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President’s office doesn't know why was land acquisition Ordinance promulgated

By Venkatesh Nayak*
Two interesting developments have occurred during the last few days in the “Quest for Transparency” in India. Those who frequent the website of the Prime Minister will recognise the source of that phrase. The first revelation pertains to the Ordinance which was promulgated by the President of India to amend the law on land acquisition and transparent rehabilitation and resettlement. The second relates to the Delhi High Court’s welcome decision declared yesterday bringing back the Attorney General under the Right to Information Act, 2005 (RTI Act).

No basis for urgency to promulgate the land acquisition law amendment Ordinance?

Anticipating the current controversy over the land acquisition amendment Bill passed by the Lok Sabha on March 10, 2015, brought in to replace the earlier Ordinance, I had filed a right to information (RTI) application with the President’s Secretariat on January 5, 2015 within less than a week of the Ordinance being gazetted asking the following questions:
(1) A legible photocopy of all materials on the basis of which the President of India was satisfied that circumstances existed for him to take immediate action by promulgating the said Ordinance; and
(2) A legible photocopy of all file-notings available on record in relation to the materials referred to at para #1 above.
On January 13, the President’s Secretariat transferred my RTI application to the Department of Land Resources in the Ministry for Rural Development. After waiting for more than 40 days for a reply I filed a first appeal in February. Now the central public information officer (CPIO) of the Department of Land Resources has sent me a reply saying they have no information on the reasons for the Ordinance, nor the circumstances which necessitated immediate action in the form of promulgating the Ordinance.
So neither the President’s Secretariat nor the Ministry of Rural Development has information about the urgency that necessitated the promulgation of the Ordinance. If this is indeed true, then the query that arises is whether the President was misled into signing the Ordinance on the advice that immediate action was necessary.
In the matter of Dr D C Wadhwa & Others vs State of Bihar & Others (AIR 1987 SC579), the Supreme Court of India described the power of the President and the Governors to promulgate Ordinances under Article 123 and 213 of the Constitution, respectively, as only emergency powers to be used to meet an emergent situation when Parliament or a State Legislature was not in session.
So when a draft Ordinance is presented to the President for signature, he/she has to satisfy for himself/herself that circumstances exist for such a emergency measure. These circumstances are described in the Cabinet Note attached to the draft Ordinance. While the actual advice given to the President by the Cabinet may be withheld under Article 74(2) of the Constitution, the materials which form the basis of such advice must be disclosed to the public.
This is what the Supreme Court said in SP Gupta vs President of India (AIR 1982 SC 149) while reiterating the fact that people’s right to know was a deemed fundamental right under Article 19(1)(a) of the Constitution. Further, there is a Central Information Commission (CIC) decision from 2012, which states that soon after a Bill is tabled in Parliament the Cabinet Note must be uploaded on the departmental website within 7 days. While this direction was issued to the Department of Atomic Energy in that case the principle will apply to all departments if only if they practice transparency.
Further, there has been no public consultation on the draft Land Acquisition Amendment Bill before it was approved by the Union Cabinet for tabling in Parliament. There is a pre-legislative consultation policy from January 2014 which states that all draft legislations and amendments to existing laws must be placed in the public domain for people’s comments and suggestions and these views must be annexed to the draft Cabinet Note sent to the Union Cabinet for approval.
None of these procedures have been followed while amending the law either through the Ordinance or now through the Bill that seeks to replace the Ordinance. Land acquisition issues affect millions of people across the country – not just landowners but all those whose livelihoods depend on land directly or indirectly. Yet, none of this has been discussed on the government’s website — mygov.in – especially launched for the purpose of consultation. So the “Quest for Transparency” remains merely a quest.

Attorney General declared a public authority under the RTI Act

In a welcome decision, the Delhi High Court has declared the Attorney General of India (AGI), a public authority under the RTI Act with a direct obligation to receive and decide requests for information from people (4th attachment). This judgment overturns a 2012 decision of the Full Bench of the Central Information Commission. The rationale given by the Court is summarised on slides 20-21 of the attached PPT (5th attachment). This PPT is an updated version of the presentation on select Court judgements on RTI that I had circulated a couple of months ago.
The Commonwealth Human Rights Initiative (CHRI) notes with satisfaction that the issues raised in its analysis of the CIC’s decision, circulated within a few days of its announcement, have found resonance in the Court’s reasoning as to why the AGI should be a public authority under the RTI Act (6th attachment). CHRI congratulates the Petitioners who persisted in their demand to make the AGI’s office transparent.
The reasoning of the Delhi High Court is welcome for another reason. The Governor’s office in Goa has claimed that the Governor is not a public authority under the RTI Act before the Supreme Court of India. CHRI has sought to intervene in this case. However, there has been no effective hearing in this case since December 2012. Incidentally, the RTI applicant in this case was the Leader of the Opposition in the Goa Legislative Assembly and is currently the Defence Minister of India.
Another Division Bench of the CIC declared in 2009 that elected representatives of the people such as Parliamentarians, State Legislators and Municipal Councillors are not public authorities under the RTI Act (7th attachment). The reasoning applied by the Delhi High Court regarding the coverage of the AGI under the RTI Act could be used to overturn that decision as well.
CHRI had submitted its views on that case when the CIC called for public comments. Strangely, CHRI’s submission is not even mentioned in that decision. Perhaps the CIC’s Registry forgot to place our submission before the Commissioners.

*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, Delhi

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