Over the last few years, I’ve personally filed several Right to Information (RTI) applications with several government offices and save for some initial hiccups at the Copyright Office, the responses that I received from most Central Government Offices have been quite satisfactory or in the case of the DIPP, exemplary. The one sore exception to this rule is the Council for Scientific & Industrial Research (CSIR). Image from here.For some reason, CSIR fancies itself as a private corporation which cannot share ‘client’ information, despite the fact that it is funded by tax-payer’s money. Let me illustrate with some examples.
1. The First Instance:Earlier this year, Sumathi filed a RTI with CSIR asking for a copy of the MoU between the Patent Office & the CSIR for outsourcing of prior art searches. In response to her RTI application, CSIR responded with a refusal to provide a copy of the MoU. Let me quote their exact reply: “The MoU and the related information are client’s confidential documents and we do not know how much information the client wishes to put in public domain and how it would affect their working”. The client in question is the Patent Office! Both parties to the MoU are public bodies run on tax-payers money and both institutions are covered by the RTI Act. Any agreement between two public institutions automatically falls within the domain of the RTI Act. How difficult is it to understand such a fundamental concept? At the end it was the Patent Office which gave us a copy of the MoU.
2. The Second Instance: More recently, I had filed a RTI application asking CSIR for information on how much money they had spent on patenting their inventions and how much money they had earned in revenues from licensing their patents. While CSIR disclosed the amount of money that they had spent on patenting, they refused to disclose their revenues from the licensing of their patents. This denial was made on two grounds:
(i) The information sought was confidential and that disclosure of such information would affect the competitive position of third parties.
(ii) The information sought was not maintained by CSIR HQs and that I was required to apply individually to each of CSIR 39 odd laboratories.
A. Reading between the lines: At this juncture, it is necessary to read between the lines of the two grounds of denial. If CSIR HQ did not have the information they could have just transferred the applications to their subsidiaries BUT instead they first came to a conclusion that all information pertaining to the terms of the licence was confidential, thereby ensuring that none of the 39 laboratories would share any information with me. Then, in contravention to Section 6(3) of the RTI Act (which requires a ‘public authority’ to transfer applications to the relevant public authority which has the necessary information) they cited a DOPT circular which allegedly does not require them to transfer the RTI applications to all their subsidiary labs. The underlying objective therefore was to make me file 39 different RTI applications with each of the labs, then receive 39 different denials of information from all 39 CPIOs because the CSIR HQs had already deemed the information to be confidential. After receiving these 39 denials, I would have to send out another 39 appeals. In short they wanted to make sure that I would not get any information.
What makes this entire reply preposterous is that CSIR has completely failed to apply their minds to the facts at hand. I explain in detail below:
B. Examining the confidentiality argument: Let’s take the ‘confidentiality’ argument first. As you may all know under Sections 68 & 69 of the Patents Act, 1970all patent licensing agreements have to be registered in the ‘Patents Register’ and as per Section 72 of the Patents Act, 1970 the ‘Patents Register’ is open to public inspection. There is simply no question of a patent assignment agreement being confidential in India.
Irrespective of the Patents Act, 1970, the point remains that CSIR is a public funded body and they cannot deny information on the grounds that it would harm the competitive position of third parties. This Section 8(1)(d) exception used by CSIR is for situations where revenue or other administrative departments are asked to disclose information pertaining to third parties; which information was submitted to the public authority in pursuance of the law. This exception cannot be used by public authorities to deny information relating to their own commercial dealings with private parties. At this rate almost every govt. department can deny information relating to their dealings with private parties thereby subverting the entire intention of the RTI Act. If this was the position of law, Subramanian Swamy would have never got any of the 2G scam information under the RTI Act because all the information pertained to the competitive position of third parties.
C. The direction to approach 39 different laboratories: This argument is particularly disturbing and there are several obvious flaws in this argument. I’ll list them below:
(i) Each and every patent granted to CSIR is in the name of CSIR and not individual labs. The logically corollary of this simple fact is that there must be somebody called CSIR which has information on how their patents are licensed. However when one applies to this CSIR body, they claim they don’t have any information and that one should apply to 39 different laboratories despite the fact that these 39 different laboratories are not the owners of the patents. Why in God’s name should I request information from entities who do not own any of these patents? It just doesn’t make any sense to me.
(ii) CSIR is a ‘society’ incorporated under the Societies Registration Act, 1860. The bye-laws of CSIR are available on the NCL website. All the 39 different laboratories, under CSIR, where setup by CSIR with grants and although each one of them may operate autonomously, they are accountable to CSIR. It does not appear as if the 39 different laboratories have any separate legal identities and this is probably the reason that all the patents are filed in the name of CSIR and not individual laboratories. Further, Central Government funding, sanctioned by Parliament, appears to be provided only to CSIR, which then distributes the grants to each of the 39 labs under it. Now as per Article 68 of the Bye-laws, CSIR is required to maintain accounts and audits and present the same to Parliament on a yearly basis. This means that CSIR necessarily has to keep an account of all its 39 laboratories because it is the body disbursing funds to these laboratories. If CSIR was maintaining its accounts, there is no question of not knowing of any patent licensing deals entered into by its subsidiary labs. CSIR would therefore have to know about this information, especially when CSIR was able to tell us how much money was spent in securing patents for all its information. Why then does CSIR ask me to apply to each of the 39 laboratories?
(iii) As per Article 66 of CSIR bye-laws, no patent can be licensed without the permission of the ‘Management Council’ of CSIR. Again thanks to this clause in the Bye-Laws, CSIR HQs would have had to have maintained a copy of any patent licensing deals. Why apply to 39 different labs?
(iv) CSIR has an Intellectual Property Management Division (IPMD) whose mandate, according to its own website is to “To secure and safeguard Intellectual Property generated in CSIR under appropriate legislations in India & Abroad”. How exactly does IPMD do this without knowing what patent is licensed to whom? Does it keep writing to each individual lab on a daily basis, asking them whether they have licensed patents?
3. The lack of a will to be transparent: The truth of the matter is that CSIR simply lacks the political will to be transparent. At least, this is the feeling that I got when CSIR in its reply informed me that a DoPT circular had specifically stated that it was not required to transfer RTI applications to multiple authorities. Little does the CSIR know that the circular in question has been pretty much over-ruled by no less than a ‘full bench’ of the Central Information Commission (CIC) in the case of Ketan Kantilal Modi v. CBEC, which thanks to Indian Kanoon is available over here. In pertinent part the CIC stated the following:
58. In our view, in case CPIO of the public authority can easily and inexpensively transfer an information-request under Section 6(1) to its subordinate offices under Section 6(3), which in themselves may be public authorities, then such CPIO should proceed to do so. As in this case, since all it needed to transfer the request to other public authorities under the CBEC was to use the e-mail or the Internet, with which all these public authorities were connected, it should be possible to effect the transfer under Section 6(3).
59. We, therefore, direct the CPIO, CBEC to transfer appellant’s RTI-application to the subordinate offices/public authorities where the information requested by the appellant is known to be held. This may be done within two weeks of the receipt of this order.
In the past, the Ministry Of Finance in response to one of my RTI applications transferred my application to 33 different authorities, on its own volition without any pestering from my side. Similarly the DIPP, the Patent Office, the Ministry of Environment have all transferred my RTI applications to different authorities without raising an issue of this ridiculous DOPT circular which is not followed any longer in this country. The National Biological Authority once sent me the information first and only later asked me to pay the Rs. 400 towards photocopying charges. The difference between all these bodies and the CSIR, is the simple fact that these other bodies at least had the will to try and implement the RTI Act in its true spirit. The CSIR however seems to have a systemic issue with transparency.
Conclusion: I don’t know whether CSIR lacks a trained RTI Officer or whether they just don’t care but CSIR is desperately in need of some able administrators at the top level.
Prashant:
How about a very simple explanation – their IP licensing revenues are so pathetic that if they put that figure out, you, me and every one else will laugh at the IPMD and its licensing efforts versus the 74 crores odd that they spent on it!!!!
Regards,
Prashant,
Very nice to have exposed CSIR. You have done lot of research with respect to the functioning of CSIR. Why not ask the questions to CSIR whether it functions in the way that you have explained. I have extracted from your own blog some points that you have raised which are as follows:
1. There must be somebody called CSIR which has information on how their patents are licensed
2. As if the 39 different laboratories have any separate legal identities
3. Central Government funding, sanctioned by Parliament, appears to be provided only to CSIR, which then distributes the grants to each of the 39 labs under it
4. As per Article 68 of the Bye-laws, CSIR is required to maintain accounts and audits and present the same to Parliament on a yearly basis
5. If CSIR was maintaining its accounts, there is no question of not knowing of any patent licensing deals entered into by its subsidiary labs
6. No patent can be licensed without the permission of the ‘Management Council’ of CSIR. Again thanks to this clause in the Bye-Laws, CSIR HQs would have had to have maintained a copy of any patent licensing deals
7. How exactly does IPMD do this without knowing what patent is licensed to whom? Does it keep writing to each individual lab on a daily basis, asking them whether they have licensed patents?
I think you should ask the questions from CSIR specifically on the above points. The above would be the questions which an advocate would ask a witness to extract the truth from him. You may rope in many persons in asking these questions in different applications if you like.
You are right when you say that CSIR lacks trained CPIO. When penalties are imposed on CPIO for not providing the information willfully, he/she would get trained like the CPIO in Delhi TM Office. She was earlier of the opinion that advocates are not entitled to the information under RTI Act, as according to her, Advocates are not Citizens of India. But now she has been “trained” and now she does reply to the queries raised, though still she lacks the will to give complete information. I hope you know that she was imposed fine of Rs25000/- (The maximum penalty that can be imposed under the RTI Act) to be deducted from her salary @Rs5000/- per month and even the same was deducted for two months, when she got stay from Delhi High Court on compassionate ground that she is at fag end of her carrier. In another case the CIC has recommended Disciplinary action against her. It is not known whether any disciplinary action has actually been taken. The then CG has left the department and it is not known whether the present CG personally knows about the action be taken as per the directions of CIC. There are many more cases pending against her where show cause has been served upon her by CIC as to why the maximum penalty of Rs25000/- be not imposed on her in each of the cases.
no scientists are not working in csir
Hi Prashant, take a look at S. 69 (4) with respect to point B of your post. Maybe it is of relevance?
@IPseudonym – Good point – if CSIR has asked for confidentiality then yes, they have a case. But my other point regarding the RTI Act still stands.
Regards,
Prashant
RTI officers are very close friends of csir labs director so we cant able to get proper information from them
Dear blogger – I Respectfully disagree that your ‘other point on RTI Act still stands’.
In Subramanium Swamy’s case, the last line of 8(1)(d) applied – i.e., the public authority was satisfied that disclosre of such information was in the larger public interest. In your case, as pointed out in 2(i) of your blog, the information sought by you pertained to private parties with whom CSIR had an agreement – perhaps CSIR is bound by these agreements not to disclose the revenues from licensing. In all fairness, they gave you some info that was asked. If the RTI Act was meant to expose every deal the goverment is involved in, then there would have been no need to have checks in the Act like the last line in 8(1)(d). It looks a bit unfair to accuse them of not being transparent and inefficient simply because you did not get what you asked for.
Dear Anon,
I’m not the first person to accuse CSIR of lack of transparency – they have a long history of controversies over their lack of transparency.
As for your point on Section 8(1)(d) let me refer you to the CIC’s decision in the case of Shri Navroz Mody v. Mumbai Port Authority (Appeal No. CIC/AT/A/2009/000964) where a full bench of the CIC held that Section 22 of the RTI Act would over-ride any confidentiality clause in a government contract. This is only one of the dozens of decisions where the CIC has held that government contracts have to be disclosed under the RTI Act.
Regards,
Prashant
Dear blogger – thank you for that information.
But your argument is not convincing. In my view, you made a sweeping and inaccurate summary of Shri Navroz Mody v. Mumbai Port Authority that ‘Section 22 of the RTI Act would override any confidentiality clause in a government contract’. Where does it state so in that order? Wasn’t the issue in that case as to whether Public-Private Partnership Agreements (PPPs) could be disclosed to third-parties under the RTI Act? It does not anywhere refer to a ‘government contract’!! While all PPPs are government contracts, all government contracts are not PPPs. In the CSIR case at discussion, the inventors who are private parties have certainly not signed a PPP with CSIR, I hope?
Facts of Navorz Mody case also seem very different. For one, it dealt with the non-disclosure of a PPP agreement which had a clause in it permitting the disclosure of the agreement itself (please refer to para 13). Is this the case with CSIR? The opinion of the Comptroller & Auditor General (C&AG) quoted in paragraph 13 of the order and which was considered by the CIC in its reasoning, states as follows:
“Under Section 8(1)(d) of the RTI Act information in the nature of commercial confidential [sic] is exempt information. As concession agreements do not contain commercial interest there should be no objection in furnishing the same under RTI Act. In case, there are certain clauses the disclosure of which may harm the competitive position of the parties to the agreement, the provision of severability in terms of the Section 10 can be applied.”
In arriving at its conclusions, the CIC relied on the opinion of the C&AG and Planning Commission which pointed out that no PPP Agreements should be held confidential and must be made available in the public domain.
Also, please see para 22 of the order:
“The Comptroller & Auditor General of India, in their advice to the Commission during the hearing and through their written- communication, stated that in specific cases, severability provision of Section 10(1) may be used to withhold from disclosure, parts of the PPP Agreement which may attract any of the Section 8(1) provisions or other provision of the Act. There was no scope for us to consider whether Section 10(1) could be invoked for parts of the License Agreement because of the respondents’ and the third-parties’ plea that every single word which formed part of the Agreement was to be held secret on account of their having mutually agreed to.”
… Contd..
[Continued from the last one…]
So the obiter from the order is that it is possible to sever information and categorise them as confidential under Sec. 10(1) – there is no blanket prohibition on relying on confidentiality as a ground for non-disclosure even in ‘government contracts’ or PPPs. This case went against the respondents therein because despite repeated requests by the CIC, they chose not to respond appropriately to the query as to how could a plea of exemption under Section 8(1)(d) be taken without apprising the Commission about the contents of the document about which the privilege of confidentiality was claimed. So the test under 10(1) could not have been applied in that case.
If you see para 17 of the order it states that “Any public document must stand the scrutiny of the RTI Act for a plea of confidentiality to be sustained”. Clearly, the exemption from disclosure based on confidentiality may or may not be sustained depending on the fact situation and the level of public interest that warrants the disclosure. Also, please see para 23 of the order which states that the information sought could not be said to be barred by Section 8(1)(d) of the RTI Act because regardless of the status of the information, there is unmistakable public interest, which warrants and merits its disclosure. Hence, public interest is definitely a big factor – while there is public interest in finding out the money that is spent by CSIR in patenting (it being public money) what is the great public interest in finding out their revenues from the licensing of their patents? Please enlighten.
You seem to argue that anyone who enters into a contract with the government must forgo their right to keep certain aspects of the contract confidential. Could it be so?! There are checks and balances in every legislation and so has the RTI Act.
In my humble understanding, Navroz Mody is a bad precedent to support the point under discussion as it does not state what you claim in your comment. Could you please let me have the other ‘dozens of decisions’ that you are referring to?
The pith and substance of the Navroz judgement of the CIC is exactly what you deny – any party entering into a commercial agreement with the government will lose their right to confidentiality on the agreement save for certain contracts pertaining to national security.
Your interpretation of the decision is wrong – the logic with respect to PPPs applies to all other government contracts. How is a contract between CSIR and a private entity any different from a PPP contract?
There is no requirement for the applicant to prove public interest for the disclosure of such contract. And moreover what is CSIR’s reason to deny such information? The true reason as many of suspect is that CSIR has a pathetic rate of licensing its patents. As far as I’m aware that’s not a reason for denying information.
Prashant
Mr. Reddy – you still have not pointed out where the judgement says that any party entering into a commercial agreement with the government will lose their right to confidentiality on the agreement save for certain contracts pertaining to national security? I see no such references and am not convinced by your pith and substance argument.
Even assuming I am wrong and you are right in our respective interpretations, please explain what the CIC meant by the last line of para 22, namely, “There was no scope for us to consider whether Section 10(1) could be invoked for parts of the License Agreement because of the respondents’ and the third-parties’ plea that every single word which formed part of the Agreement was to be held secret on account of their having mutually agreed to.” The CIC here is referring to the lack of response from the respondents to its request to sever thoses parts of the agreement that are confidential and provide it with the same to enable a decision, which the respondents did not do in this case. Now, why would the CIC do if all agreements with the government are confidential? Isn’t that a clear pointer to the absence of a blanket bar to refusal of information on the basis of confidentiality?
Also, have not commented on my point that the RTI Act also has its checks and balances? I must say, that your brief explanations to my long comment raising several points (sent in two parts due to its size) are least convincing or satisfactory.
Anyways, please be kind enough to pass on the other ‘dozens of decisions’ supporting your argument – perhaps after reading them, I might be on your side? I hope I have not upset you enough for you to refuse me those decisions? 🙂
Also, I forgot to add that your interpretation that ‘there is no requirement for the applicant to prove public interest for the disclosure of such contract’ is contrary to what the CIC says in para 23 of the order. Public interest is definitely a criterion in the Act. But for that there would be a lot of RTI applications filed just for getting information that have no relevance to public interest and could be used by teh applicants to sensationalise and project a public organisation in bad light!
While I am not questioning your credentials, may I ask how you say that CSIR has a pathetic rate of licensing its patents? Could you direct me to any statistics on the same, please?
Anon – Its not my job to convince people who do not want to be convinced. You are obviously a CSIR insider who is not going to be convinced with whatever I say.
Repeating the same old arguments is not going to help your case.
Jurisprudentially there is no difference between a PPP contract and a CSIR patent licensing agreement. Hence the same logic applies to both instances. Let’s see if you can find a single decision of the CIC to support your interpretation.
As for CSIR’s pathetic rate of licensing, I received that information from our readers in the comments section. They seem to have inside knowledge of CSIR and since I have no evidence to prove them wrong, I’m going to accept their word for it. Is this conclusion bothering you?
Prashant
Dear Mr. Reddy,
Would you believe it if say that I am NOT a “CSIR insider”?? Nor have I anything to do with CSIR. Cross my heart….
You say that I am repeating the same old argument – If you see my comments above, I am only repeatedly asking you to clarify certain specific queries by quoting from the order of the CIC? Beyond saying ‘pith and substance’ you have not addressed a single query of mine and accuse me of ‘repeating the same argument’!! On the contrary, I am repeating the same questions since you have not answered the same! And unless you answer, how can I even begin to get convinced? Don’t you think you are repeating the same answer by not providing any clarifications.
For instance, I have asked a query about the CIC’s comment on Sec. 10(1) of the Act and another two queries regarding paras 17 and 23 of the order – you have just brushed them aside and have not cared to respond. You accuse CSIR of not being transparent, but you yourself seem to hide behind something and not answer the questions I have raised in my comments above.
Forget about not answering the queries, you have not even obliged me by giving me the names of the ‘dozens of decisions’ where Navroz Mody has been upheld and your point has been reiterated. From your rather harsh reaction, I am beginning to suspect there are no such ‘dozens of decisions’ and you were just trying to shut me up by throwing that at me! And now you are challenging me to provide the decisions that support my interpretation – as you can see from my comment, I am still open to adopt your interpretation, provided you give these decisions to me and answer my queries like a mature blogger. Isn’t one of the purposes of your blog to share and educate people?
And, as for your last comment – may I say that I am a bit disappointed and shocked by your reaction. Mr. Basheer who started this blog is a respectable academic and a knowledgeable and ethical person – and one of his team members is relying on mere hearsay and personal surmises to level an allegation against a public body. I presume you are a law graduate and I need not remind you that hearsay is not good evidence. If you write something of this sort, please rely on statistical information – someone could sue you for defamation. By some chance if you realize that all those ardent readers and fans of yours are just as carried away by emotions as you appear to be now, your credibility will go down the drains.
Lastly, I have no axe to grind against you. I am as much a student of law as any lawyer would be all his life. This subject interests me so I read your blogs. So my purpose is to learn my friend. Hope you would oblige…..
Anon: Excellent job at evading all the queries that I raised in my previous post. You still haven’t answered the fundamental question of there is jurisprudential difference between a PPP contract and a CSIR patent licensing agreement?
Why don’t you find me a single CIC decision which states that contracts like the CSIR patent licensing agreeement can be witheld by CSIR? You can’t find any because there is no decision like that.
Also, you can save your condescending lectures for somebody else. On principle, I don’t take anonymous cowards seriously.
Regards,
Prashant
CSIR is one of the most corrupt and opaque govt. bodies in the country. Believe me, my experience in CSIR tells me that it is sheer waste of public money in the name of research. CSIR scientists are thugs. The reason being that they are not recruited properly but favouritism and nepotism plays a BIG role here.
Dear Anon:
Since you left a comment on this aspect on my dilution post as well, I went back and took a look at the post and the to and fro between you and Prashant on this aspect.
I don’t think Prashant mischaracterised the law when he opined in one of his comments that:
“As for your point on Section 8(1)(d) let me refer you to the CIC’s decision in the case of Shri Navroz Mody v. Mumbai Port Authority (Appeal No. CIC/AT/A/2009/000964) where a full bench of the CIC held that Section 22 of the RTI Act would over-ride any confidentiality clause in a government contract.”
This is correct—as the CIC clearly mentions that it is not enough for the government to simply trump up a confidentiality clause to avoid the RTI burden…it must independently establish as to why the provisions that it seeks to hide amount to “confidential information” etc. To this extent, you are right that there is no categorical exclusion of all government contracts from confidentiality—rather the test is whether or not the specific clause or clauses can be said to embody confidential information.
Also, given that PPP’s (which have a private element) can be disclosed under this ruling, the same logic should apply with more force to government contracts no? In fact, the CIC itself goes on to state in Mody that:
“If PPPs were not the mode of project execution, the entire operation would then be conducted by the Government and would have been subject to the provisions of the RTI Act, and all information thereof would be disclosable. It would be vain to argue that functions which were earlier transparent when performed by Government exclusively, should become opaque now that these are
to be performed through PPP. This will amount to reversal of transparency and would be antithetical to public interest.”
I hope we can end the discussion on this point of law (at least) and move on to other issues stemming from this case (if any)?
Lastly, I would argue that since tax payer money has been used in procuring patents and conducting research, details of the proceeds of the research (licensing revenues) are very much in “public interest”. Wouldn’t you?
Mr. Basheer – thank you for that kind clarification.
All I was saying was that there was no categorical or blanket exclusion of all government contracts from confidentiality as argued by your team member. Though I would like to end the discussion, the real reason why I was compelled to leave a comment on your blog was to find out which are those ‘dozens of cases’ that followed Navroz Mody case as argued by Mr. Reddy? I am currently dealing with a case which involves this issue and I would like to just read up.
I agree 100% with Mr. Prashant. CSIR and DSIR have a doubtful style of working. There is dynastic rule and nepotism in CSIR. I want to substantiate my claim with proof. From 2010-2013 Arun Firodia, Chairman Kinetic Group Pune) has been appointed as a member of working group of CSIR including DSIR. And prior to this his daughter Sulajja Firodia Motwani(Jt. MD of Kinetic) was a member of Governing body of CSIR from 2007-2010. Please also note that this father-daughter duo is also declared willful defaulters by several banks and are facing criminal action by banks including charges under IPC 420. All this information is in Public Domain(goo.gl/t97pm)I alongwith several persons have filed RTI to Planning Commission (Science & Technology). Jai Kumar
Anonymous has sent in this comment:
CSIR has already spent more than 100 crores on buying super computers in the last 6-7 years. I have seen a tender to buy a super computer for CSIR one and half year back. Again one more super computer to buy?? For What? Huge foreign exchange in importing such machines. Is CSIR does any assessment before buying the computers or some vested interest in buying those things. CVC/CBI has to initiate detailed investigation all the super computers CSIR has bought till now. How much foreign exchange spent without open tender? Our country is struggling in foreign exchange front, on the other hand CSIR has surplus money in spending on super computers, How much scientific output CSIR have generated by using the already purchased super computers till now. I think there is a huge corruption in CSIR from it top to bottom. CSIR is not a transparent system, lots of hidden things. Congress/UPA has intruded corruption in the research institutions. DG CSIR is also part of these corrupt practices in CSIR