Eight Years of Right to Information: Are those responsible for government idiots or traitors? – P.M. Ravindran

Right to Information Act

Major P.M. Ravindran2013 October 12: It is eight years since the Right to Information Act came into being for the citizens. I repeat, for the citizens, because it had come into force on 15 Jun 2005 but could not be used by the 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 of its existence? That, even the Kerala State Information Commission has not published details required to be pro-actively disclosed as per Sec 4(1)9B) of the Act speaks volumes for the subversion of the law by those very public servants tasked, empowered and paid to enforce it! The one law that could have ushered in real democracy without any bloodshed lies bloodied in its deathbed, raising the question: has the government declared war on its own people? Read on….

Dr Abdul Kalam is undoubtedly one of the best Head of State we ever had in this country. He had even earned the sobriquet Peoples’ President. But it is learnt that even he had, before signing the document that was soon to become the much touted transparency law of the land, sought to exclude his office from its purview. Anyhow, later events, related to disclosure of info about imposition of Emergency, has revealed how the law can be misinterpreted to deny info. 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)

Chief Justice K.G. BalakrishnanAnyhow, K G Balakrishnan, as the 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! His decision 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 with the apex court itself! (And it remains to see how many of us will survive to see the orders of the apex court!)

Interestingly, it needs to be noted that even when the CIC held the CJI to be wrong it did not go the whole way to impose the mandatory penalty under Sec 20 of the RTI Act. And do you know who would have had to pay this penalty if the CIC had done its job right? K G Balakrishnan, the then CJI! Isn’t the law truly democratic? But the fact remains that not only in the case of K G Balakrishan but in the majority of cases the information commissioners fail in their duty to impose the mandatory penalty for delay, not only causing colossal loss to state but also rendering the law impotent! Coming to this failure, it has another dimension also. It makes the information commissioners the only people liable to misuse the law and breeding corruption on that count too. For example, what if the IC fails to impose the mandatory penalty by accepting the penalty amount as bribe from the delinquent public information officer? The public servant is saved a disgraceful punishment and a bad entry in his service records and the unscrupulous IC becomes richer too!  In fact in every case an IC has directed the PIO to provide any information and refrained from imposing the mandatory penalty it could reasonably be presumed that there has been corruption in the transaction. And for those who can afford to go to court the IC can also 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 fall out too. Even when the final word on the legality of the then CJI’s decision is pending with the apex court, almost all the judges have voluntarily disclosed their assets and the details are available on the web sites of the respective courts! A small victory for RTI but a giant leap for democracy indeed!

CIC must be a judge!The matter however does not end there. On 13 Sep 2012 in the famous Namit Sharma case the apex court came down heavily on the executive for the lack of transparency in the appointment of information commissioners. Thus far the court was bang on target and this is something that has been vociferously demanded by RTI activists throughout the country for ages. But then the court went overboard and directed that all appeals must be heard by legally qualified information commissioners and was quite brash in demanding that the CICs should be either retired high court or apex court judges too! Thankfully, on 16/4/2013 the court has stayed this latter part of the order. It would be interesting to find out what the information commissioners throughout the country, more than 90 percent of whom had been bureaucrats without any qualification in law, had been doing during the period from 13 Sep 2012 to 16 Apr 2013. It would be reasonable to presume that they all had paid holidays at the exchequer’s cost! A visit to the official website of the Kerala State Information Commission shows, on 07 Oct 2013, that for the year 2013 the five ICs between themselves had disposed off only 91 appeals, which is just about what as many ICs of the Central information Commission disposes off in one day! Worse, more than 50 percent of the appeals had been filed in 2010 and 2011! That is the delay in disposal is almost 3 years!

With the apex court having expressed reservations about non-law qualified people sitting in judgement in (quasi) judicial proceedings it is important for us , the mango people, to have a look at the competence of our law qualified judges themselves. One need not repeat the Judges’ Assets case and how the then CJI’s decision had been 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! Now, what about the simple case of date of birth of the former Chief of Army Staff, Gen V K Singh? As per a recent report in the media the retired General has been hauled up for contempt of court when he had expressed surprise at to how the courts had followed different criteria in confirming the age/date of birth in his own case vis-a-vis the juvenile accused in the notorious Delhi rape case!

I also have with me 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 Dr. S.C. Kashyapcondoning the delay, called interim appeal in judicial parlance! (Copies of these two documents are attached for ready reference.) And then there is the case of a law qualified President of the District Consumer Disputes Redressal Forum who had noted in the docket of a consumer complaint that the hearing is adjourned due to absence of staff and when the attendance registers were checked it was seen that all the staff had been marked present! Well, it does pay to be law qualified, because it will let you manipulate processes and decisions effectively and efficiently, doesn’t it? That’s it! (Readers may view the blog ‘Chief Minister’s Contact Program: Consumer Fora’ for more details.)

Now this is what the National Commission to Review the Working of the Constitution has 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.”

About this report by this judiciary-headed, judiciary-heavy commission itself, two of its members have recorded the following notes:

Dr Subash Kashyap has written that “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.”

And Ms Sumitra Kulkarni drove in the last nails thus:

  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.

  1. 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”.

Sumitra Gandhi KulkarniIt is also interesting to note that 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!

Unfortunately, when it comes to transparency in the judiciary, matters are not so simple as appointment and posting of judges. It had been reported by the media that a visual media channel had been ordered to pay a compensation of Rs 100/- Cr to a judge whose photo had been inadvertently telecast along with the report of a scam in which another judge had been an accused.  But a former scientist of ISRO who had been imprisoned, tortured and disgraced over a prolonged period of time before being acquitted has been reportedly running around the courts for years seeking a compensation of a mere Rs 1 Cr!

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 1st appeal!

It would be worth recapitulating some cases to illustrate how the RTI Act has been messed up by now.

In an application seeking action taken on an application submitted to the CM 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 had also accepted the ridiculous statement on affidavit and dismissed the appeal! It is pertinent to mention 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 has been passing the buck from one to another and one of them also sent the application to the PIO of Kerala HC. The reply by the PIO HC was that since the order pertained to judicial proceeding it was exempted from disclosure under the High Court RTI rules!

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

In the Central Information Commission I have appeals pending since Jul 2010! On an application seeking certain details of appeals filed it has come to pass that 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- had been filed on the same day under a proper covering letter indicating the references of the two appeals. One appeal was disposed of within 5 months but the other appeal is pending till now. 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 who had been appointed an information commissioner and provided the opportunity to implement the law, was, to say the least, shameful! He dismissed the appeal saying that all information available had been provided! (Readers may go through the blog ‘RTI Act-Shailesh Gandhi and Schopenhauer’s Law of Entropy’)

When the RTI Act itself seems not to have percolated down to the last public authority an illegal office memorandum by the DoPT seems to have gained enough ground. This OM, issued on 24 Sep 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 has also stated that the CIC had been consulted. On pursuing the matter through an application under the RTI Act, CIC confirmed that there is no record of any such consultation! But this circular still 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 or Adhaar 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 has given a detailed explanation why Sec 6(3) applies not only to just one other public authority but to as many as would be needed!

Justice M.N. Venkatachaliah & BJP Law Minister Arun JaitleyA similar problem persists with the implementation of Sec 5 of the RTI Act. While most of the 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. But at the state level in Kerala almost all public authorities have designated SAPIOs but none of them provides access to other state public authorities!

And then there is this order dated 12 Dec 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 info 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, say 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 info sought Sec 18 does not empower the IC to do anything in the nature of issuing an executive order! Weird, isn’t it?

And these vagaries, arbitrariness, brazenness, one presumes, would suffice to justify the question raised in the title of this critic: are those responsible for governance idiots or traitors?

Report of National Commission to Review the Working of the ConstitutionTailpiece: “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.

» P.M. Ravindran voluntarily retired from the Army with the rank of Major in 1998 and has been working since as a freelance activist.

References

Kerala State Consumer Disputes Redressal Commission Document # 1.

Kerala State Consumer Disputes Redressal Commission Document # 2