Re: [rti_india] Re: Another example of why Habibullah is a puppet for special interests.

Dear Karira

Your arguments contradict your own posts on rtiindia.org.
http://www.rtiindia.org/forum/7392-public-records-act-1993-rules-1997-a.html

The typical rti activist is like a brainwashed religious fanatic. He
only believes that ONLY the Gita, Koran, Bible, Talmud, (RTI Act) etc.
which he believes in is infallible and that all other works (in this
case laws) are useless.

As far as we (Indians) are concerned the Constitution is our primary
point of reference. All laws either prexist or derive from the
Constitution. The Constitution has accorded equal status to all laws
in force within their sphere of operation. The Constitution speciifes
that later laws take precedence over older laws in force. All laws
are automatically presumed to be perfectly drafted and harmonious with
each other. Its only foolish little RTI Activists who insist that
evergreen Baba Adam laws are obsolete.

FYI, the IT Act also contains an over-riding clause "81. Act to have
overriding effect. The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith contained in any other
law for the time being in force."

Nothing is to be read into such routine "comfort" clauses in the
enactments. Any good advocate will advise his client accordingly, the
bad ones will not do so and only take your money and tell you that
your case is unsinkable.

Babus did not draft the Act or any other law. These are sovereign acts
of Parliament enacted by the people's representatives.:-)

The only important requirement for second part of 4(1)(a) is
"appropriate to be computerised and connected through a network ...".
As you (and I) have said, only the "records" are to be considered for
computerisation. Parliament has already defined in law that "record"
is only that file closed after action on all issues considered thereon
are taken <-- Do you remember this ???

How is section 9 of IT Act "inconsistent" with RTI Act ?. Does RTI Act
say anywhere that any person can insist or compel the Govt to accept
or create or preserve or accept payment in electronic form etc. only.
Section 7(9) does not help your case, as I have explained in a
previous post in this thread.

The RTI Act is not the law which governs maintenance, preservation,
creation, transmission, access to, security, etc etc of electronic
records. The IT Act is that law. In its own domain the IT Act rules.
The Public Records Act does not require computerisation of records or
afford electronic records legal status. It is only the IT Act which
does so especially as one of its objects is "to promote efficient
delivery of Government services by means of reliable electronic
records." It is trite to say that RTI processes are included within
delivery of Govt services.

Your continued insistence that "shall" means compulsory is incorrect.
I can cite numerous SC judgments where SC has held "shall" to be
optional. <-- Ask any good lawyer if you don't trust me. In any case,
the word "shall" is GENERALLY to the whole of 4(1) and not confined to
4(1)(a) or any of its parts.

4(1)((b) and (c) are obliged to be "published". 4(1)(a) and 4(1)(d) do
not require any information disclosure to the PUBLIC. 4(1)(b) and
4(1)(c) comprehensively cover all suo-moto information disclosures to
the PUBLIC.

4(2) clarifies this (and substantially dilutes 4(1)) by saying that
the P/A is only to "constantly ENDEAVOUR" to regularly provide
information widely to the PUBLIC. through various means of
COMMUNICATION.

4(3) Further clarifies this by saying that every information to be
widely disseminated (see the preceding clause) must be in a form and
manner easily accessible to the public. You cannot read 4(3) in
isolation, it has to flow from (and be consistent with) 4(1) and 4(2).

The wide dissemination of 4(3) is to the PUBLIC not to the babus.
Unlike you I am clear that wide dissemination means to the PUBLIC by
various means of communication including internet.This is because such
information (4.1.b and 4.1.c) is for public domain and can be safely
disclosed to foreigners also. But for the "connected through network
of computers WITHIN INDIA" of 4(1)(a) this necessarily (IT Act) refers
to secure networks of the Govt to facilitate access of BABUS.to "such
records". I take strong exception to your twisting my words to imply
that I support babus.

Sarbajit

On 6/28/10, C K Jam <rtiwanted@yahoo.com> wrote:
> Replying pointwise:
>
> Items 1 and 2. There seems to be no dispute.
>
> Later part of Item 2:
> RTI Act does override it by virtue of Sec 22. There is something
> inconsistent here between the IT Act and the RTI Act and therefore Sec 22
> makes the RTI Act prevail.
> If what you say is correct (about later enactment) then this is the easiest
> way for the Government of the day to negate effects of the RTI Act 2005 - by
> way of other enactments, which chip away at the RTI Act piece by piece. If
> the IT Act was drafted/enacted later than the RTI Act, the babus doing so,
> should have borne in mind the provisions of the RTI Act while drafting.
>
> 3. Again you are not reading Sec 4(1)(a) correctly. Reproducing it below:
>
> "a.maintain all its
> records duly catalogued and indexed in a manner and the form which
> facilitates the right to information under this Act and ensure that all
> records that are appropriate to be computerised are, within a reasonable
> time and subject to availability of resources, computerised and
> connected through a network all over the country on different systems so
> that access to such records is facilitated;"
>
> There are two parts to this sub section:
> i) The indexing and cataloguing part
> ii) and the "Computerisation" part
> As I said earlier, the second part (computerisation) is qualified with:
>>> - those records which are appropriate to be computerised
>
>>> - within a reasonable time
>
>>> - subject to availability of resources
> Since both i) and ii) are preceded by the word "shall", even ii) is
> obligatory...of course subject to those three qualifications listed above.
>
> One more point...it is not "access to information" but "access to records" -
> because "information (Sec 2(f)) is a much wider term than "record" (Sec
> 2(i))
>
> Item 4. As an applicant I care two hoots whether I have security clearance
> or not or who has it (it is for the babus to debate - you know every babu
> hangs on to the term "relative seniority" till the breathes his last). I am
> only bothered about the information I am seeking. For that I will apply to
> the PIO of the concerned Public Authority. Either he provides it to me
> within 30 days or denies it under Sec 8 or
> 9. Damn him, damn his network and damn his security clearance. Why should I,
> as an applicant, bother ? By not computerising records and putting them up
> on a accessible network (accessible to those with security clearance as you
> contend), the PA's themselves are making the job of PIO's difficult. So be
> it. Their funeral.
> (Also read my reply to Item 5 below)
>
>
> 5. Sec 4(3) states:
> 3.For the purposes of
> sub-section (1), every information shall be disseminated widely and in
> such form and manner which is easily accessible to the public.
>
> Sub-section (1) includes both parts......4(1)(a) and 4(1)(b).
> Therefore 4(3) is applicable to both 4(1)(a) and 4(1)(b).
>
> Also please read the definition of "information" in Sec 2(f):
> f)"information" means
> any material in any form, including records, documents, memos, e-mails,
> opinions, advices, press releases, circulars, orders, logbooks,
> contracts, reports, papers, samples, models, data material held in any
> electronic form and information relating to any private body which can
> be accessed by a public authority under any other law for the time being
> in force;
>
> Therefore, "information" INCLUDES "records"
>
> So, when 4(3) refers to the term "information" it also includes "records".
> And, the latter part of Sec 4(1)(a) already clarifies about computerisation
> of all records and putting them up on a network for facilitating easy
> accessibility.
> Therefore your argument about security clearances/seniority, etc. is a
> typical babu way of obfuscating the whole Sec 4.
> If Sec 4(3), talks about "wide dissemination", by no means, it means to a
> select few who are senior and have a security clearance, etc...as argued by
> you in your Item 4.
>
> Item 6: Skipping, since no Item 6 in your reply.
>
> Item 7: Please see my reply to your Item 5 above.
>
>
> RTIwanted
>
> --- On Sun, 6/27/10, sarbajit roy <sroy.mb@gmail.com> wrote:
>
> From: sarbajit roy <sroy.mb@gmail.com>
> Subject: Re: [rti_india] Re: Another example of why Habibullah is a puppet
> for special interests.
> To: rti_india@yahoogroups.com
> Date: Sunday, June 27, 2010, 7:51 PM
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
> Dear Karira
>
>
>
> Section 4(1)(a) is a purely facilitative clause.(ie no extra right to
>
> info is created / conferred by it) and means precisely
>
> "Every public authority shall maintain all its records duly catalogued
>
> and indexed in a manner and the form which facilitates the right to
>
> information under this Act ", AND
>
> "Every public authority shall ensure that all records that are
>
> appropriate to be computerised are computerised and connected through
>
> a network all over the country on different systems so that access to
>
> such records is facilitated"
>
>
>
> NB:
>
> 1) because "within a reasonable time and subject to availability of
>
> resources" is within commas it has no bearing on our core dispute (and
>
> at best are mitigating factors for non-compliance). Section 1(3) is
>
> important here, because it sets the time frame.
>
>
>
> 2) Because of the terms "ALL" and "AND" the P/A is first required to
>
> "maintain" and index/catalogue ALL its records to facilitate the
>
> "right to information" (this also includes maintaining information
>
> already in electronic form) . Since section 3 has already clariified
>
> that "subject to the provisions of this Act, all citizens shall have
>
> the right to information", the first part of 4(1)(a) concerns the
>
> citizens right to information (which is defined in 2(j) to mean "right
>
> to information accessible under this Act which is held by or under the
>
> control of any public authority"). So by this part of the clause the
>
> obligation is cast upon P/As to maintain, index and catalogue ALL
>
> records held by or under their control so as to aid (facilitate) the
>
> citizen to effectively exercise his right to information.
>
>
>
> IMPORTANT: This part of 4(1)(a) does not oblige the P/A to computerise
>
> even a single record of theirs to aid a citizen ether to obtain or be
>
> provided any information in electronic form. Also,
>
> Section 9 of IT Act 2008 says "Nothing contained in sections 6, 7 and
>
> 8 shall confer a right upon any person to insist that any Ministry or
>
> Department of the Central Government or the State Government or any
>
> authority or body established by or under any law or controlled or
>
> funded by the Central or State Government should accept, issue,
>
> create, retain and preserve any document in the form of electronic
>
> records or effect any monetary transaction in the electronic form."
>
> Since this is a later Act, RTI Act does not over-ride it.
>
>
>
> 3) Once a P/A maintains (ie. preserves / weeds out), indexes and
>
> catalogues its records, the second part of 4(1)(a) requires it to
>
> computerise "such" (ie. only those) records which are APPROPRIATE to
>
> aid (facilitate) ACCESS to information.over a network of different
>
> computers within India Although the term access is not defined in RTI
>
> act, it is defined in the Information Technology Act.
>
>
>
> 4) Since the network of computers is mandated to only be WITHIN INDIA,
>
> the usage of the internet is ruled out for "such: records". The
>
> network referred to is obviously (considering present state of the
>
> art) secure Govt networks (LANS / WANS / VSATs etc.) to bring about
>
> transparency and accountability in the P/A.and facilitate PIOs to
>
> ACCESS (as defined in IT act) appropriate comnputerised records of the
>
> P/A to service their obligations u/s 6, 7, 8 etc . The true
>
> significance of this clause means that the PIO must be a officer with
>
> sufficient seniority and high level of information access clearance.
>
> This aspect is clarified by 4(4) which says "the information should be
>
> easily ACCESSIBLE, TO THE EXTENT POSSIBLE in electronic format with
>
> the Central Public Information Officer or State Public Information
>
> Officer, either at cost of medium (ie floppy / CD/ tapes / cassettes /
>
> pen drive etc) or prescribed "print cost" (like Rs. 2 per A4 page) or
>
> else FREE". Previously 2(j)(iv) has defined the forms the citizen can
>
> OBTAIN electronic information in.
>
>
>
> 5) Furthermore, since section 4(3) says that EVERY information of
>
> 4(1) is to be widely disseminated and easily accessible to the
>
> public.does section 4(1)(a) require that EVERY record of the P/A be
>
> computerised so as to be widely disseminated and easily accessible to
>
> the public ? The answer of course is NO !! Only sections 4(1)(b), and
>
> (c) [not (a) or (d)] specify what the P/A is obliged to disseminate
>
> (publish) under 4(1).
>
>
>
> 7) Section 8(1) for example says "NOTWITHSTANDING ...blah blah).
>
> Section 9 allows a PIO to reject a request to access information.
>
> Section 10 allows a PIO to selectively supply information. Section 3
>
> allows a PIO to deny information to non-Indians, The net result is
>
> that Section 4 is about "accessing" information (ie. the informal way)
>
> - the rest of the RTI Act is about "obtaining" information.(ie. by a
>
> formal request / procedure at prescribed fess ) via the PIOs. So in
>
> short 4(1)(a) is only about computerising those appropriate ("such")
>
> records required to facilitate every PIOs access to information
>
> maintained across the P/A and which is entirely (and necessarily)
>
> left up to the P/A's parent law(s) or its discretion
>
>
>
> Sarbajit
>
>
>
> On 6/27/10, C K Jam <rtiwanted@yahoo.com> wrote:
>
>> Dear Sarbajit,
>
>>
>
>> It is you who has the blinkers on (and ear plugs too)
>
>> As usual, your ears hear only what you say and your eyes read only what
>> you
>
>> write !
>
>>
>
>> "1) Section 4(1)(a) does not make it obligatory for P/As to computerise
>
>> the records. It enables them to do so if they are so inclined.
>
>>
>
>>>Do not agree to that interpretation.
>
>>
>
>>> Sec 4(1)(a) is preceded by a sentence containing the word "shall".
>
>>
>
>>>
>
>>
>
>>> Therefore every public authority has to computerise :
>
>>
>
>>>
>
>>
>
>>> - those records which are appropriate to be computerised
>
>>
>
>>> - within a reasonable time
>
>>
>
>>> - subject to availability of resources
>
>>
>
>> The "shall" is for both parts of Sec 4(1)(a). However, the part about
>
>> "computerise" is qualified with the three factors mentioned above. Where
>> is
>
>> the "inclination" ?
>
>>
>
>> =========
>
>> The Delhi High Court's order has thrown out all those arguments of CIC
>
>> being able to award "compensation" in its decision. You have also not
>
>> read section 19(8) and 18(1) carefully.
>
>>
>
>> This is what I said...and you have not read it:
>
>>
>
>>> Also remember, as per CIC (and quoted in a DoPT circular), a
>
>> appellant/complainant can seek compensation from the PA, under Sec
>
>> 19(8), if the PA has not adhered to the mandate in Sec 4(1)(a).
>
>>
>
>>> Anyone wants to try seeking compensation from CIC itself, on this
>
>> count ?
>
>>
>
>> Do you mean to say that DoPT and CIC are also silly RTI activists ?
>
>>
>
>> ==========
>
>>
>
>> Regarding IC ANT, he still thinks he is sitting on that high back chair
>
>> covered with the ubiquitous white terry towel. Please leave him alone to
>
>> fight his lonely battle with fellow ICs and CIC.
>
>>
>
>> RTIwanted
>
>>
>
>>
>
>>
>
>> --- On Sun, 6/27/10, sarbajitr <sroy1947@yahoo.com> wrote:
>
>>
>
>> From: sarbajitr <sroy1947@yahoo.com>
>
>> Subject: [rti_india] Re: Another example of why Habibullah is a puppet for
>
>> special interests.
>
>> To: rti_india@yahoogroups.com
>
>> Date: Sunday, June 27, 2010, 1:13 PM
>
>>
>
>>
>
>>
>
>>
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>>
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>>
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>>
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>>
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>>
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>>
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>>
>
>> Dear Karira
>
>>
>
>>
>
>>
>
>> I don't know if they still have tongas (victorias) in Secunderabad. The
>> way
>
>> the tanga-wallah controls thehorse and gets him to serve his purpose is to
>
>> put "blinkers" over his eyes and only focus the eyes on
>
>>
>
>> where he wants the horse to go.
>
>>
>
>>
>
>>
>
>> Similarly all the RTI activists are only looking at section 4(1)(a) in
>
>> isolation and trying to teach me the Act.
>
>>
>
>>
>
>>
>
>> The Delhi High Court's order has thrown out all those arguments of CIC
>> being
>
>> able to award "compensation" in its decision. You have also not read
>> section
>
>> 19(8) and 18(1) carefully.
>
>>
>
>>
>
>>
>
>> I have only made 2 small points (repeated below). You (too) may tell me
>
>> precisely what is wrong with these statements. I am not influenced by
>
>> decisions of IC(T), but concede that he can read the RTI Act almost as
>> well
>
>> as I can. The first part of 4(1)(a) IS obligatory in itself, the 2nd part
>> is
>
>> not but left to the discretion of the P/A.
>
>>
>
>>
>
>>
>
>> "1) Section 4(1)(a) does not make it obligatory for P/As to computerise
>> the
>
>> records. It enables them to do so if they are so inclined.
>
>>
>
>>
>
>>
>
>> 2) You can "request" information in form of diskettes only when it is
>
>>
>
>> stored on a computer or other device - not because the information is
>
>>
>
>> voluminous and would pinch your pocket."
>
>>
>
>>
>
>>
>
>> For eg. (and this is a very trivial example to slightly adjust your depth
>> of
>
>> field), I don't know if you have noticed, whereas the first part of
>> 4(1)(a)
>
>> requires every P/a to maintain ALL its records duly indexed and catalogued
>
>> to facilitate THE RIGHT TO INFORMATION, the second part only speaks of
>
>> facilitating ACCESS to SUCH (ie. truncated subset) records and is also
>
>> precedent upon the first part being completed.
>
>>
>
>>
>
>>
>
>> Sarbajit
>
>>
>
>>
>
>>
>
>> --- In rti_india@yahoogroups.com, C K Jam <rtiwanted@...> wrote:
>
>>
>
>>>
>
>>
>
>>> Mr Sarbajit,
>
>>
>
>>>
>
>>
>
>>> Do not agree to that interpretation.
>
>>
>
>>> Sec 4(1)(a) is preceded by a sentence containing the word "shall".
>
>>
>
>>>
>
>>
>
>>> Therefore every public authority has to computerise :
>
>>
>
>>>
>
>>
>
>>> - those records which are appropriate to be computerised
>
>>
>
>>> - within a reasonable time
>
>>
>
>>> - subject to availability of resources
>
>>
>
>>>
>
>>
>
>>> Where did you get the "inclination" part from ?
>
>>
>
>>>
>
>>
>
>>> It seems you are being influenced by IC ANT's famous (and absurd) order
>
>>> which said that the entire Sec 4 is not obligatory !
>
>>
>
>>>
>
>>
>
>>> By the way, as far as funds (one of the "resources") are concerned, DoPT
>
>>> had issued a Memo way back in 2007, based on the recommendations of the
>
>>> second ARC, for specific provision in the budget for such a purpose.
>
>>
>
>>> Wonder whatever happened to that ?
>
>>
>
>>>
>
>>
>
>>> Also remember, as per CIC (and quoted in a DoPT circular), a
>
>>> appellant/complainant can seek compensation from the PA, under Sec 19(8),
>
>>> if the PA has not adhered to the mandate in Sec 4(1)(a).
>
>>
>
>>> Anyone wants to try seeking compensation from CIC itself, on this count ?
>
>>
>
>>>
>
>>
>
>>> RTIwanted
>
>>
>
>>>
>
>>
>
>>>
>
>>
>
>>> --- On Sun, 6/27/10, sarbajitr <sroy1947@...> wrote:
>
>>
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>>>
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>>> From: sarbajitr <sroy1947@...>
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>>> Dear Bhaskar
>
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>>>
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>>>
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>>>
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>>
>
>>> 1) Section 4(1)(a) does not make it obligatory for P/As to computerise
>>> the
>
>>> records. It enables them to do so if they are so inclined.
>
>>
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