Right to Information: Tool for empowerment or Catalyst of Handicapping

Published: Sunday, Oct 20,2013, 09:30 IST
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Right to Information, Catalyst of Handicapping, APJ Abdul Kalam,

It is eight years since the Right to Information Act came into being for the citizens. I repeat, for the citizens, because it came into force on June 15, 2005 but could not be used by citizens because the first 120 days were given exclusively to the public authorities to prepare themselves and their documents for responding to citizens.

But what is the state of the only pro-democracy, citizen-friendly law at the end of eight years? That even the Kerala State Information Commission has not published details required to be proactively disclosed as per Sec 4(1)9B) of the Act speaks volumes for the subversion of the law by the very public servants tasked, empowered and paid to enforce it! The one law that could have ushered in real democracy without bloodshed lies bloodied on its deathbed, raising the question: has the government declared war on its own people? Read on…

Dr APJ Abdul Kalam, undoubtedly one of the best Head of State ever, a Peoples’ President, had reportedly sought to exclude his office from the purview of the transparency law before signing the document. Anyhow, later events regarding disclosure of information about the imposition of Emergency revealed that the law can be misinterpreted to deny information.

The way Sec 8(2) and 8(3) of the RTI Act were made to look silly would be of interest for all citizens concerned with democratic values and rights. These provisions are reproduced for ready reference:

(2) Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.

(3) Subject to the provisions of clauses (a), (c) and (i) of sub-section (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under section 6 shall be provided to any person making a request under that section. (It may be stated that clauses (a), (c) and (i) of sub section (1) do not apply in this case)

Yet, KG Balakrishnan, as Chief Justice of India, did not feel constrained like the President of India. In what is now popularly known as the Judges’ Assets case, he declared himself out of purview of the RTI Act! This was held wrong by the ultimate authority on the RTI Act – the Central Information Commission, as well as by two benches of the Delhi High Court! The matter is now pending with the apex court itself.

Interestingly, even when the CIC held the CJI to be wrong, it did not go the whole way to impose the mandatory penalty (on KG Balakrishnan) under Sec 20 of the RTI Act. So is the law truly democratic? In fact, in the majority of cases, the information commissioners fail in their duty to impose the mandatory penalty for delay, causing colossal loss to the State and rendering the law impotent.

This failure has another dimension – it makes information commissioners the only people liable to misuse the law and breed corruption on that count. For example, if an IC fails to impose the mandatory penalty by accepting the penalty amount as bribe from a delinquent public information officer, that public servant is saved a disgraceful punishment and a bad entry in his service records while the unscrupulous IC becomes richer. In fact, in every case that an IC has directed a PIO to provide information and refrained from imposing mandatory penalty for non-compliance can reasonably be presumed to be a case of corruption.

For those who can afford to go to court, the IC can be prosecuted under Sec 219 of the IPC which reads as follows:

Public servant in judicial proceeding corruptly making report, etc contrary to law -

whoever being a public servant, corruptly or maliciously makes or pronounces in any stage of a judicial proceeding, any report, or order verdict, or decision which he knows to be contrary to law shall be punished with imprisonment of either description for a term which may extent to seven years or with fine or with both.

But the Judges’ Assets case had a positive fallout too. Even when the final word on the legality of the then CJI’s decision is pending with the apex court, almost all judges have voluntarily disclosed their assets on the web sites of the respective courts. A small victory for RTI.

The matter does not end there. On September 13, 2012 in the famous Namit Sharma case, the apex court came down heavily on the executive for lack of transparency in the appointment of information commissioners. This is something that has been vociferously demanded by RTI activists throughout the country. But the court went overboard and directed that all appeals must be heard by legally qualified information commissioners and demanded that the CICs should be either retired high court or apex court judges!

Mercifully, the court stayed this part of the order on April 16, 2013. But the question arises – what did the information commissioners throughout the country, more than 90 percent former bureaucrats without any legal qualifications, do between September 13, 2012 to April 16, 2013? Obviously, they were on an extended paid holiday.

A visit to www.keralasic.gov.in, the official website of the Kerala State Information Commission, shows that on October 7, 2013, for the year 2013, the five ICs collectively disposed off only 91 appeals, which is just about what as many ICs of the Central information Commission dispose off in one day! Worse, more than 50 percent of the appeals had been filed in 2010 and 2011. Thus, the delay in disposal is almost three years.

With the apex court having expressed reservations about non-law qualified people sitting in judgment in (quasi) judicial proceedings, ordinary citizens must investigate the competence of our qualified judges themselves. One need not repeat the Judges’ Assets case and how the then CJI’s decision was held wrong not only by the non-law qualified information commissioners of the Central Information Commission but also by two benches of the Delhi High Court!

Take the simple case of the date of birth of former Chief of Army Staff, General VK Singh. Media reports say the General has been hauled up for contempt of court for expressing surprise at how the courts had followed different criteria in confirming the age/date of birth in his case vis-à-vis the juvenile accused in the notorious Delhi rape case.

Then, there is the order of the Kerala State Consumer Disputes Redressal Commission, headed by a retired high court judge, wherein an appeal against a District Forum order had been dismissed for want of an application to condone the delay in filing the appeal. The fraud is that the same commission had sent a notice for hearing in the very same application for condoning the delay, called interim appeal in judicial parlance!

There is also the case of a law-qualified president of the District Consumer Disputes Redressal Forum who noted in the docket of a consumer complaint that the hearing is adjourned due to absence of staff, but when the attendance registers were checked it was seen that all staff had been marked present.

(For more details, see ‘Chief Minister’s Contact Program-consumer fora’ at www.raviforjustice.blogspot.com/2011/11/chief-ministers-contact-program.html)

This is what the National Commission to Review the Working of the Constitution said about our judiciary:

‘Judicial system has not been able to meet even the modest expectations of the society. Its delays and costs are frustrating, its processes slow and uncertain. People are pushed to seek recourse to extra-legal methods for relief. Trial system both on the civil and criminal side has utterly broken down.’ Also, ‘Thus we have arrived at a situation in the judicial administration where courts are deemed to exist for judges and lawyers and not for the public seeking justice’.

Two members of this judiciary-headed, judiciary-heavy commission recorded the following:

Dr Subhash Kashyap: ‘While no comments are being made on what went wrong in the procedure, priorities and perspective, it may be put on record that several of the recommendations now forming part of the report go directly counter to the clear decisions of the Commission on which the unanimously adopted draft report of the Drafting and Editorial Committee was based’.

Ms Sumitra Kulkarni:

1. I believe in a Unified and truly Secular India. However, the Commission debates seemed often to reduce the Constitution to being a platform for divisiveness and not unification.

2. The Commission did not initiate or promote sincere debate in the public with regards to the issues that it was contemplating. The efforts was more to “evade and defer” instead of to “identify issues, table them for debate and to deal with them”.

Interestingly, while the judiciary is ordering the executive to bring transparency in the appointment of information commissioners, the executive is in the process of getting a law legislated to bring transparency in the appointment and posting of judges!

When it comes to transparency in the judiciary, matters are not so simple as appointment and posting of judges. Sometime ago, a visual media channel was ordered to pay a compensation of Rs 100cr to a judge whose photo was inadvertently telecast along with the report of a scam in which another judge was an accused. But a former scientist of ISRO who was imprisoned, tortured and disgraced over a prolonged period of time before being acquitted has been running around the courts for years seeking compensation of a mere Rs 1cr. Even in the matter of RTI, it is the judiciary that has proven anti-citizen by prescribing exorbitant application fee, cost and even introduced a fee for the first appeal!

It would be worth recapitulating some cases to illustrate how the RTI Act has been messed up. In an application seeking action taken on an application submitted to the Chief Minister of Kerala, the PIO replied that ‘it appears that the application was submitted during the tenure of the previous CM. Since there is no procedure for handing over documents when incumbents change no information can be provided.’ The matter is pending with the information commission. But in an earlier case when minutes of a meeting convened by the CM had been sought, the reply by the PIO was that there were no minutes available. The IC accepted the ridiculous statement on affidavit and dismissed the appeal! It is pertinent that the Delhi High Court had held that ICs can order probe in cases of missing files!

Next, an application was submitted for copies a high court and apex court order each, in the matter of holding bandhs illegal. The PIOs in the office of the Home Minister of Kerala have been passing the buck from one to another; one of them sent the application to the PIO of Kerala HC who replied that since the order pertained to judicial proceeding it was exempted from disclosure under the High Court RTI rules!

Even when the Delhi HC repeatedly made it clear through a couple of orders that mere pendency of investigation cannot be a valid reason for denying information, police authorities have been routinely denying information on this ground. But where the RTI Act has failed, media has succeeded in bringing much information into the public domain. In one case, even the original of a vigilance inquiry report recovered from the premises of an accused was reported by the media!

In the Central Information Commission, the writer has appeals pending since July 2010. On an application seeking certain details of appeals filed, it seems these documents are not even perused by anybody in the Commission, leave alone the ICs. Two appeals against the same public authority - State Bank of India - were filed on the same day under a proper covering letter indicating the references of the two appeals. One appeal was disposed of within five months, but the other appeal is still pending. On trying to find out its status it was revealed that it could not even be traced!

And the order of Shailesh Gandhi, the only RTI activist appointed information commissioner and given the opportunity to implement the law was, to say the least, shameful. He dismissed the appeal saying that all information available had been provided!

(See ‘RTI Act-Shailesh Gandhi and Schopenhauer’s Law of Entropy’ at

http://raviforjustice.blogspot.in/2012/06/rti-act-shailesh-gandhi-and.html)

When the RTI Act itself seems not to have percolated down to the last public authority, an illegal office memorandum (OM) by the DoPT seems to have gained enough ground. This OM, issued on September 24, 2010 directs PIOs not to comply with Sec 6(3) of the RTI Act and if the PIO knows where part of the information sought would be available, he can direct the applicant to file a separate application to the PIO of that public authority! To add credibility to its direction, it states that the CIC was consulted. On pursuing the matter through the RTI Act, the CIC confirmed that there is no record of any such consultation! But the circular remains and PIOs have been using it to harass applicants.

In one case, an application was submitted to the office of the District Collector seeking information on two issues - one, on UID / Aadhaar and the other on computerization of land records. The first part was transferred to another public authority under Sec 6(3), but for the latter part the applicant was asked to file separate applications to the various tehsildars. The IC upheld this decision of the PIO. When this issue was raised at a seminar on RTI, an IC of the CIC said that they were only bound by the law and the rules framed by the competent authority and not by any circulars! Also, Shailesh Gandhi in his decision No CIC/SM/A/2011/000278/SG/12906 dated 16/6/2011 gave a detailed explanation why Sec 6(3) applies not only to just one other public authority but to as many as would be needed!

A similar problem persists with implementation of Sec 5 of the RTI Act. While most central public authorities can be accessed through CAPIOs designated at certain Head Post Offices, it appears not all central public authorities are served by them. At state level in Kerala, almost all public authorities have designated SAPIOs but none of them provides access to other state public authorities!

Then there is this order dated December 12, 2011 of the apex court in Civil Appeals Nos 10787-10788 of 2011 which bar the ICs from giving any directions to a public authority to provide information while entertaining a complaint under Sec 18 of the RTI Act! The net effect of the order is that if an applicant files a complaint without availing the opportunity to appeal under Sec 19(1), the only thing the IC can do is to impose penalty under Sec 20 without ordering the public authority to provide the information sought.

Incidentally, Sec 19(1) can be availed only if the applicant does not receive a reply from the PIO or the reply received is unsatisfactory. If the application is not even accepted by the PIO then the applicant can only prefer a complaint under Sec 18, which the IC can inquire into and stop short of issuing any executive order, because by the same logic of not being competent to issue a direction to provide the information sought, Sec 18 does not empower the IC to do anything in the nature of issuing an executive order. Weird, isn’t it?

All these vagaries, arbitrariness, brazenness suffice to justify the question raised - are those responsible for governance idiots or traitors?

Tailpiece:

‘The crucial failure is the innate resistance in governments and governmental processes to the fundamental article of democracy, viz. that all power and all authority flows from the people and that all public institutions are meant solely to serve the public interest. The assurance of the dignity of the individual enshrined in the preamble of the Constitution has remained unredeemed; from this fundamental breach of the constitutional faith flow almost all our present ills. The first and the foremost need is to place the citizens of this country at center-stage and demonstrate this prioritization in all manifestation of governance’ – Report of the National Commission to Review the Working of the Constitution.

by P M Ravindran | Vijayvaani 

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