash Chandra Agarwal Vs M/O Petroleum & Natural Gas, HPCL and BPCL CIC held that commercial and service organizations are free to conduct businesses in a manner that assure their competitiveness in the free market economy. There is, therefore, no justification for disclosing the details of basis for providing incentives to the consumers that are critical for promotion of business.

Data collected, collated and analyzed through own efforts of the Public Authority also attracts the exemption specified in Section 8(1)(d) being the intellectual property. It was further held that the Public Sector Companies function in an intensely competitive environment where guarding their key personnel is a major concern. The competitors by offering them several inducements in terms of pay and perks, are every keen and eager to poach into the pool of agents nurtured over the years by the public sector insurance companies. It is, therefore, against the commercial interests of the public authority to disclose details regarding its agents.

In the case of Ashish Kumar Agarwal Vs Oriental insurance Company Ltd. a request for furnishing the database regarding the agents of a commercial organization such as the present Public Authority. Viz. The Oriental Insurance Company Limited was held undoubtedly to be the commercial information of the respondents.

Disclosure of audit reports of the public authority was held to be divulging its commercial information. In the commission’s view, once it is

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established that a certain information or a set of information has the characteristics of a commercial information/confidence, no matter whether it is of a third-party or of a respondent, or appellant-public authority, its disclosure should be exempted under Section 8(1)(d).

The Central Information Commission has held in a number of its decisions rendered in the past that a citizen cannot seek information from a Bank on the accounts of its customers except in respect of his own accounts on the ground, inter-alia, that such information involves commercial confidence and is exempt from disclosure u/s 8(1)(d) of the Act. However, information relating to the deposit accounts of deceased customer is required to be furnished to the legal heir of the deceased depositor provided he shows proper evidence to the satisfaction of the Bank.

Information concerning operation of ATMs, which is really a matter of commercial confidence and as a matter of fact lot of security is involved in such procedure and such information cannot be given to any outsider. Similarly, when an agreement entered into by the Public Authority contains a confidentiality clause, the CIC held that it cannot be disclosed to any citizen.

An Agreement between SBI and Kotak Mahindra Bank relating to the method of valuation of NPA in order to fix the minimum amount to be paid by the Kotak Mahindra Bank to State Bank of India was held to be exempt from disclosure obligation under Section 8(1)(d) of the Act.

Any other document or information disclosure of which would be prejudicial to the interests of the bank, such as, RBI Inspection Reports, Memorandum submitted to the competent authority regarding sanction of loan, audit, investments, etc., containing information of commercial confidence fall u/s 8(1)(d) of the Act.

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Personal information

“Section 8(1)(j) – Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, -

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; Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”

“Personal information” does not mean information relating to the information seeker, but about a third party. That is why, in the Section, it is stated “unwarranted invasion of the privacy of the individual”. If one were to seek information about himself or his own case, the question of invasion of privacy of his own self does not arise. If one were to ask information about a third party and if it were to invade the privacy of the individual, the information seeker can be denied the information on the ground that disclosure would invade the privacy of a third party. Therefore, when a citizen seeks information about his own case and as long as the information sought is not exempt in terms of other provisions of Section 8 of RTI Act, this section cannot be applied to deny the information.”

A citizen, or a person, a legal person, or any institution has several interfaces with the State/Government such a tax-payer, licensee, consumer, and so on. In each such role, if he parts with a certain measure of personal information to an authorized public body, which he would never have parted but for the compulsion of law. But this fact alone is not sufficient to alter the character of the information parted, i.e. not sufficient to transform an acknowledged personal information to public. It simply means that the individual, bowing to the Sovereign State, complies with its law, by allowing it limited ingress into the individual’s private domain. The State / Government, on the other hand, impliedly promises to the individual the confidentiality of the information

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– to keep it away from the reach of third-parties. Section 8(1)(j) of the RTI Act is to be read in the above context.

EXAMPLES OF PERSONAL INFORMATION

Roster/vacancy position of employees

Information related to the Roster/vacancy position of employees are neither confidential nor personal information.

Bio-data forms and Medical reports

Bhagwan Chand Saxena asked for copies of the bio-data submitted by four candidates at the time of their appointment as Assistant Directors and also copies of their medical reports submitted by the medical authorities declaring these candidates as fit / unfit.

CIC held that when a candidate submits his application for appointment to a post under a P.A., the same becomes a public document and he cannot object to the disclosure on the ground of invasion of privacy and directed the PIO to provide copies of the bio-data.

As far as medical reports are concerned, they are purely personal to the individuals and furnishing of the copies of medical reports would amount to invasion of privacy of the individuals and need not be furnished. However PIO will disclose to the requester the information whether all the four candidates had been declared medically fit or not.

Employees' personal information

The information requested by the appellant from the PIO concerned a third person, Shri Arun Mishra, LDC, QMG’s Branch, and include -

1. Date of his appointment

2. His Address (Permanent)

3 .His Address (Local) (If there is any change in the address the periods with addresses must be indicated)

4. The name of his family members in CGHS Card and the name of Dispensary.

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5. Whether he is married? And if married what is the name of his wife as per the records and the date on which he informed about his marriage.

6. What is the name of his nominee in the GPF, CGEIS and other documents with the dates on which the forms have been filled.

7. Basic Pay

8. Whether any disciplinary action is pending against him CIC held:

The information which the appellant has solicited in respect of a third party, Shri Arun Mishra, is clearly of a very personal nature in regard to items 4, 5, 6 and 8. There is no reason why any person should get information about a Government employee in respect of the family members listed on the CGHS Card, the name of the Dispensary, whether that employee is married, the name of his wife, the date of his informing the public authority about his marriage, the names of his nominees for the GPF and CGEIS and other documents, the dates on which the forms have been filled, and whether any disciplinary action is pending against him. Apart from being personal information, disclosure of such information serves no public purpose. It is quite possible that disclosure of such information may lead to unwarranted harassment and intimidation of the employee by other parties. The Commission has to exercise utmost caution in authorizing disclosure of personal information of employees of public authorities. Except when dictated by overwhelming public purpose, such information is better left undisclosed under the provision of exemption Section 8(1)(j) of the Act. Information at items 1, 2, 3 and 7 can be disclosed after the third party is duly heard by the Appellate Authority.

Traveling expenses :

The traveling expenses were charged to the public account, Disclosure of the information can not be denied on the grounds of personal information ‘not a public activity’ and ‘no public interest’ etc.Travel had been performed as a part and in discharge of official duties and the records related to the same are public records and therefore, a citizen has the right to seek disclosure of the same.

Information relating to the tour programmes and travel expenses of a public servant cannot be treated as personal information.

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Deceased employee The personal records of a deceased employee can be accessed by his/her legal heir provided the applicant show satisfactory proof of his relationship with the deceased employee FIDUCIARY CAPACITY

Section 8(1)(e) of the Act exempts disclosure of information available to a person in fiduciary relationship

The term “fiduciary” relationship refers to relationship based on trust or confidence reposed by one person in the integrity and fidelity of another. “Generally, the term ‘fiduciary’ applies to any person who occupies a position of peculiar confidence towards another. It refers to integrity and fidelity. It contemplates fair dealing and good faith, rather than legal obligation, as the basis of the transaction. The term includes those informal relations which exist whenever one party trusts and relies upon another…. …a ‘fiduciary’ or confidential relation in sense that a ‘fiduciary is required to render an account exists in all cases where there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing the confidence. The word fiduciary implies that the relationship exists only when there is a reposing of faith, confidence and trust and the placing of reliance by one upon the judgment and advice of another.” Fiduciary relationship, therefore, is based on trust and good faith, rather than legal obligation. Such relationship obligates the fiduciary to act for the benefit and interests of him, who reposes the trust in him (i.e. the fiduciary), in regard to the matter of trust.

“a relationship in which one person is under a duty to act for the benefit of the other on the matters within the scope of the relationship… Fiduciary relationship usually arise in one of the four situations (1) when one person places trust in the faithful integrity of another, who is a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act or give advice to another on matters falling within the scope of the relationship, or (4) when there is specific relationship that

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has traditionally be recognized as involving fiduciary duties, as with a lawyer and a client, or a stockbroker and a customer”

The following Kinds of relationships may broadly be categorized as “fiduciary”:

Bank / Customer Trustee/beneficiary (Section88, Indian Trusts Act, 1882) Legal guardians / wards (Section 20, Guardians and Wards Act, 1890) Lawyer/client; Lawyer/client ; Executors and administrators / legatees and heirs Board of directors / company Liquidator/company Receivers, trustees in bankruptcy and assignees in insolvency / creditors Doctor/patient Parent/child From the above discussion, it may be seen that a fiduciary relationship is one whereby a person places complete confidence in another in regard to a particular transaction or his general affairs or business. The relationship Ned not be “formally” or “legally” ordained, or established, like in the case of a written trust; but can be one of moral or personal responsibility, due to the better or superior knowledge or training, or superior status of the fiduciary as compared to the one whose affairs he handles. An equally important characteristic for the relationship to qualify as a ‘fiduciary relationship’ is that the provider of information gives the information for using it for the benefit of the one who is providing the information. All relationships usually have an element of trust, but all of them cannot be classified as fiduciary. If the information sought relates to disclosures of account details of Bank’s Customers, the same would be exempt from disclosure under Section 8(1)(e) of the RTI Act in as much as the Bank is holding such information in a fiduciary capacity and is duty bound to maintain secrecy of its customer’s affairs. The CIC has time and again held that a citizen cannot seek information from a bank on the accounts of its customers except in respect of his own account.

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THIRD PARTY INFORMATION The definition of “Third Party” under Section 2 (n) read with Section 11 of the RTI covers anyone other than the public authority dealing with the application and the requester (applicant) for information as shown below:

First Party The Person submitting an application or appeal

Second Party The Public Authority responsible for processing the application.

Third Party Any other person or body including another Pubic Authority

The Right to information Act also covers individuals/firms/organizations which directly do not fall within the scope of the Act but hey have submitted some of their information related to contracts, business deals or financial details to government agencies (public authorities). Such information can be accessed under the Right to Information Act by the citizens. These individuals/firms/organizations are covered under the definition of ‘third-party’ under the RTI Act. The records supplied by a third party but held by a public authority are included within the definition of “information” under the RTI Act, and can be the subject matter of request for information. Section 11 of the RTI Act requires that if the information asked by a citizen relates to a record that has been supplied by a third party, and is not treated as confidential by that party, the PIO of a public authority by a third party, then the following steps will have to be taken by the PIOs:

The PIO has to give written notice to the third party within five days of the receipt of an application for information seeking his opinion, whether the information should be disclosed to the applicant or not.

The third party has to make a submission to the PIO within 10 days, whether to disclose the information or not.

Within 40 days of the receipt of the application, the PIO has to make a decision. Should the information related to the third party be provided to the applicant or not, and then convey his decision to the third party.

The third party can appeal against the decision of the PIO to disclose information relating to him/her to an RTI applicant to appellate authorities.

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Under Section 11 (third party) of the Act, all the private industries, banks or any other firms which has some kind of business dealings/contractual relationships with the public authorities, are covered. Citizens can ask for information about these firms form the public authorities, which maintain their records.

1. Third Party has no absolute right to refuse information disclosure about it [Sec. 11(1) of the RTI Act] In the case of K.K. Mahajan vs. Cantonment Executive Office , the appellant, an employee of a public authority, had applied for some information relating to the prosecution of another employee (third party), because under similar circumstances the appellant was convicted while the other employee was exonerated. The public authority refused to provide him the information he had asked for on the ground that the third party had refused the disclosure of information about it to the applicant. It was held that the RTI Act does not give a third party an automatic right to order the public information officer (PIO) of a public authority, not to disclose information pertaining to it. The CIC further held that the public authority is required to evaluate the third party’s case in terms of the provisions of Section 8(1) (i) and Section 11(1) of the RTI Act, 2005, and find out that the information asked is not barred from disclosure. Even if the information is barred from disclosure then the public authority is to examine if it would be in the public interest to disclose the information sought and its disclosure will outweigh harm if any to the individual third party. The public authority has to arrive at the findings by properly assessing the facts and circumstances of the case. A speaking order should thereafter be passed accordingly.

Only Citizens have Right to Information Section 3 of the Act gives the right to information only to the citizens of India. It does not make provision for giving information to Corporations, Associations, Companies etc. which are legal entities/persons, but not citizens. However, if an application is made by an employee or office-bearer of any Corporation, Association, Company, NGO etc. indicating

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his name and such employee/office bearer is a citizen of India, information may be supplied to him/her. In such cases, it would be presumed that a citizen has sought information at the address of the Corporation etc.

DUTIES OF PUBLIC AUTHORITY

Maintenance and Computerisation of Records Proper management of records is of utmost importance for effective implementation of the provisions of the Act. A public authority should, therefore, maintain all its records properly. It should ensure that the records are duly catalogued and indexed in such a manner and form that it may facilitate the right to information Suo Motu Disclosure Every public authority should provide as much information suo motu to the public through various means of communications so that the public have minimum need to use the Act to obtain information. Internet being one of the most effective means of communications, the information may be posted on the website. 12 Guide on Right to Information Act, 2005 Section 4(1)(b) of the Act, in particular, requires every public authority to publish following sixteen categories of information: (i) the particulars of its organisation, functions and duties; (ii) the powers and duties of its officers and employees; (iii) the procedure followed in the decision making process, including channels of supervision and accountability; (iv) the norms set by it for the discharge of its functions; (v) the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions;

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(vi) a statement of the categories of documents that are held by it or under its control; (vii) the particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof; (viii) a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for public; (ix) directory of its officers and employees; (x) the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations; (xi) the budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made; (xii) the manner of execution of subsidy programmes, including the amounts allocated and the details of beneficiaries of such programmes; (xiii) particulars of recipients of concessions, permits or authorisations granted by it; (xiv) details in respect of the information, available to or held by it, reduced in an electronic form; (xv) the particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use;

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(xvi) the names, designations and other particulars of the Public Information Officers. 13 Besides the categories of information enumerated above, the public authority may suo motu disclose other categories of information to minimize need of citizens to seek information by filing applications. It need be stressed that publication of the information as referred to above is not optional. It is a statutory requirement which every public authority is bound to meet. Another important point to note is that it is not sufficient to publish the above information once. The public authority is obliged to update such information every year. It is advisable that, as far as possible, the information should be updated as and when any development takes place. Particularly, in case of publication on the internet, the information should be kept updated all the time. Dissemination of Information The public authority should widely disseminate the information. Dissemination should be done in such form and manner which is easily accessible to the public. It may be done through notice boards, newspapers, public announcements, media broadcast, the internet or any other means. The public authority should take into consideration the cost effectiveness, local language and most effective method of communication in the local area while disseminating the information. Publication of Facts about Policies and Decisions Public authorities formulate policies and take various decisions from time to time. As provided in the Act, while formulating important policies or announcing the decisions affecting the public, the public authority should publish all relevant facts about such policies and decisions for the information of public at large . Providing Reasons for Decisions The public authorities take various administrative and quasi-judicial decisions which affect the interests of certain persons. It is mandatory for

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the concerned public authority to provide reasons for such decisions to the affected persons. It may be done by using appropriate mode of communication. Designation of PIOs and APIOs etc. Every public authority is required to designate Public Information Officers in all the administrative units or offices under it. Every public authority is also required to designate Assistant Public Information Officers at each sub-divisional level. The Government of India has decided that Central Assistant Public Information Officers (CAPIOs) appointed by the Department of Posts would act as CAPIOs for all the public authorities under the Government of India. Designation of Appellate Authority Sub-section (8) of Section 7 of the RTI Act provides that where a request for information is rejected, the Public Information Officer shall, inter-alia, communicate the particulars of the Appellate Authority to the person making the request. Thus, the applicant is informed about the particulars of the Appellate Authority when a request for information is rejected but there may be cases where the Public Information Officer does not reject the application, but the applicant does not receive a decision within the time as specified in the Act or he is aggrieved by the decision of the Public Information Officer. In such a case the applicant may like to exercise his right to appeal. But in absence of the particulars of the appellate authority, the applicant may face difficulty in making an appeal. All the public authorities should, therefore, designate the First Appellate Authorities and publish their particulars alongwith the particulars of the Public Information Officers. Compliance of the Orders of the Information Commission While deciding an appeal, the Information Commission, may require the concerned public authority to take such steps as may be necessary to secure compliance with the provisions of the Act. In this regard the Commission may pass an order to provide information to an applicant in a particular form; appoint a Public Information Officer; publish certain information or categories of information; make necessary changes to its practices in relation to the maintenance, management and destruction of records; enhance the provision of training for its officials; provide an

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annual report as prepared in compliance with clause (b) of subsection (1) of section 4 of the Act. The Commission has power to pass orders requiring a public authority to compensate the complainant for any loss or other detriment suffered by him. It also has power to impose penalty on the Public Information Officer as provided in the Act. It may be noted that penalty is imposed on the Public Information Officer which is to be paid by him. However, the compensation, ordered by the Commission to be paid to an applicant would have to be paid by the public authority, The decisions of the Commission are binding. The public authority should ensure that the orders passed by the Commission are implemented. If any public authority or a PIO is of the view that an order of the Commission is not in consonance with the provisions of the Act, it may approach the High Court by way of a Writ Petition. Development of Programmes etc It is expected of each public authority that it would develop and organize educational programmes to advance the understanding of the public, in particular of disadvantaged communities, as to how to exercise the rights contemplated under the Act; and ensure timely and effective dissemination of accurate information about their activities. Training of the Public Information Officers and other officers of a public authority is very important for meeting these expectations and effective implementation of the provisions of the Act. The public authorities should, therefore, arrange for training of their officers designated as Public Information Officer/First Appellate Authority and other officers who are directly or indirectly involved in the implementation of the provisions of the Act. Creation of Central Point Sub-section (1) of Section 5 of the Right to Information Act, 2005 mandates all public authorities to designate as many Public Information Officers as necessary to provide information under the Act. Where a public authority designates more than one Public Information Officer (PIO), an applicant is likely to face difficulty in approaching the

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appropriate Public Information Officer. The applicants would also face problem in identifying the officer senior in rank to the Public Information Part II - For Public Authorities 16 Guide on Right to Information Act, 2005 Officer to whom an appeal under sub-section (1) of Section 19 of the Act can be made. Therefore all public authorities with more than one PIO should create a central point within the organisation where all the RTI applications and the appeals addressed to the First Appellate Authorities may be received. An officer should be made responsible to ensure that all the RTI applications/appeals received at the central point are sent to the concerned Public Information Officers/Appellate Authorities, on the same day. Transfer of Applications The Act provides that if an application is made to a public authority requesting for an information, which is held by another public authority; or the subject matter of which is more closely connected with the functions of another public authority, the public authority, to which such application is made, shall transfer the application or relevant part of it to that other public authority within five days from the receipt of the application. The public authority should sensitize its officers about this provision of the Act lest the public authority is held responsible for delay. Annual Report of the CIC The Information Commissions, after the end of each year, are required to prepare reports on the implementation of the provisions of the Act during that year. Each Ministry or Department is required, in relation to the public authorities within its jurisdiction, to collect and provide information to the concerned Information Commission for preparation of the report. The report of the Commission, inter-alia, contains following information in respect of the year to which the report relates: (a) the number of requests made to each public authority; (b) the number of decisions where applicants were not entitled to access to the documents pursuant to the requests, the provisions of the Act under which these decisions were made and the number of times such provisions were invoked;

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(c) particulars of any disciplinary action taken against any officer in respect of the administration of the Act; (d) the amount of charges collected by each public authority under the Act; and (e) any facts which indicate an effort by the public authorities to administer and implement the spirit and intention of the Act. 17 If it appears to the Information Commission that a practice of a public authority in relation to the exercise of its functions under the Act does not conform with the provisions or spirit of the Act, it may give a recommendation to the authority specifying the steps ought to be taken for promoting such conformity. The concerned public authority should take necessary action to bring its practice in

DUTIES OF PIO

• PIO shall deal with requests from persons seeking information and where the request cannot be made in writing, render reasonable assistance to the person to reduce the same in writing.

• If the information requested for is held by, or its subject matter is

closely connected with the function of another public authority, the PIO shall transfer, within 5 days, the request to that other public authority and inform the applicant immediately.

• PIO may seek the assistance of any other officer for the proper

discharge of his/her duties. • PIOs on receipt of a request, shall as expeditiously as possible,

and in any case within 30 days of the receipt of the request, either provide the information on payment of such fee as may be prescribed, or reject the request for any of the reasons specified in the rules, provided that where an application for information or appeal is given to a State Assistant Public Information Officer, as the case may be, a period of five days shall be added in computing the period for response.

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• Where the information requested for concerns the life or liberty of a person, the same shall be provided within forty-eight hours of the receipt of the request.

• If the PIO fails to give decision on the request within the period

specified, he shall be deemed to have refused the request. • Where a request has been rejected, the PIO shall communicate to

the requester – (i) the reasons for such rejection, (ii) the period within which an appeal against such rejection may

be preferred, and (iii) the particulars of the Appellate Authority.

• PIO shall provide information in the form in which it is sought

unless it would disproportionately divert the resources of the Public Authority or would be detrimental to the safety or preservation of the record in question.

• If allowing partial access, the PIO shall give a notice to the applicant,

informing: a) That only part of the record requested, after severance of the record containing information which is exempt from disclosure, is being provided; b) The reasons for the decision, including any findings on any material question of fact, referring to the material on which those findings were based; c) The name and designation of the person giving the decision; d) The details of the fees calculated by him or her and the amount of fee which the applicant is required to deposit; and e) His or her rights with respect to review of the decision regarding non- disclosure of part of the information, the amount of fee charged or the form of access provided.

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• If information sought has been supplied by third party or is treated as confidential by that third party, the PIO shall give a written notice to the third party within 5 days from the receipt of the request and take its representation into consideration.

• Third party must be given a chance to make a representation

before the PIO within 10 days from the date of receipt of such notice.

Fee for Seeking Information

1. A person who desires to seek some information from a public authority is required to send, along with the application, a demand draft or a banker’s cheque or an Indian Postal Order of Rs. 10/- (Rupees ten), payable to the Accounts Officer of the public authority as fee prescribed for seeking information. The payment of fee can also be made by way of cash to the Accounts Officer of the public authority or to the Assistant Public Information Officer against proper receipt. 2. The applicant may also be required to pay further fee towards the cost of providing the information, details of which shall be intimated to the applicant by the PIO as prescribed by the Right to Information (Regulation of Fee and Cost) Rules, 2005. Rates of fee as prescribed in the Rules are given below: (a) Rupees two (Rs. 2/-) for each page ( in A-4 or A-3 size paper) created or copied; (b) actual charge or cost price of a copy in larger size paper; (c) actual cost or price for samples or models; (d) for information provided in diskette or floppy, rupees fifty (Rs. 50/-) per diskette or floppy; and (e) 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.

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3. As already pointed out, a citizen has a right to inspect the records of a public authority. For inspection of records, the public authority shall charge no fee for the first hour. But a fee of rupees five (Rs. 5/-) for each subsequent hour (or fraction thereof) shall be charged. 4. If the applicant belongs to below poverty line (BPL) category, he is not required to pay any fee. However, he should submit a proof in support of his claim to belong to the below poverty line. The application not accompanied by the prescribed fee of Rs. 10/- or proof of the applicant’s belonging to below poverty line, as the case may be, shall not be a valid application under the Act. It may be pointed out that there is no bar on the public authority to supply information in response to such applications. However, provisions of Act would not apply to such cases. Part

Record Retention Schedule and the Act The Act does not require the public authorities to retain records for indefinite period. The records need be retained as per the record retention schedule applicable to the concerned public authority Time Period for Supply of Information In normal course, information to an applicant shall be supplied within 30 days from the receipt of application by the public authority. If information sought concerns the life or liberty of a person, it shall be supplied within 48 hours. In case the application is sent through the Assistant Public Information Officer or it is sent to a wrong public authority, five days shall be added to the period of thirty days or 48 hours, as the case may be. Information Exempted from Disclosure Section 8(1)(a) of the Acts exempts following ten categories of information from disclosure: i) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or

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economic interests of the State, relation with foreign State or lead to incitement of an offence. ii) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court; iii) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature; iv) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; v) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; vi) information received in confidence from foreign Government; vii) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes; viii) information which would impede the process of investigation or apprehension or prosecution of offenders; ix) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other Officers; x) 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; Notwithstanding any of the exemptions listed above, a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.

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The information which, in normal course, is exempt from disclosure under sub-section(1) of Section 8 of the Act, would cease to be exempted if 20 years have lapsed after occurrence of the incident to which the information relates. However, the following types of information would continue to be exempt and there would be no obligation, even after lapse of 20 years, to give any citizen:

(i) information disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interest of the State, relation with foreign state or lead to incitement of an offence;

(ii) information the disclosure of which would cause a breach of privilege of Parliament or State Legislature; or

(iii) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other Officers subject to the conditions given in proviso to clause (i) of sub-section(1) of Section 8 of the Act

APPEAL PROCEDURE First Appeal If an applicant is not supplied information within the prescribed time of thirty days or 48 hours, as the case may be, or is not satisfied with the information furnished to him, he may prefer an appeal to the first appellate authority who is an officer senior in rank to the Public Information Officer. Such an appeal, should be filed within a period of thirty days from the date on which the limit of 30 days of supply of information is expired or from the date on which the information or decision of the Public Information Officer is received. The appellate authority of the public authority shall dispose of the appeal within a period of thirty days or in exceptional cases within 45 days of the receipt of the appeal.

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Second Appeal If the first appellate authority fails to pass an order on the appeal within the prescribed period or if the appellant is not satisfied with the order of the first appellate authority, he may prefer a second appeal with the Central information Commission within ninety days from the date on which the decision should have been made by the first appellate authority or was actually received by the appellant. Complaints If any person is unable to submit a request to a Public Information Officer either by reason that such an officer has not been appointed by the concerned public authority; or the Assistant Public Information Officer has refused to accept his or her application or appeal for forwarding the same to the Public Information Officer or the appellate authority, as the case may be; or he has been refused access to any information requested by him under the RTI Act; or he has not been given a response to a request for information within the time limit specified in the Act; or he has been required to pay an amount of fee which he considers unreasonable; or he believes that he has been given incomplete, misleading or false information, he can make a complaint to the Information Commission. Disposal of Appeals and Complaints by the CIC The Central Information Commission decides the appeals and complaints and conveys its decision to the appellant/complainant and first appellate authority/Public Information Officer. The Commission may decide an appeal/complaint after hearing the parties to the appeal/complaint or by inspection of documents produced by the appellant/complainant and Public Information Officer or such senior officer of the public authority who decided the first appeal. If the Commission chooses to hear the parties before deciding the appeal or the complaint, the Commission will inform the date of hearing to the appellant or the complainant at least seven clear days before the date of hearing. The appellant/complainant has the discretion to be present in

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person or through his authorized representative at the time of hearing or not to be present. Part

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RIGHT TO INFORMATION ACT 2005

Chapter-II

Guidelines for CPIOs based on CIC Orders

It is incumbent upon all the CPIO’s that they should keep themselves abreast of the latest CIC judgements on various issues. Some of the landmark judgements are reproduced here to enable the CPIO’s to efficiently deal with the RTI applications.

File Notings

The Commission noted with serious concern that some public authorities were denying request for inspection of file notings and supply copies thereof to the applicants despite the fact that the RTI Act, 2005 does not exempt file notings from disclosure. The DOPT website was creating a lot of unnecessary and avoidable confusion in the minds of the public authorities. The Commission directed the Secretary, Ministry of Personnel & Public Grievances, Government of India in exercise of powers conferred on it under Section 19(8) of the Right to Information Act, 2005 to remove the instruction relating to non disclosure of file notings from the website within 5 days of the issue of the order failing which the Commission shall be constrained to proceed against the Ministry of Personnel.

Language (Translation)

Jai Kumar Jain applied to Delhi Development Authority (D.D.A) asking for information about the details of the lease area of all the shops of the DDA market, in Hindi, as he has applied to the PIO in Hindi.( Jai Kumar Jain vs. DDA CIC/WB/A/2006/00117)

The CIC directed DDA to provide the requested information duly translated in Hindi.

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Form of access

If the requested information is not available in electronic form as required by the requester, it does not have to be created for the appellant. (B.H. Veeresha vs. DGM, Canara Bank HO, Bangalore CIC/MA/A/2006/0002)

Information not to be created

RTI Act aims to provide information in the form in which it exists through various means like – inspection, certified copies, etc. The information is not to be created. The Act clearly prescribes that the information sought should pertain only to those materials that are available with and held by authority and therefore, no requests may be entertained in terms of queries, clarifications or explanations from the authorities which are not available on the records or can not be retrieved from the records (Maj.Gen V.K. Singh vs. CIC, CIC/AA/A/2009/291).

Information not to be manipulated

Information is to be provided in the form in which it is sought, provided of course the information is available in that form. The appellant should therefore ascertain whether the information that he needs are available in the form required by him. The appellant, for instance, has sought certain statistical information, such as the number of disputed cases settled under different schemes, which should be given, provided it exist in the form in which the appellant has asked for. They ought not be manipulated in any form, lest the purpose of scrutinizing of public action by the civil society should get defeated (G.P.S. Rana vs. State Bank of India, Jaipur 225/IC(A)/2006-31.8.2006).

Information Held – Records weeded out following Retention Schedule.

Records of the court martial trial were destroyed after a retention period of 10 years under Army Rule 146. Information did not exist, it was physically impossible to provide it. There is no liability under RTI Act to supply non existent information (Gurbachan Singh vs. Army Headquarters CIC/AT/A/2006/20)

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Creation of information

Under sec. 2(j) of the R.T.I. Act 2005 only information as held by or under the control of any public authority, can constitute a right to information for which a citizen can claim access. This cannot be construed to demand creation of information as has been sought in this matter, asking for measurements to be taken. Even if Chief architect is to considered custodian of information he can not be asked to create information if not in his possession (Rakesh Agarwal vs. New Delhi Municipal Corporation CIC/WB/A/2006/00379; 00380 & 00381)

Can a requester seek opinions of the authorities?

The PIO is required to 'provide information' which is available in any form with her office rather than giving her ' personal opinion' on the questions asked by the requester (P.N. Kalra vs. Office of the Commissioner Customs & Excise CIC/MA/A/2006/00150).

Information in the memory

The appellant is under an erroneous impression of that not only he has a right to information,he also has aright to the information in the memory of a public authority.There is no obligation to disclose such information ( A.P. Sharma vs. CPIO, Ministry of Defence (Navy) CIC/AT/A/2006/00296)

Record Management

Record Management system ought to be improved in such a way that information which are to be disclosed to public could be easily provided, after delineating the information that is exempted under the Act (Paramveer Singh vs. Punjab University, Chandigarh CIC/OK/A/2006/00016)

Records Management – Misplaced / untraceable

"Lodge FIR to initiate criminal action against those responsible for theft/loss of records"- CIC directs the Ministry

Ms. Misha Singh applied to the Ministry of Environment & Forests seeking information regarding environmental clearance and other parameters of the Maheshwar Hydro Electric Project, Madhya Pradesh

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in reference to the 1994 environmental clearance given to the NDVA and its follow up-- the reason for not providing information was that it could not be located. On the basis of the above,CIC had directed Additional Registrar Shri L.C.Singhi of the Commission to visit the Office of the Ministry and investigate the matter of non-location of files.Accordingly, the Additional Registrar visited the office. His report is as follows:

… the misplacement of the file is a fact. It is also a fact that the records are neither cataloged nor indexed. The department does not know how many files are untraceable. It is really strange as to how one full almirah could get misplaced and becomes “untraceable”. However, prima facie there are no malafides. “

Based on the report, Commission directed Ministry as under:

“As reported by the Investigating Officer the concerned files and indeed a whole almirah are untraceable, CPIO cannot be held responsible for any malafide in the non-supply of information to applicant Ms Misha Singh and this would amount to a reasonable cause for the delay/failure to supply.

... a number of documents, which are held in public trust by the Department,have been admitted to have been mislaid. Simply stating that these are untraceable is not adequate excuse. If indeed, as suspected by the complainant, the files have actually been purloined this will amount to serious criminal act and its non-recovery a breach of trust on the part of the public authority. The Ministry of Environment & Forests will, therefore, immediately lodge a First Information Report (FIR) with the nearest Police Station to initiate criminal action against those responsible for this theft/loss.”( CIC/WB/A/2006/00435)

Voluntary disclosure

Section 4 (2) and (3) of the RTI Act calls for continuous improvement of publication of voluntary disclosures in keeping with the resources available. A citizen can complain in case the Department has not updated their suo-motu disclosure thus causing damage and risk ( Nizamuddin & Others vs. Directorate of Estates, Min. of Urban Development, New Delhi CIC/WB/C/2006/00081)

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APIO signing response

The Act has surely limited the APIO's role only to receiving applications for information and appeals and transmitting the same to their proper destination. His responsibilities are not coextensive with the PIOs. However, this action of the APIO should not create a special disability for the requester in exercising his rights under the Act.

In the normal course an applicant for information has a right to receive the reply from the PIO and the PIO only. We, however, see no legal difficulty in the PIO using the services of an APIO to transmit the former’s decision on the application for information through the APIO.

In our understanding, this will not lead to any miscarriage of justice or place undue restriction on an information seeker’s rights under the RTI Act.

We, however, like to caution that any order issued by a APIO on behalf of PIO must clearly state that the former was only transmitting the orders of latter and should also state the name and the designation of the PIO on whose behalf the APIO might be acting. This will enable the information seeker to bring against the PIO any charge of delay etc. if that happens to be the case. In this instant case, the order was, no doubt, signed by the Assistant PIO, Shri Ramesh Chand Sapra, but the order very clearly stated that this was from the “Office of the Public Information Officer-cum-Dy. Commissioner of Police: West Delhi” Quite obviously, therefore, the appellant was not handicapped in knowing the identity of PIO handling his case, even though the reply was signed by the APIO ( Ravinder Balwani vs. Joint Commissioner of Police, Southern Range, Delhi CIC/AT/A/2006/00059).

Any other officer signing response to requestor

Under the Act, the CPIO may take the assistance of any other officer from his department. Therefore, the documents signed on his behalf by any other officer designated by him should be acceptable to the appellant ( R.P. Azad vs. Office of the Development Commissioner (Handicrafts), Ministry of Textiles 111/IC(A)/2006)

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Deemed PIO

PIO, who has received the request form the requester is under obligation to seek information form his colleague and provide it to the requester. His colleague who was to provide the information as per s.5(5) would become deemed PIO and expected to provide the - PIO, who received the original request - the required information ( Yogesh Sharma, Survey of India, Dehradun CIC/AT/A/2006/00015)

Life & Liberty –s.7(1) :

On the question of life and liberty, this Commission has ruled as follows:

"Matter to be treated as one of life and liberty would require the following :

� The application be accompanied with substantive evidence that a threat to life and liberty exists (e.g. medical report)

� Agitation with the use of Ahinsa must be recognized as a bonafide form of protest, and therefore even if the claim of concern for life and liberty is not accepted, in a particular case by the public authority, the reasons for not doing so must be given in writing in disposing of the application" ( Shekhar Singh & Aruna Roy & Others vs. Prime Minister’s Office, CIC /WB/C/2006/00066)

On the question of life and liberty, Article 21 of the Indian Constitution reads as follows:

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Similarly proviso to sec. 7(1) deals with information sought being described as one that concerns the life or liberty of a person. Whereas matters of an administrative nature may not necessarily be considered a threat to life or liberty, programmes for demolition of inhabited structures must surely be so construed. It is open to the CPIO to rule that [since structures are no longer inhabited] the application is of no concern for life & liberty, he or she must satisfy himself/herself of this fact before so ruling, while the applicant can do so by providing substantive evidence of this (Nizamuddin vs. Delhi Development Authority CIC/WB/A/2006/00128).

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No extra fees other than prescribed

…it is mandatory for all the public authorities to adhere to the principle of maximum disclosure, and furnish the information, as and when sought by the citizens, for which they do not have to charge any extra money, other than what has been prescribed by the Govt. under the RTI fees and costs rules. The CPIO has charged an extra amount of Rs.50/- for handling his letters, which is illegal (Balmukund Rai vs. Life Insurance Corporation of India, Divisional Office, Jalandhar 204/IC(A)/2006).

Fee – Not to be charged

If the information was not provided within time limits specified under s.7(1), it shall be provided free of charge as per s.7(6) ( Raj Kumar vs. MCD CIC/AT/A/2005/00004).

Reasons for rejection of requests

Through this Order the Commission wants to send the message loud and clear that quoting provisions of Section 8 of the RTI Act ad libitum to deny the information requested for, by CPIOs/Appellate Authorities without giving any justification or grounds as to how these provisions are applicable is simply unacceptable and clearly amounts to malafide denial of legitimate information attracting penalties under section 20(1) of the Act ( Dhananjay Tripathi vs. Banaras Hindu University, VarnasiCIC/OK/A/2006/00163).

Reasons for rejection of requests

The PIO has to give the reasons for rejection of the request for information as required under Section 7(8)(i). Merely quoting the bare clause of the Act does not imply that the reasons have been given. The PIO should have intimated as to how he had come to the conclusion that rule 8(1)(j) was applicable in this case( Mahaveer Singhi vs. CPIO, Ministry of External Affairs, New Delhi CIC/OK/C/2006/00010).

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Information relating to Contracts Ramesh chand applied to NISCAIR(National Institute of Science Communication and Information) information on terms and conditions and their implementation regarding a contract with another firm. CIC held : A contract with a Public Authority is not 'confidential' offer completion. Quotations, bid, tender, prior to conclusion of a contract can be categorized as trade secret, but once concluded, the confidentiality of such transactions cannot be claimed. Any Public Authority claims exemption must be put to strictest proof that exemption is justifiably claimed. Public Authority was directed to disclose the information (Ramesh Chand Sai vs. National Institute of Science Communication & Information CIC/WB/C/2006/00176). Contracts and PAN

The Commission hereby directs the Respondents to provide all information regarding the contracts entered into by the Railway during the period asked for by charging the Applicant Rs.2/- per photocopies as prescribed in the Act. However, they may not disclose the Income Tax details like the PAN and TAN numbers of these contractors to the Applicant (Ajay Kumar Mohanty vs. East Coast Railways, Bhubaneshwar CIC/OK/A/2006/00284)

Details of security and surety submitted to the Bank

The complainant had sought certain information relating to the facility of bank guarantee availed of by an organization, particularly the details of security and surety submitted to the Bank.

The CPIO responded and mentioned that “information sought for are queries; the same will not be answered under RTI Act. Bank has also duty to maintain secrecy about the affairs of its constituents under Section 13(1) of Banking Companies (Acquisition & Transfer of Undertakings) Act, which is consistent keeping in view the Right to Privacy under Section 8(1) (j) of RTI Act,2005.”

CIC held: CPIO is … justified in informing the complainant that queries are not to be answered by him. The Bank is also obliged to maintain secrecy of the details of its clients. He could have also informed that information sought relate to third party, the disclosure of which is barred u/s 8(1) (d) of the Act. Moreover, the complainant has not indicated as

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what is public interest in disclosure of the information sought (P.N. Balachandran vs. Punjab National Bank, Integrated Zonal Office, Ahmedabad 218/IC(A)/2006).

I.T. Returns

Income Tax Returns filed by an assessee are confidential information which include details of commercial activities and that it relates to third person. These are submitted in fiduciary capacities. There is no public action involved in the matter. Disclosure is exempted under s.8(1)(j) ( Farida Hoosenally vs. The Chief Commissioner of Income Tax-IX , Mumbai 22/IC(A)/2006).

Tax Evasion Petition

An appellant had filed a Tax Evasion Petition (TEP) against Sh. J.P.Gupta and, on the basis of this TEP, investigations were carried out by the Income Tax Department. The proceedings initiated by the income-tax department, in pursuance of the tax evasions petition (TEP), and its outcomes should be disclosed, even without asking for such information by the petitioners. Krishan Lal Bansal vs. Office of the Commissioner of Income Tax, Delhi –XI, New Delhi 174/IC(A)/2006.

Cut-off marks

The appellant desired to know the marks obtained by him in the written examination as well as interview in the ‘S.O. (Audit) Exam-2005’ conducted by Staff Selection Commission (SSC). He also asked for the cut-off marks for OBC in the said examination.

The CPIO declined to furnish the information sought, without specifying the reason for denial of information. In a number of appeals / complaints received from the examinees against the CPIO of the SSC, the Commission has directed that the marks sheets should be furnished to the candidates along with cut off marks for various categories of candidates. In pursuance of those decisions, the SSC is expected to comply with the requests for mark sheet. In the instant case, the CPIO of SSC is directed to furnish the information (Nasim Ahmed vs. Staff Selection Commission, New Delhi 180 /IC(A)/2006)

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Legal opinion and fiduciary capacity

…copy of the legal opinion, as asked for by the appellant, was denied u/s 8(1)(e) of the Act, on the ground that the information was available with the respondent in “fiduciary capacity”… information pertain to a legal opinion obtained from an advocate, the disclosure of which has been justifiably denied u/s 8(1)(d) and (e) of the Act ( Madhukar S. Borkar vs. United India Insurance Co. Ltd., Chennai No.463/IC(A)/2006).

Customer’s information sought by third party [Section 8(1)(d)(e) & (i)] Secrecy of Customes’ Accounts held in fiduciary relationship

 

The Banks hold various types of information of its customers’ accounts in a fiduciary capacity; the information held by the ban is also personal to the account holder and involves commercial confidence and fall within the exemption provisions of Section 8(1)(d), (e) & (i) of the Act. Fiduciary relationship is based on trust and good faith, rather than legal obligation. Such relationship obligates the fiduciary to act for the benefit and interests of him, who reposes the trust in him (i.e. the fiduciary), in regard to the matter of trust. Some of the decided case law on the subject are:

AP Singh vs. Punjab National Bank, Zonal Office, Ludhiana, Padam Kumar Jain vs. Dena Bank , R.K. Modi Vs. PNB , Raval Babubhai Motibhai vs. State Bank of India, Anil Kumar vs. PNB, K.S. Bed vs. State Bank of India

Voluminous information.

ShriArunJaitley,M.P.(RajyaSabha) sought from CBI

• All documents, manuscripts and files pertaining to the freezing of Bank Account Nos.5A5151516M and 5A5151516L maintained at London (UK) by Mr. Ottavio

Quattrocchi (wanted by the Interpol vide Notice control No.A-44/2-1997) and his wife Mrs. Maria Quattrocchi, vide order dated 25.7.2003 passed by the Queen’s High Court at London.

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• All documents, manuscripts and files pertaining to the de-freezing of the said Bank Accounts of Mr. Quattrocchi and his wife, vide order dated 11.1.2006 passed by the said Court.

The CPIO declined on the following ground:

• “As the criminal case NO.RC.1(A)/90-ACU.IV/SIG against Mr. Ottavio Quattrocchi is pending in the Hon’ble Court of Chief Metropolitan Magistrate, Delhi and further, that some ongoing investigation is currently afoot, the documents and information asked for, can neither be provided nor allowed to be inspected at present.”

The case was heard on 31.7.2006. The appellant could not be present in the hearing nor there was any communication from him to this effect to the Commission, explaining the reasons for his absence. However, at least two persons, who claimed to be the appellant’s representatives, without having proper authorization from the appellant, desired to attend the hearing. On the assurance that the representatives of the appellant would send postfacto authorization within a day and on their own personal undertakings, they were allowed, with the concurrence of the CPIO of CBI, to participate in the hearing.

CIC held:

• The fact that the appellant, a Member of Parliament (RS) and a former Minister has sought access to the public records surely adds to the credence of the successful implementation of RTI Act. In the instant case, the information sought is huge and that are available in a large number of files, which are housed in two large rooms and kept in several cupboards under the custody of the CBI. Any attempt to compile

the voluminous information, so as to comply with the request of the appellant, may disproportionately divert the public resources, which is not permissible u/s 7(9) of the Act. The CBI is conducting further investigations under section 173(8) of the Cr.P.C. and, therefore, the issue of freezing and de-freezing of the accounts of Mr. Quattrocchi is not a closed matter, as contended by the appellant. In view of this, the exemptions claimed u/s 8(1)(h) by the CBI is justified.

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Process of Investigation – Departmental Proceedings

According to the appellant, relying on Cr.P.C., the term “investigation” would mean criminal investigation which may result in apprehension or prosecution of offenders… and departmental proceedings cannot be considered to be investigation to deny documents sought for by him applying the provisions of Section 8(1)(h) of the Act.

It is true that the term “investigation” has not been defined in the RTI Act. When a statute does not define a term, it is permissible to adopt the definition given in some other statute. If different definitions are given in different statutes for a particular term, then the one which could be more relevantly adoptable should be adopted taking into account the object and purpose of the Statute in which the definition is not available…the term “investigation” in respect of government officials could mean both investigation by the CBI, which could be termed as criminal investigation as well as investigation by the Department.

Commission referred to the Division Bench decision of the Commission in Shri Gobind Jha Vs ArmyHqrs., CIC/80/2006/ 00039, In that case, the appellant sought for various information including a copy of the report of investigation carried out on the basis of his complaint. The CPIO and AA declined to furnish a copy of the report applying the provisions of Section 8(1)(h) of the Act. Examining the provisions of Section 8(1)(h) of the Act, the Division Bench observed

“While in criminal law, an investigation can be said to be completed with the filing of charge sheet in the appropriate court by an investigating agency, in cases of vigilance related inquiries, misconduct and disciplinary matters, the investigation can be said to be over only when the competent authority makes a determination about the culpability or otherwise of the person or persons investigated against. In that sense, the word ‘investigation’ used in Section 8(1)(h) should be construed rather broadly and should include all inquiries, verification of records, assessments and so on which may be ordered in specific cases. In all such matters, the inquiry or investigation should be taken as completed only after the competent authority makes a prima facie determination about the presence or absence of guilt on receipt of the investigation/inquiry report from the investigation/inquiry officer”.

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Thus, from this decision, it is apparent that this Commission has not viewed the term ‘investigation’ as used in Section 8(1)(h) to apply exclusively to criminal investigation as propounded by the appellant in the present case. Therefore, the contention of the appellant that only when criminal investigation is pending, the provisions of Section 8(1)(j) could be applied, has to fail. Similarly in Shri D.L.Chandhok Vs. Central Wharehousing Corporation, this Commission has held that - “the term ‘investigation’ would include inquiries/search/scrutiny which would be either departmental or criminal and therefore when a departmental inquiry is on, the information sought in relation to such an inquiry can be denied in terms of Section 8(1)(h) of the Act”( Sarvesh Kaushal vs. Food Corporation of India 243,244/ICPB/2006).

Doctrine of Severability

Shri. Arvind Kejriwal sought from the CPIO, Ministry of Commerce & Industry,information in respect of the policy for allowing FDI in retail sector . CIC held :In terms of Section 8(1)((i), Cabinet decisions, the reasons thereof and the material on which the decisions were taken shall be made public after the decision is taken and the matter is complete except those covered under any of the exemptions in Section 8. Since in the present case, decision on FDI in Single Brand Retailing has been taken and also notified and no exemption is sought under Section 8, the CPIO or the AA could have furnished that portion of the Cabinet note relating to this matter and also the decision of the Cabinet on thesame, by applying the principle of severability as provided in Section 10(1). Therefore I direct the CPIO to provide, within 15 days, that portion of the Cabinet note dealing with FDI in Single Brand Retailing along with a copy of the file noting on the basis of which the same was included in the Cabinet note and the related decision of the Cabinet. In so far as the information relating to FDI in retailing is concerned, as agreed to by the CPIO during the hearing, the appellant be given inspection of the relevant file/files at a mutually agreed time, with the liberty to the appellant to take copies on payment of usual fees

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Bio-data forms and Medical reports

Bhagwan Chand Saxena asked for copies of the bio-data submitted by four candidates at the time of their appointment as Assistant Directors and also copies of their medical reports submitted by the medical authorities declaring these candidates as fit / unfit.

CIC held that when a candidate submits his application for appointment to a post under a P.A., the same becomes a public document and he cannot object to the disclosure on the ground of invasion of privacy and directed the PIO to provide copies of the bio-data.

As far as medical reports are concerned, they are purely personal to the individuals and furnishing of the copies of medical reports would amount to invasion of privacy of the individuals and need not be furnished. However PIO will disclose to the requester the information whether all the four candidates had been declared medically fit or not (Bhagwan Chand Saxena vs. Export Inspection Council of India, Ministry of Commerce, ICPB/A-9/CIC/2006).

Reasons of administrative Decisions

Under Section 4(1)(d) of the Act every public authority is required to give reasons for administrative or quasi judicial decisions are to be communicated to the affected persons : D.N. Kar vs. Chief Commissioner of Income Tax, Sanoth Kumar vs. AAI, Sarla Rastogi vs. E.S.I.C..

However, this is not to say that every public authority is obliged to

provide post facto reasons in all administrative matters previously decided, i.e. the reasons for any decision are those as may be found in the body of the decision or from the file in which that decision was made. Request, seeking reasons for a decision that hs already been taken by an authority cannot be regarded as existing information as defined under section 2(f) of the Act. There can be no obligation to provide informaiotn that is non-est: Virchand A. Shah vs. Central Excise Deptt.

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Conclusion, where an applicant seeks information regarding a decision that has been taken in the past and the reasons for that decision are incorporated in the body of the decision/file in which the decision is recorded, the application can be rejected. However this does not mean that reasons for decision don’t have to be communicated to affected party, reasons for every decision have to be made know to the affected party, except where such reasons re incorporated in the body of decision itself.

 

RTI Act cannot be made a tool of vendetta

In an appeal filed by one A.B.Avadhanlu Vs. SC Railway; [CIC/OK/A/2007/0123] while dismissing the appeal on 25.1.2008, Central Information Commission has passed the following order:

“In the present case, a brief background of the appellent to put the cases in perspective. The appellent, an ex employee of the railways, has been awarded punishment in more than 20 cases between the period January 1966 and October 1997. The charges included such serious allegations as deserting the booking counter, misappropriation of accounts, shortages at ticket counter, discourteous behaviour, preparing a duplicate muster and, on one occasion, parking his motor cycle on the railway tracks so that gate could not be closed by the gate man. As a result of these misdemeanors, he was punished by withholding of his increments for different periods ranging from three months to a year on at least 14 occasions. The Commission was surprised as to how the department had tolerated such an employee for so long. Now after retirement, this employee has taken to filing RTI applications one after the another so that as of now, the department has at least 55 of them- each one of them asking for information on several counts.

In today’s hearing, the Commission went through some of the files and came across such questions put by the applicant as: How much blood and urine were taken by the Railway Hospital/BZA?, What happened to the remaining urine and blood, was it donated to anybody by the railway doctors or used by themselves for their sake?.” Throughanother application, the Appellant has asked for action to be taken against some Railway employees adding “information may kindly be provided without

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taking this matter to the notice of the parliament through respected Speaker”. All in all, these questions present merely a bundle of senseless questions and mindless absurdities. The Appellent obviously is seeking to put the Public Authority under undue pressure and harass the officials because of some adverse action which the Department had taken against him. During the hearing, the Commission made it clear to the Appellant that the RTI Act cannot be made a tool of vendetta against the Department in which a person has served and has invited some adverse action during the course of service. It is in such cases that the Commission feels the need of some provision for punitive action against such Appellents”.

INFORMATION AVAILABLE WITH MULTIPLE PUBLIC AUTHORITIES

In Ketan Kanti Lal Vs CBEC CIC//AT/A/2008/01280 Dated 22.09.2009.It was held that it is the duty of the applicant to submit the application to the concerned Public Authority and not just any Authority.

MULTIPLE REQUEST IN A SINGLE APPLICATION ON MYRIAD SUBJECTS

The Act do not specify as to the Number of queries which an RTI applicant can make in a single application. In other words, there is no restriction on number of queries per application and filling of multiple applications by the same applicant. But recently the Hon’ble CIC in one of its decisions in the case of Chetan Kothari Vs president’s Sectt. Dated 23rd Sept. 2009 observed that unless the queries are inter connected the applicant has to restrict only one query per application or each query would attract separate application fee to be considered as a valid application. We feel frivolous and vexatious application with multiple queries may not be viewed favourably by the Hon’ble CIC till such time suitable amendments are put in place by the Parliament. 

In T K Roy VS DEPTT. OF LEGAL AFFAIRS CIC/AT/A/2009/000802 DT.15.01.10 as well as in case of Rajendra Singh Vs. CBI; Complaint No.CIC/WB/C/2007/00967; Date of Decision: 19.06.2009, it was held that the provision of Section 7(1) obligated an applicant to register in his RTI-application only one request or one type of request, which may have multiple facets. The Act doesn’t entitle an applicant to include in his application queries on myriad subjects and then expect the CPIO to

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despatch each part of the multiple queries to the point where the information was known to be or likely to be held.

However, we concede that a request may be comprised of a question with several clarificatory or supporting questions stemming from the information sought. Such an application will indeed be treated as a single request and charged for accordingly

Sweeping and open-ended queries without any measure of precision:-

In case of MANIK DADU PAWAR VS NEW INDIA ASSURANCE

COMPANY LTD CIC/AT/A/2008/01493 & 1498 Dated, the 15th

April, 2009.

The CPIO and the Appellate Authority had made the point that it was not possible for them to provide answers to the appellant’s sweeping and open-ended queries without any measure of precision, principally because such data was not centrally maintained and collecting and collating it would be a Herculean exercise, which would lead to inevitable diversion of the public authority’s resources, which will bring this entire matter within the scope of Section 7(9) of RTI Act.

Demands for the explanation / reasons from the public authority,

In the normal course, the several queries of the appellant listed in his RTI-application, being in the nature of demands for the explanation / reasons from the public authority, deserved to be rejected. These do not qualify to be ‘information’ under Section 2(f) of the RTI Act. The Commission has held in a number of past cases, that an applicant’s right to information did not extend to demanding and receiving explanations / reasons and decisions of a public authority or any of its officers. Tested against the above criterion, the present appeals / RTI-applications do not pass muster.

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Disclosure of Assets and Liability Statement of Public Servants

This question was dealt with by the division bench of the CIC in case of P P Rajeev vs Kochin Port trust ( Appeal No. CIC/AT/A/2008/00707 dated 29.05.2008) and the final judgement was left to the wisdom of the CPIO on a case to case basis. The final decision of the CIC is as under:-

We, therefore, reiterate that there cannot be an omnibus order about the disclosure of all immovable assets-related information of employees of public authorities. The government or the public authorities may frame rules about disclosure of this class of information held by them as filed by their employees, but till such time as these Rules are framed and, the condition of confidentiality in which such information is handed over to the public authority holds good, the request for their disclosure will have to be considered on a case-by-case basis under the provisions of Sections 8(1)(j) and 11(1) of the Act. Similarly, it shall be open to any public authority or the Government to voluntarily undertake to disclose this variety of information, fully or in part.

Accordingly, the present case is remitted back to the CPIO, Cochin Port Trust, with the direction that he will consider this matter under the provisions of Section 8(1)(j) and/or Section 11(1) of the RTI Act and then take a view as enjoined by either or both Sections, which shall be communicated to the appellant within 6 weeks from the date of the receipt of this order.

     

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INTRODUCTION A safe workplace is a woman’s legal right. The Constitutional doctrine of equality and personal liberty is contained in Articles 14, 15 and 21 of the Indian Constitution. These articles ensure a person’s right to equal protection under the law, to live a life free from discrimination on any ground and to protection of life and personal liberty. This is further reinforced by the UN Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), which was adopted by the UN General Assembly in 1979 and which is ratified by India. Often described as an international bill of rights for women, it calls for the equality of women and men in terms of human rights and fundamental freedoms in the political, economic, social, cultural and civil spheres. It underlines that discrimination and attacks on women’s dignity violate the principle of equality of rights. Sexual harassment constitutes a gross violation of women's right to equality and dignity. It has its roots in patriarchy and its attendant perception that men are superior to women and that some forms of violence against women are acceptable. One of these is workplace sexual harassment, which views various forms of such harassment, as harmless and trivial. Often, it is excused as ‘natural’ male behaviour or ‘harmless flirtation’ which women enjoy. Contrary to these perceptions, it causes serious harm and is also a strong manifestation of sex discrimination at the workplace. Not only is it an infringement of the fundamental rights of a woman, under Article 19(1) (g) of the Constitution of India “to practice any profession or to carry out any occupation, trade or business”; it erodes equality and puts the dignity and the physical and psychological well-being of workers at risk. This leads to poor productivity and a negative impact on lives and livelihoods. To further compound the matter, deep-rooted socio-cultural behavioural patterns, which create a gender hierarchy, tend to place responsibility on the victim, thereby increasing inequality in the workplace and in the society at large. Though sexual harassment at the workplace has assumed serious proportions, women do not report the matter to the concerned authorities in most cases due to fear of reprisal from the harasser, losing one’s livelihood, being stigmatized, or losing professional standing and personal reputation. Across the globe today, workplace sexual harassment is increasingly understood as a violation of women's rights and a form of violence against

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women. Indeed, the social construct of male privileges in society continues to be used to justify violence against women in the private and public sphere. In essence, sexual harassment is a mirror reflecting male power over women that sustains patriarchal relations. In a society where violence against women, both subtle and direct, is borne out of the patriarchal values, women are forced to conform to traditional gender roles. These patriarchal values and attitudes of both women and men pose the greatest challenge in resolution and prevention of sexual harassment. Workplace sexual harassment, like other forms of violence, is not harmless. It involves serious health, human, economic and social costs, which manifests themselves in the overall development indices of a nation. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 013 was enacted to ensure safe working spaces for women and to build enabling work environments that respect women’s right to equality of status and opportunity. An effective implementation of the Act will contribute to the realization of their right to gender equality, life and liberty, equality in working conditions everywhere. The sense of security at the workplace will improve women’s participation in work, resulting in their economic empowerment and inclusive growth. The full scale of the problem is not known given the difficulties in documenting the experience of those who have experienced workplace sexual harassment. However, available studies on sexual harassment show that it is certainly prevalent in India today. This is why the legislation is an important step forward within the larger architecture of women’s rights, as it tackles this issue to secure the rights of women workers across the country. While the official figures for women’s work participation are low, much of the work that women do is not captured in official data accounts. It is argued that where this is to be captured, women’s overall work participation would be 86.2 per cent. While the official data2 shows that women’s work participation rate is around 25.3 per cent in rural areas and 14.7 per cent in the urban areas, estimates indicate that there is a huge workforce of women, therefore there is a need to secure their workplace and entitlements. Given, that 93 per cent of women workers are employed in the informal sector, they remain unprotected by laws. With no laws or mechanisms to protect them, proactive measures are required to make their workplaces safe. It is well established that ensuring safe working conditions for women leads to a positive impact on their participation in the workforce and increases their productivity, which in turn benefits the nation as a whole. Economically, empowered women are key to the nation’s overall development and this can only be achieved if it is ensured that women’s workspaces across all sectors and all over the country have a safe and secure environment for work. It is important as well to ensure that the emphasis is

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on prevention rather than punitive action. This calls for widespread awareness on the Act among employers, managers and the workers themselves. Frequently, women workers may face sexual harassment but may not be aware that it is a breach of their rights and that there is something they can do about it. They need to know that they can do something about it. Then there are others who may believe that it is a personal matter that needs to be resolved by the people involved. In order to change this order of things, it is urgent that measures are taken to change mind-sets and attitudes by creating awareness about what constitutes sexual harassment and the steps that can be taken to address it. Today, all workplaces in India are mandated by law to provide a safe and secure working environment free from sexual harassment for all women.

 

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Sexual Harassment at Workplace - Gender Perspective

What is Gender

The word “Gender” was used by Ann Oakley and others in the 1970s to describe those characteristics of men and women which are socially determined, in contrast to those which are biologically determined. This distinction between gender and sex has very important implications. This distinction is made to emphasize that everything women and men do, and everything expected of them, with the exception of their sexually distinct functions (childbearing and breastfeeding; impregnation) can change, and does change, over time and according to changing and varied social and cultural factors.

A working definition of Gender

People are born female or male, but learn to be girls and boys who grow into women and men. They are taught appropriate behaviour and attitudes according to defined gender roles and activities. This learned behaviour is what makes up gender identity, and determines gender roles.

Gender Role Perception

Gender is a dynamic concept. Gender roles for women and men vary greatly from one culture to another, and from one social group to another within the same culture. Race, class, economic circumstances, age — all of these influence what is considered appropriate for women and men. Furthermore, as culture is dynamic and socio-economic conditions change over time, so gender patterns change with them.

Different roles and characteristics are assigned to people not only on the basis of their gender, but of their race, caste, class, ethnic background and age. Our social analysis becomes finer and social interventions more finely tuned, when we are aware of all the complex ways in which society slots people into different categories and roles, and of the ways these roles can be the basis of both cooperation and conflict. For neither women nor men form a homogeneous group in any society. Women may come into conflict with each other because of racial difference, or women of different nationalities or class groups may find solidarity in their gender identity.

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Gender Discrimination

As the worst fall out of disparity and mind blocks in the area of role perception, comes the vice of gender discrimination. The three most prominent facets of sexual discrimination are a) Societal Perpetration; b) Domestic Violence and c) Sexual Harassment at Workplace.

There are socially accepted expressions like “boys are boys” and norms supporting dowry, still prevalent in society. They highlight the unfortunate social approval towards sexual discrimination. So far as domestic violence is concerned, even after a decade since the Protection of Women from Domestic Violence Act was passed in 2005, there is no significant change in the crime rate against women. As per data published by National Crime Records Bureau (NCRB), dowry death was 0.3% of the total number of crimes, as defined under Indian Penal Code (IPC), in 2013. The figure remains the same in 2014. In fact, crime against women as percentage of total number of crimes committed in India has increased from 11.7% in 2013 to 11.9% in 2014.

However, perhaps the most unreported amongst these crimes are the ones amounting to “sexual harassment at workplace”. For one, there was no clear law on the subject before 2013 and for the other, many women are used to desist reporting. Even now, it is believed that a good number of them don’t report incidents of sexual harassment for reasons ranging from love to terror.

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Gender Budgeting

Background

Women and girls face various forms of vulnerability throughout the life cycle. They may face discrimination before or after birth; violence, harassment or abuse; neglect due to dependence and lack of access to resources; social prejudice; and exploitation – whether economic, political, social or religious. They are vulnerable to exploitation and discrimination regardless of where they are positioned on the economic and social spectrum. Additionally, their vulnerability increases significantly if they are poor, socially disadvantaged or live in a backward or remote area.

Gender Budgeting is a tool that can be used to address these vulnerabilities. However, before we discuss Gender Budgeting, it is important to understand the distinction between gender and sex1 and the gender inequalities that underpin the many barriers that women face. These must be identified and addressed through the planning, budgeting and development process. At the same time, the needs of men and boys must not be neglected.

Distinction between Gender and Sex

Gender reflects culturally and socially constructed roles, responsibilities, privileges, and expectations of women and men, boys and girls. Because these are socially constructed, they can change over time and differ from one place to another.

Sex is the biological difference between males and females. It refers to the physical attributes that we are born with. The terms male and female are universally understood. This understanding does not change over time or from one place to another.

We all grow up with different preconceptions regarding how women or men talk/behave. For example, we are raised to believe that women talk more, or it is the duty of women to cook and rear children or men don’t cry. This perception is constructed by society. However, as mentioned above, gender roles can change over time. For example, in the present time women balance their responsibilities both within and outside the household. Today we find more and more men support women by contributing to some of the household chores.

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Gender Budgeting

Gender Budgeting is a tool for gender mainstreaming. It uses Gender Budgeting is concerned with gendersensitive formulation of legislation, policies, plans, programmes and schemes; allocation and collection of resources; implementation and execution; monitoring, review, audit and impact assessment of programmes and schemes; and folow-up corrective action to address gender disparities

Clearly then, it is not only about the Budget and it is not just a one-time activity. It is a continuous process that must be applied to all levels and stages of the policy process. However, it recognises that the Budget is a powerful tool that can reduce the vulnerability of women and girls and transform their situation.

Gender Budgeting also recognises that if gender disparities are to be addressed, it is not enough to formulate gender sensitive legislations, programmes and schemes. Adequate monetary allocations are equally important for the achievement of desired outcomes. For example, the legal framework has been strengthened through the recently enacted/amended women-specific legislations like the Criminal Law Amendment Act, 2013, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 etc. However, it is only through the setting up of One Stop Centres that dedicated institutional mechanisms will be in place. It is through these Centres that women affected by violence both in private and public spaces, will be provided support and assistance in a women-friendly environment. It is for the first time that gender-based violence is experiencing a paradigm shift. It is not just a health issue or an issue that concerns women but it also concerns men.

Gender Budgeting and Appraisal of Legislation

The Maharashtra Employment Guarantee Scheme (MEGS) was initiated as a drought relief scheme in Sangli district in the 1960s. Subsequently, it was extended to the entire state in May 1972 and then enacted as the Maharashtra Employment Guarantee Act in 1977. It provided the right to work to all adult women and men. Women constituted a large proportion of those who demanded the right to work under the scheme. MGNREGA (Mahatma Gandhi National Rural Employment Guarantee Act) was patterned on the MEGS and includes several of its gender-sensitive provisions such as facilities for safe drinking water, first aid, shade for children etc., at the work site. However, while the MEGS guaranteed the Right to Work on Demand to all adults willing to do unskilled manual work provided they were above 18 years of age, MGNREGA provides the guarantee at the level of the household and not at the level of the individual. Therefore, the rights of women were

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subsumed under those of the household. An intervention by the Department of Women and Child Development led to the addition of a clause that required that at least one-third of the beneficiaries under NREGA should be women. Gender Budgeting was at a nascent stage in 2005 when the NREGA was being formulated. If, at that time, the Ministry of Rural Development had a vibrant Gender Budget Cell, DWCD may not have needed to intervene and the right to work may have been given to all adult individuals at the time of formulation of the Act.

The National Food Security Act, 2013, for example, provides for food and nutritional security by ensuring access to adequate quantity of quality food at affordable prices to people to live a life with dignity . However, under the Food Security Act, every pregnant and lactating mother is entitled to receive maternity benefit of Rs. 6000.

The Indira Gandhi Matritva Sahyog Yojana - a Maternity Benefit Scheme launched in 2010 and being implemented in 53 pilot districts - has been recast under the National Food Security Act, 2013. It ensures part compensation for wage loss to pregnant and lactating women before and after delivery of the child.

Gender Budgeting and the Budget

The Budget is not just an annual statement of receipts and expenditures. It is an instrument for fulfilling the obligations of the state and a political statement of the priorities set by the government in allocating resources. Budgets are necessarily political documents as well as instruments of economic policy.

Drawing attention to the myth of budget neutrality, Pregs Govender, former Chair of the South African Parliamentary Joint Monitoring Committee on the Improvement of the Quality of Life and Status of Women points out: “In determining economic policy and budgets we have to ask whose lives are being valued, and whose lives are not being valued? Whose work is valued and whose work is not valued?…. We have to value all our lives and all our work.”

As Elson explains, “Most governments have expressed a commitment to gender equality objectives and to gender mainstreaming, but often there is a gap between policy statements and the ways in which governments raise and spend money… Gender responsive budget initiatives can help to close these gaps, ensuring that public money is raised and spent more effectively.”

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Reasons why Government should implement Gender Budgeting Gender Budgeting enables:

Achievement of Gender Equity/Equality - The Constitution of India not only grants equality to women, but also empowers the State to adopt measures of positive discrimination in favour of women. However, wide gaps exist between the goals enunciated in the Constitution, legislation, policies, plans, programmes, and related mechanisms on the one hand and the situational reality of women and girls, on the other

Achieving gender equity/ equality requires recognition of different needs, preferences and interests which affect the way men and women benefit from policies and budgetary allocations. For example, Disha is a scholarship scheme of the Department of Science and Technology that provides support for women scientists. This scheme helps re-entry of women scientists after a break in their career paths due to social responsibilities. The UGC runs Day Care Centres for married scholars/students in universities and colleges for providing day care facility on demand basis for children of 3 months to 6 years of age is another example. To establish a fully literate society the Government has been successfully running the Adult Literacy Centres (Sakshar Bharat) throughout the country with focus on female literacy. The Bharatiya Mahila Bank Ltd, first of its kind in the banking industry in India and the Pradhan Mantri Jan Dhan Yojana besides promoting financial inclusion would emerge as a catalyst for gender justice and equality.

Monitoring the achievement of policy goals – Gender Budgeting is a tool to monitor the achievement of the goals of the National Policy for Empowerment of Women 2001 and other policy goals in a gender-aware manner. 6.3 Valuing Unpaid Work – The traditional concept of an economy does not take unpaid work like child care, household work like cooking, cleaning, fetching water, caring for the elderly and voluntary work for civil society into account. It is to be noted that the work of the unpaid sector plus the work of the monetary economic sector result in the total economic output of a society. Therefore methods of supporting the women (and men) who contribute to the nation through unpaid work and lessening their burden, must be identified. For example under the National Rural Drinking Water Programme (NRDWP) at the state level, 47% of the funds are allocated for coverage7 . This is necessary to relieve women and girls especially, from the drudgery of fetching water, address malnutrition, and increase the time available for education and leisure, while also preventing the contamination that is likely while fetching water from a distant source. Another example of labour saving investment is the Rajiv Gandhi Gramin LPG Vitrak Yojana (RGGLVY) of the Ministry of Petroleum and Natural Gas wherein BPL families are provided with LPG connections.

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Gender and International Conventions/ Conferences

A number of international meetings have been convened that have the potential for transforming the reality of women’s lives. At many of these meetings Government of India has committed to taking action to improve the situation of women. The following are among the international commitments to which Government of India is party:

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which Government of India signed in 1980 and ratified on 9th July 1993. l The Convention on the Rights of the Child that came into force in 1990 and was ratified by India in 1992.

The World Conference on Human Rights in Vienna (1993) asserted that women’s rights are human rights. l The International Conference on Population and Development (ICPD) in Cairo (1994) placed women’s rights and health at the centre of population and development strategies. l At the Fourth World Conference of Women in Beijing (1995), governments declared their determination “to advance the goals of equality, development and peace for all women everywhere in the interest of all humanity”.

In the 1995 Commonwealth Plan of Action on Gender and Development governments declared their vision of a world “in which women and men have equal rights and opportunities in all stages of their lives”.

The UN Millennium Declaration adopted at the Millennium Summit in September 2000. The Millennium Development Goals adopted by all Member States call for progress towards eradication of extreme poverty and hunger, gender equality and empowerment of women, maternal health, reduction in child mortality and universal primary education.

The United Nations Convention on the Rights of Persons with Disabilities adopted on 13th December 2006.

The Year 2015 declared by United Nations as the year of ‘Global Action’, for achieving a meaningful Post-2015 Development Agenda. Gender Budgeting can contribute to the attainment of the Post-2015 Development Agenda by tracking public expenditure against gender and development policy commitments made nationally and internationally. 8. Stakeholders in Gender Budgeting

The private sector has an important role to play in promoting gender equality and women’s empowerment as the role of the private sector today is immense in terms of producing goods and providing services that were once the exclusive responsibility of the Government. Public-Private Partnerships (PPPs) and other forms of cooperation between the private sector and local and national governments are used frequently to develop and provide services like extending telecommunications and transportation systems,

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construct and operate water, sewer, and waste treatment facilities, providing health, education and so on. It is essential therefore that the private sector takes full account of the gender implications of its investments as well as its own internal operations – how it employs people and how it deals with those with whom it does business. It thus has a major role to play in promoting policies that step up equality and women’s empowerment. For example, creating opportunities for enrolment of women in medical colleges, enforcing the implementation of PCPNDT Act in private hospitals to monitor the sex ratio at birth, imparting handson training in safe abortion care to the abortion service provider or strict enforcement of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 to provide all women a safe working environment. This could be done by amending company policies to include sexual harassment redressal provisions, the role of their human resource departments, and code of conduct to prevent and address sexual harassment at the workplace.

Scope of Gender Budgeting

Gender Budgeting can be applied to the entire National Budget or to the Budget of a State or Local Body. It can be applied to a selected Department or just one programme, which may be an existing programme or a new programme. It can be applied on the expenditure side or the revenue side. It can be applied to new or existing Legislation. Researchers in India have applied Gender Budgeting to each of these aspects.

Since gender is a cross cutting issue, Gender Budgeting should not be confined to ‘social’ sectors such as education, health and welfare.

Gender Budgeting and Revenue Generation

The focus in Gender Budgeting has primarily been on the expenditure side or allocations in the Budget for implementing particular programmes, projects and schemes. However, it is also important to review the revenue generation aspect of the Budget.

Taxation policies can be designed while keeping in view the prevailing gender inequalities in property ownership, unequal contribution to unpaid labour within the household, gender differentials in wages, etc. For instance, for many years there was positive discrimination in favour of women who filed income tax returns. However, over the past few years, this has been withdrawn.12 10.3 In a recent initiative, Government has launched the Sukanya Samridhi Yojana, a small deposit scheme exclusively for the girl child. The scheme would fetch yearly interest rate of 9.1 per cent and provide income tax deduction under section 80C of the Income Tax Act, 1961. Girls

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upto 10 years of age or born after 2.12.2003 can open an account under the scheme and can close it after completion of 21 years. The minimum deposit should be for Rs. 1000, while the maximum could be Rs. 1.5 lakh during a particular financial year.

Gender Implications of Tax Policies

Property is primarily owned by men. Tax systems can create incentives to increase women’s ownership of property. For instance, the Department of Registration and Stamps, Rajasthan, offers a 50 per cent reduction in the stamp duty for agricultural land, if the land is registered in a woman’s name. Stamp duty was reduced from 8 per cent to 5 per cent, in the case of a gift deed of immovable property executed in favour of a sister/ daughter/granddaughter/mother or wife.

It show that there is no single method of implementing Gender Budgeting. The common theme is to identify different ways of bridging gender disparities through Gender Budgeting. Different tools can be used to implement Gender Budgeting in different situations and many initiatives taken by Ministries and Departments in this regard. Gender Budgeting can be applied at each stage of Budget making. The challenge is to institutionalise Gender Budgeting until it becomes a natural part of good budgeting practice.

Gender Budgeting has been adopted in 16 States and 2 Union Territory Administrations within India. Based on the Guidelines issued by the Government of India, most of these States/UTs have introduced a Gender Budget Statement, a Gender Budget Cell, designated a Nodal Officer within the Gender Budget Cell, implemented Gender Sensitive Schemes and identified tools/method for monitoring and evaluation of schemes/programmes.

In addition to this, the Ministry of Women and Child Development has conducted trainings and orientation programmes on Gender Budgeting for officials of departments at the State/UT level as well as at the three tiers of the Panchayati Raj Institutions. The trainings helped in building the capacities of officials, enabling them to implement Gender Budgeting within their respective departments at the State/UT level.

A concern that exists with regard to the implementation of Gender Budgeting at the State/ UT level is who should undertake the exercise of Gender Budgeting. While the Department of Women and Child Development (DWCD) at the state level are considered to be the nodal authority to mainstream concerns of women, it is not realistic and feasible for the DWCDs to single-handedly address the concerns faced by women in various sectors without the other line departments also giving enough attention to the exercise. Hence, in consultation with the DWCD, the line departments could take up

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the responsibility of identifying specific disadvantages faced by women in their respective sectors, which would be the first step to planning interventions towards addressing gender related challenges.

A key recommendation14 has been that within States, the gender focal point should be pursued through the forum of the State Planning Board, Annual Plan of respective states should be evaluated and a Gender Task Force should be formulated at the state, district, block, village/Urban Local Bodies levels

Implementation of Gender Budgeting at the State/UT level could be holistically achieved when Gender Budgeting as a process, method or a tool is taken to the local (rural and urban) level. The primary objective should be to ensure that the most marginalized are empowered and are able to accrue the benefits of any development project/ programme.

As a pilot project/ exercise could be undertaken at the Panchayat level, which is to formulate a District Budget or a State Budget for a few selected Panchayats. This will create awareness and develop skills on Gender Budgeting at the grassroots planning level and may also bring forth some important learning lessons.

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Forms & Kinds of Sexual Harassment, Impact & Consequences

Sexual Harassment has traditionally been divided into three well-known forms:-

• Quid pro Quo; • Hostile work environment; and • Violation of Human Rights

i. ‘Quid Pro Quo’ literally means ‘this for that’. Applying this to sexual

harassment, it means seeking sexual favours or advances in exchange for work benefits such as promises of promotion, higher pay, academic advancements etc. This type of sexual harassment mostly holds a woman to ransom as her refusal to comply with a ‘request’ can be met with retaliatory action such as dismissal, demotion, memos, tarnished work record and difficult work conditions.

ii. ‘Hostile work environment’ is a less clear yet more pervasive form of sexual harassment. It commonly involves conditions of work or behaviour towards a female worker, which make it unbearable for her to be there. While the worker is never promised or denied anything in this context, unwelcome sexual harassment occurs simply because she is a woman.

iii. Violation of Human Rights Acts of Sexual Harassment within the workplace have long been recognized as Violation of Human Rights.

Different Kinds of Sexual Harassment

In the absence of any specific law to pinpoint and prevent incidents sexual harassment, a number of surveys revealed that a long list of unwelcome actions by fellow colleagues are causing harassment among women workers. Prominent of them are:

a) Derogatory comments of a sexual nature or based on gender; b) Presence of sexual visual material, such as posters, cartoons,

drawings, calendars, pinups, pictures, computer programs of a sexual nature;

c) Written material that is sexual in nature, such as notes or e-mail containing sexual comments;

d) Comments about clothing, personal behavior, or a person’s body; e) Patting, stroking grabbing or pinching one’s body; f) Obscene phone calls; g) Telling lies or spreading rumors about a person’s personal or sex

life; h) Rape or attempted rape and so on.

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Impact and Consequences

While it was being increasingly found difficult to find any legal remedy against such sexual overtures, nobody could deny the ill effects they cause on overall work atmosphere and productivity of any organization. The menace was causing innumerable incidents of harassment also in the unorganized sectors. Any workplace coming under the grip of this growing evil had cumulative effects on the whole organization; its impact on individual women was multiple and added up to losses for the organization as a whole.

Whenever sexual harassment had become so unpleasant and make a worker’s life miserable, she would seek redressal under the extant law such as Section 354 (outraging of modesty) or Section 509 (insulting of modesty) of the Indian Penal Code. She would also seek alternative employment. The employer would on its part, incur significant costs in defending its image and in finding suitable replacements for both the errant and the harassed members of its workforce. Generally, therefore, it had been in the interest of employers that the working environment provides that the workers are treated with dignity. Besides, there is no denying the fact, that for a society as a whole, sexual harassment impedes the achievement of equality.

Looking from the angle of human resources, sexual harassment causes a range of ill effects like:

a) Self-blame and guilt; b) Insomnia or other sleep disturbances; c) Depression; d) Anxiety, fear, decreased interest in work; e) Restlessness, uncertainty about future; f) Physical or emotional withdrawal from friends, family and co-

workers and so on.

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Promulgation of the Law

Under such a situation, when whole country was feeling an urgent need for a well defined law, and in the backdrop of the infamous incident of alleged rape of a poor health worker Bhanwari Devi, in 1992 came landmark guidelines from the Hon’ble Supreme Court of India. In the matter of Vishakha & Others vs State of Rajasthan, Supreme Court defined sexual harassment at workplace, for the first time in 1997 and promulgated measures to curb it by strongly advocating a code of conduct in every workplace. Though often referred to as a set of guidelines, this was no less than a law. For, the Supreme Court pronounced:

“ …(in) the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, we lay down the guidelines and norms specified hereinafter for due observance at all work places or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it is further emphasised that this would be treated as the law declared by this Court under Article 141 of the Constitution.”

In this epic judgment, the Supreme Court also recognized it as a Human Rights issue and pointed out the legal vacuum to address the concern of the sexually harassed women, when it pronounced:

“HAVING REGARD to the definition of 'human rights' in Section 2(d) of the Protection of Human Rights Act, 1993, TAKING NOTE of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places and that enactment of such legislation will take considerable time, It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women:

The term “Sexual Harassment”, undefined so far, was unambiguously defined for the first time. As the Supreme Court defines:

“..For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:

a) physical contact and advances;

b) a demand or request for sexual favours;

c) sexually coloured remarks;

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d) showing pornography;

e) any other unwelcome physical verbal or non-verbal conduct of sexual nature.

Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension that in relation to the victim's employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.”

The complaint handling mechanism, complaints committee formation, awareness generation are the other aspects mentioned in this judgment as well. In an effect, a whole window of possibilities opened up for all sectors to consolidate their action in a unified manner to uproot sexual harassment from its origin and to provide healthy work atmosphere for women.

Post Vishakha judgment, Supreme Court noticed an important gap in attitude of the employers in their dealings with the complaints of sexual harassment cases. Earlier, the definition of sexual harassment was being taken literally, without going into its spirit and there had been hardly any compliance to the international commitment made by India and its ratification of “The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)” – adopted by United Nations General Assembly in 1979.

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The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

Who is an Employer?

An employer refers to:

I. The head of the department, organisation, undertaking, establishment,

enterprise, institution, office, branch or unit of the Appropriate Government or local authority or such officer specified in this behalf.

II. Any person (whether contractual or not) responsible for the management, supervision and control of a designated workplace not covered under clause (1).

III. A person or a household who employs or benefits from the

employment of domestic worker or women employees.

Who is an Appropriate Government? As per the Act, Appropriate Government means: i. In relation to a workplace which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly—

a. By the Central Government or the Union Territory administration, the Central Government;

b. By the State Government, the State Government; ii. In relation to any workplace not covered under sub-clause (i) and falling within its territory, the State Government. Who is a District Officer (DO)? State Governments will notify a District Magistrate/Additional District Magistrate/ Collector/Deputy Collector as a District Officer at the local level. The District Officer will be responsible for carrying out the powers and functions under the Act at the district levels (including every block, taluka, tehsil, ward, and municipality.

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Responsibilities of the aforementioned authorities Under the law the employer/DO is obliged to create a workplace free of sexual harassment. It is the responsibility of the Employer/District Officer in general to: 1. Create and communicate a detailed policy; 2. Ensure awareness and orientation on the issue; 3. Constitute Complaints Committee/s in every workplace and district so that every working woman is provided with a mechanism for redress of her complaint(s); 4. Ensure Complaints Committees are trained in both skill and capacity; 5. Prepare an annual report and report to the respective state government; 6. District Officer will also appoint a nodal officer to receive complaints at the local level. Complaints Committee/s The Act provides for two kinds of complaints mechanisms: Internal Complaints Committee (ICC) and Local Complaints Committee (LCC). All Complaints Committees must have 50 per cent representation of women. ICC or LCC members will hold their position not exceeding three years from the date of their nomination or appointment. Internal Complaints Committee (ICC) Every employer is obliged to constitute an ICC through a written order. The ICC will be composed of the following members: 1. Chairperson- Women working at senior level as employee; if not available then nominated from other office/units/ department/ workplace of the same employer. 2. Members (minimum-2) From amongst employees committed to the cause of women/ having legal knowledge/experience in social work. 3. Member- From amongst NGO/associations committed to the cause of women or a person familiar with the issue of Sexual Harassment. Where the office or administrative units of a workplace are located in different places, division or sub-division, an ICC has to be set up at every administrative unit and office.

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ICC/LCC are mandatory The employee who had a fundamental right to a workplace free of sexual harassment, had complained about sexual harassment. According to the Court, had the organisation complied with the Vishaka Guidelines and set up such a Complaints Committee, the preventative benefit would have been three-fold:

1. Ensured a place where women employees could seek redress;

2. Sent a clear message to the workplace that such complaints would be enquired into by a specially designated committee with external expertise;

3. Prevented a series of litigation that followed.

Hence, the Madras High Court awarded Rs. 1.68 crores in damages to an employee for the nonconstitution of a Complaints Committee by the employer, as per the Vishaka Guidelines (at the time of the complaint, the Sexual Harassment of Women at Workplace Act 2013 had not been enacted). Ms. G v. ISG Novasoft Technologies Ltd. Madras High Court (Crl.R.C.No.370 of 2014 order dated 02.09. 2014. Original Petition No.463 of 2012 Local Complaints Committee (LCC) The District Officer will constitute an LCC in every district so as to enable women in the unorganisedmsector or small establishments to work in an environment free of sexual harassment. The LCC will receive complaints:

1. From women working in an organisation having less than 10 workers;

2. When the complaint is against the employer himself;

3. From domestic workers. The LCC will be composed of the following members: 1. Chairperson: Nominated from amongst the eminent women in the field of social work and committed to the cause of women. 2. Member : Nominated from amongst the women working in the block, taluka or tehsil or ward or municipality in the district 3. Members (2 in number)- Nominated from amongst such NGO/associations/persons committed to the cause of women or familiar with the issues relating to sexual harassment, provided that:

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• At least one must be a woman • At least one must have a background of law or legal Knowledge 4. Ex Officio member- The concerned officer dealing with social welfare or women and child development in the district *One of the nominees shall be a woman belonging to the SC/ST/OBC/Minority community notified by the Central Government. External Members on the Complaints Committee/s The Act refers to external members, which generally means persons who have expertise with the issue of sexual harassment. Given the largely intangible nature of workplace sexual harassment, there are a range of complexities involved in responding effectively to workplace sexual harassment complaints. For this reason, external third party/ members on the Complaints Committee/s (from civil society or legal background) should possess the following attributes:

1. Demonstrated knowledge, skill and capacity in dealing with workplace sexual harassment issues/complaints;

2. Sound grasp and practice of the legal aspects/implications.

Such expertise will greatly benefit Complaints Committees in terms of fair and informed handling of complaints to lead to sound outcomes. These external third party members shall be paid for their services on the Complaints Committees as prescribed. Criteria for the External Member A ‘person familiar with issues relating to women’ would mean such persons who have expertise in issues related to sexual harassment and may include any of the following: • At least 5 years of experience as a social worker, working towards women’s empowerment and in particular, addressing workplace sexual harassment; • Familiarity with labour, service, civil or criminal law.

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Employers/District Officers are responsible for complying with prohibition, prevention and redress of workplace sexual harassment. In practice, this means having a policy that: (1) prohibits unwelcome behaviour that constitutes workplace sexual harassment; (2) champions prevention of workplace sexual harassment through orientation, awareness and sensitization sessions; and (3) provides a detailed framework for redress. Dissemination of Information and Awareness Generation Employers/ District Officers have a legal responsibility to:

1. Effectively communicate a policy that prohibits unwelcome behaviour that constitutes workplace sexual harassment, and provides a detailed framework for prevention, and redress process.

2. Carry out awareness and orientation for all employees.

3. Create forums for dialogue i.e. Panchayati Raj Institutions, Gram Sabhas, Women’s Groups, Urban Local Bodies or like bodies, as appropriate.

4. Ensure capacity and skill building of Complaints Committees. Widely publicize names and contact details of Complaints Committee members.

Generally, where there are less than ten workers, any woman employee can complain to the Local Complaints Committee with the support of the Nodal Officer, when required. It is the responsibility of the District Officer to designate a person as the Nodal Officer in every block, taluka and tehsil in rural or tribal areas and wards or municipalities in the urban areas, to receive the complaints of workplace sexual harassment from women. The Nodal Officer will forward all such complaints within seven days of its receipt to the concerned Complaints Committee for appropriate action. In most other workplaces, a woman employee can make a complaint to the Internal Complaints Committee.

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What should the complaint contain? The written complaint should contain a description of each incident(s). It should include relevant dates, timings and locations; name of the respondent(s); and the working relationship between the parties. A person designated to manage the workplace sexual harassment complaint is required to provide assistance in writing of the complaint if the complainant seeks it for any reason. The written complaint should contain a description of each incident(s). It should include relevant dates, timings and locations; name of the respondent(s); and the working relationship between the parties. A person designated to manage the workplace sexual harassment complaint is required to provide assistance in writing of the complaint if the complainant seeks it for any reason. What can an employee/worker expect? When it comes to redress for workplace sexual harassment, employee/worker has a right to expect -a trained, skilled and competent Complaints Committee, a time bound process, information confidentiality, assurance of non-retaliation, counselling or other enabling support where needed and assistance if the complainant opts for criminal proceedings. Rights of the Complainant • An empathetic attitude from the Complaints Committee so that she can state her grievance in a fearless environment • A copy of the statement along with all the evidence and a list of witnesses submitted by the respondent Keeping her identity confidential throughout the process • Support, in lodging FIR in case she chooses to lodge criminal proceedings • In case of fear of intimidation from the respondent, her statement can be recorded in absence of the respondent • Right to appeal, in case, not satisfied with the recommendations/findings of the Complaints Committee

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Rights of the Respondent • A patient hearing to present his case in a non-biased manner • A copy of the statement along with all the evidence and a list of witnesses submitted by the complainant • Keeping his identity confidential throughout the process • Right to appeal in case not satisfied with the recommendations/findings of the Complaints Committee Key Responsibilities

To effectively address workplace sexual harassment complaints, a Complaints Committees must first be aware of their key responsibilities, some of which are highlighted below: 1. Be thoroughly prepared 2. Know the Act, Policy and/or relevant Service Rules 3. Gather and record all relevant information 4. Determine the main issues in the complaint 5. Prepare relevant interview questions 6. Conduct necessary interviews 7. Ensure parties are made aware of the process and their rights/responsibilities within it 8. Analyse information gathered 9. Prepare the report with findings/recommendations Knowledge, Skills, Training Dealing with workplace sexual harassment complaints is often complex. Hence Complaints Committee/s must possess critical skills/capacity to effectively carry out their role. That includes a sound Dealing with workplace sexual harassment complaints is often complex. Hence Complaints Committee/s must possess critical skills/capacity to effectively carry out their role. That includes Vishaka Guidelines, applicable Service Rules, relevant laws and an understanding of workplace sexual harassment and related issues. Complaints Committee skills must include an ability to synthesize information i.e. relevant documents, the law and interviews. They should also be able to communicate effectively, write clearly, listen actively and conduct interviews. They should be competent at showing

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empathy, being impartial and being thorough. They should be able to identify sexual harassment and its impact. A Complaints Committee/s is required to be trained in both skill and capacity to carry out a fair and informed inquiry into a complaint of workplace sexual harassment. An absence of such training will lead to unequal and unfair results, which can cost employers, employees, complainants as well as respondents. Fair and Informed Inquiry Within 6 months of joining The Statesman newspaper, Rina Mukerhjee lost her job. While the company alleged that her work was “tardy” and “lacking in quality” it suppressed Rina’s complaint of sexual harassment against the news coordinator, Ishan Joshi. Within her first month of work, Rina had taken her complaint directly to the Managing Director, Ravinder Kumar. Time passed, nothing happened and Rina was fired. In a rare display of social context insight and clarity, the Industrial Tribunal (West Bengal) rejected the Statesman’s claim that Rina only referred to “professional” harassment in her complaint to Mr. Kumar. In the Tribunal’s view, Mr. Kumar’s failure to dig deeper was clearly suspect- “... it becomes clear that there was no Committee on Sexual Harassment, as per the Honb’le Supreme Court’s direction in Vishaka vs State of Rajasthan, existing in The Statesman, at that relevant time. ...to expect-the lady workman to file a written complaint and not to believe the same, when it has been filed ‘at a later date’ is sheer bias.” The Statesman was ordered to reinstate Rina and grant her full back wages. M/s The Statesmen Ltd. and Smt. Rina Mukherjee. Order of K.K. Kumai, Judge, dated 06.02.2013, Fourth Industrial Labour Tribunal (West Bengal) Do’s and Don’ts for Complaints Commitee DO’S

• Create an enabling meeting environment • Use body language that communicates complete attention to the

parties • Treat the complainant with respect • Discard pre-determined ideas • Determine the harm

DON’TS

• Get aggressive • Insist on a graphic description of the sexual harassment. • Interrupt • Discuss the complaint in the Public

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The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013- Salient Features

Since there was no specific law to deal with the issue of sexual harassment at workplace, Vishakha guidelines, given by the Supreme Court became the only guiding principles. In absence of a law and its punitive provisions, the seriousness of the problem was getting diluted, in spite of Supreme Court’s intervention in various cases. Therefore, the Government as well as the Civil Society felt an urgent need to enact a specific Act for this purpose. All these efforts resulted in the enactment of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 on 9th December, 2013.

Under its Statement of Reason of this Act, both Constitutional commitments and International obligations are spelt at as follows:

“WHEREAS sexual harassment results in violation of the fundamental rights of a woman to equality under articles 14 and 15 of the Constitution of lndia and her right to life and to live with dignity under article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment;

AND WHEREAS the protection against sexual harassment and the right to work with dignity are universally recognised human rights by international conventions and instruments such as Convention on the Elimination of all form of Discrimination against Women, which has been ratified on the 25th June, 1993 by the Government of India;

AND WHEREAS it is expedient to make provisions for giving effect to the said Convention for protection of women against sexual harassment at workplace…”

The salient features of SHW Act are as follows:

i) In the definition of “Aggrieved Women” the Act has included “unemployed women” also. Taking further steps on the base work of Vishakha judgment, the Act defines “Internal Complaints Committee” and “Local Complaints Committee”. It has spelt out steps for dealing with the complaints, punitive provisions for both abuse and non-compliance of the Act, reporting mechanism and level of courts, among many other important and relevant matters.

ii) The Act states its objectives as prevention of violation of fundamental rights of a woman employee under article 14 (equal protection under the laws), article 15 (prohibition of

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discrimination on race, caste, religion, sex, etc.) and article 21 (protection of life and personal liberty) of the Constitution of India.

iii) Section 2(n) of the Act provides an inclusive definition of sexual harassment of a woman employee at work place. Sexual harassment includes:

a) Physical contact and advances; b) A demand or request for sexual favours; c) Making sexually coloured remarks; d) Showing pornography; and e) Any other unwelcome physical, verbal, or non-verbal

conduct of sexual nature.

iv) While points (a) to (d) above are self-explanatory, point (e) is very wide and would also cover the following instances:

a) Any verbal comment or sound which may be construed as sexual in nature;

b) Sharing adult jokes may also be construed as sexual in nature;

c) Staring, or touching, or patting; d) Stalking a woman employee; e) Checking out a woman employee; and f) Other gestures, sounds or comments which may be

construed as sexual in nature.

v) Any implicit or explicit promise of preferential treatment or detrimental treatment or creation of hostile environment in her employment for gaining sexual favours would be construed as ‘sexual harassment’.

vi) Constitution of Internal Complaints Committee (Section 4): Every employer, employing 10 (ten) or more employees, would be legally bound to constitute an Internal Complaints Committee, which would comprise employees and a member of non-government organisation. The presiding officer of the Internal Committee would need to be a woman employee.

vii) Constitution of Local Complaints Committee(Section 5): The government may notify a District Magistrate or Additional District Magistrate or Collector as “District Authority” to exercise powers or discharge functions for every district under the Act. The District Authority is to constitute Local Complaints

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Committee referred to as Local Committee, with a woman as its chairperson.

viii)Complaint by the aggrieved woman employee and redressal thereof: An aggrieved woman employee, or her legal heir on her behalf, or with her written permission any other person, may make a written complaint to the Internal Committee within a period of 3 (three) months from the date of the sexual harassment incident. If the employer doesn’t constitute Internal Committee, the aggrieved woman employee may make a written complaint to the Local Committee. The above period of 3 (three) months may be extended by another 3 (three) months if reasonable reasons exist for delay in filing a complaint.

ix) On the request of aggrieved employee, the Committee may initiate conciliation process. It may be noted that the Act doesn’t allow monetary settlement during conciliation process (Section 10)

x) If aggrieved woman employee doesn’t choose conciliation process, then the Committee would need to conduct inquiry proceedings into the compliant in accordance with the principles of natural justice.

xi) For the purposes of inquiry, the Committee will have all the powers of civil court [Section 11(3)] under the Code of Civil Procedure, 1908 in respect of:

a) Summoning and enforcing attendance of any person and examining him/her on oath;

b) Requiring discovery and/or production of a document.

xii) The process for inquiry of compliant filed by an aggrieved woman employee would need to be completed within a period of 90 (ninety) days [Section 11(4)] from the date of filing of compliant with the Committee. Within 10 (ten) days after the conclusion of inquiry proceedings, the Committee will need to send its report and recommendations to the employer or District Authority, as the case may be.

xiii)If the compliant is found to be malicious [Section 14(2)], the Committee may recommend action against the woman employee. Identity and address of the victim shall be kept confidential by the Committee and government officers.

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xiv) If the alleged offender is proved guilty, the Committee has the authority to order the offender to make a payment of such compensation to aggrieved woman as it may deem fit. If the offender fails to pay the compensation to the aggrieved woman employee, District Authority may recover the amount as a land revenue.

xv) On the recommendation of Committee, employer or District Authority may also take the following actions against the offender:

a) Written apology; b) Warning, reprimand or censure; c) Withholding of promotion or pay rise; d) Termination of employment; e) Undertaking counselling sessions or community service.

xvi) The punishment under the Act would be in accordance

with services rules of the employer. In the event employer doesn’t have service rules, then punishment would be in accordance with the rules under the Act.

xvii) Any person aggrieved with the recommendations of the Committee may appeal within 90 (ninety) days to the appellate authority.

xviii) The Act specifically enlists the following as the duties of employer(Section 19):

a) Provide a safe working environment; b) Display at a conspicuous place, penal consequences for

sexual harassment; c) Organise workshops for employees and orientation

programs for the Committee; d) Assist in securing the attendance of offender and witness; e) Provide assistance to aggrieved woman employee; f) Initiate action under Indian Penal Code if the offence

requires such action or offender is not an employee.

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Implementation of the Act

Enactment itself does not suffice. It calls for effective and timely implementation in all deserving cases. In one of the important cases, Madras High Court has questioned the rightful understanding of the law in the matter of M.Kavya and Vidya T Appukutta Vs The Chairman, University Grants Commission and two others. It has reminded that under the Act it is obligatory for the employers to organize workshops and awareness programmes at regular intervals for sensitizing the employees towards the provisions of the Act.

 

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Global Norms & Good Practices for Prevention

Increasing awareness and compliance with international standards is a reminder that we must not lose sight of the goal. Over the years, the international community has developed benchmarks that provide guidance on what the laws around workplace sexual harassment should look like in practice. The key benchmarks are listed below: 1. Recognition that workplace sexual harassment is a form of human rights violation. 2. Recognition that sexual harassment is a form of gender-specific violence. 3. Equality, dignity and worth of a human person must be emphasized. 4. Gender-based violence includes sexual harassment and impairs the enjoyment by women of several basic human rights and fundamental freedoms. Some of these rights include: The right to life, the right to liberty and security of the person. The right to equal protection under the law. The right to the highest standard attainable of physical and mental health. The right to just and favourable conditions of work. Eliminating violence against women and advancing women’s equality includes the right to be free from workplace sexual harassment. Legislation on violence against women should define violence to include sexual harassment. Such legislation should also recognize sexual harassment as a form of discrimination and a violation of women's rights with health and safety consequences. The International Labour Organization (ILO) has also drawn specific attention to domestic workers, who have a right to “enjoy effective protection against all forms of abuse, harassment and violence.” In terms of practice, international law and policy frameworks have an important role to play in encouraging the adoption of an understanding of sexual harassment as a fundamental human right and equality issue, and not just a problem for labour /employment law to solve. Converting these

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concepts into practice involves constant monitoring and adapting to changing circumstances. As a start, six simple steps to keep in mind and practice in any workplace should involve the following: 1. Make sure there is a policy that has been “effectively” communicated to all workers, irrespective of whether they are paid or volunteers. 2. Display details of both informal and formal ways available to a worker to address/complain about workplace sexual harassment. 3. Undertake orientation on workplace sexual harassment for all workers in respective organizations, establishments or institutions. 4. A Complaints Committee which is trained in terms of skill and capacity is critical for building trust. 5. Encourage senior persons/leaders/supervisors or any person who can influence employment related decisions, to become role models. 6. Men and women should be included in building a culture which no longer tolerates workplace sexual harassment. Legally, workplace sexual harassment can no longer be dismissed as some moral transgression. The Vishaka Guidelines raised that bar, when for the first time it recognized “each incident of sexual harassment” as a violation of the fundamental right to equality. That notion has found its way into the Act, which promotes the right of women as citizens to a workplace free of sexual harassment. Complaints Committees at all workplaces are now charged with the role to ensure that the right remains intact, through a fair, informed, user-friendly process of redress Prioritising prevention and establishing a redress mechanism, which comprises of 50 per cent women, a woman chair and an external third party expert, is India’s innovative model in responding to working women’s experience of sexual harassment. Assuming adequate changes follow, in both law and practice to meet global benchmarks, that model can evolve into an exemplary best practice. To get there, workplaces in India today, must rise to the requirement of promoting gender equality.