I had concluded my last part with the promise that I will be dealing with more methods used by public authorities, including information commissions and courts, to subvert the only pro- democracy and citizen friendly law, the Right to Information Act.
Way back in 2013 I had sought some information pertaining to Members of Parliament. It included the total number of pensioners/family pensioners, amount spent on pension and other facilities/concessions provided to them during the previous three months, month wise. I got the following information:
A similar request was made in 2017, seeking information of the previous 3 years. I did not get any information.
At the end of this critique I am attaching a copy of Department of Personnel and Training OM No F/10/2/2008-IR dated 24/09/2010. This, on the face of it is illegal as it subverts Section 6(3) of the RTI Act which reads as:
6 (3) Where an application is made to a public authority requesting for an information,—
(i) which is held by another public authority; or
(ii) the subject matter of which is more closely connected with the functions of another public authority,
the public authority, to which such application is made, shall transfer the application or such part of it as may be appropriate to that other public authority and inform the applicant immediately about such transfer:
Provided that the transfer of an application pursuant to this sub-section shall be made as soon as practicable but in no case later than five days from the date of receipt of the application.
The subversion has been attempted by emphasizing on the use of singular while referring to that other public authority.
But a central information commissioner, Shailesh Gandhi, in one of the rarest good decisions of an information commissioner had in his decision dated 16/06/2011 (Chetan Kothari Vs CPIO Cabinet Secretariat; Appeal No. CIC/SM/A/2011/000278/SG) amply clarified that DOPT’s office memorandum no. 10/02/2008-IR dated 12/06/2008 is not consistent with the law. Incidentally, this was an earlier version of the OM dated 24/09/2010 dealing with the same issue.
Here is the relevant extract from his decision:
The point to be determined is whether Section 6(3) means that the transfer should only be made to one public authority or to multiple public authorities, if required. Section 13 of the General Clauses Act, 1897 stipulates inter alia that in all central legislations and regulations, unless there is anything repugnant in the subject or context, words in the singular shall include the plural, and vice versa. Section 13 of the General Clauses Act, 1897 enacts a general rule of construction that words in the singular shall include the plural and vice versa but the rule is subject to the proviso that there shall be nothing repugnant to such a construction in the subject or context of the legislation which is to be construed. This principle of law has been well- established and applied by the Supreme Court of India from time to time viz. in K. Satwant Singh v. State of Punjab 1960 SCR (2) 89, Narashimaha Murthy v. Susheelabai & Ors. AIR 1996 SC 1826 and J. Jayalalitha v. UOI & Anr. AIR 1999 SC 1912, as well as by several High Courts while interpreting various statutory provisions.
In spite of this a Chief Information Commissioner of the Kerala State Information Commission had been going around advising public authorities not to transfer the application to even another public authority if the information sought was not held by it and advise the applicant to seek information from that public authority directly. I had an occasion to hand over a copy of Shailesh Gandhi’s decision to him but his response was that he was not bound the decisions of any information commissioner of the Central Information Commission. To my query whether the General Clauses Act and orders of the apex court quoted by Gandhi were not applicable, there was no response.
The matter did not end there. I sought the copy of the document that would substantiate the claim- of having consulted the Chief Information Commissioner of the Central Information Commission- in the 2nd paragraph of the OM. Needless to say, I did not get any.
A notice under Section 80 of the Civil Procedure Code to DoPT elicited no response either.
Further pursuit under the RTI Act, on action taken on the notice, got a copy of the notings of their File No 11/2/2013-IR. Its relevant extract is given below:
7. As per the available records, it is found that the above clarificatory OM dated 24.09.2010 was issued as per the telephonic advice of CIC to the then JS (AT&A) . Further, it is pertinent to mention that earlier OM dated 12.06.2008 was issued after due approval of Secretary(P)
I remember that in the initial days of the RTI Act, an application seeking the tenures of the District Collectors and Superintendents of Police for the previous 10 years had been transferred to all the district headquarters and the information was provided by the respective offices in the district headquarters. It had revealed that the average tenure of district collectors in all the districts, other than Thiruvananthapuram, Ernakulam and Kozhikkode, was about a year and that of the SPs was about 10 months. After that the situation did improve and I can say that at least in my district these two public servants have been having on an average more than 2 years. But has it led to any improvement in the administration or law and order? I would say, no.
In another case the Director of Panchayat sent copies of the application to about 900 Gram Panchayats and I got replies from almost all of them.
On 14/07/ 2011 I had sought information on 2 subjects-on the implementation of UID (Adhaar) and computeriation of land records- from the office of the District Collector. The application was transferred to two different public authorities under Section 6(3) of the Act. Most of the information sought was not provided. In the matter of 2nd appeal, submitted on 11/10/2011, both the Public Information Officer (PIO) and the First Appellate Authority (FAA, the District Collector) had appeared before the Kerala State Information Commission on 14/11/2012.
In his order dated 02/03/2013, the information commissioner wrongly upheld the claim that in the matter of computerisation, the Government Order dated October 1997 had not been received by the public authority and hence the information sought could not be given. This was wrong for these reasons:
Ø If the GO dated 23 (or 25) of October 1997 on the important topic of computerisation of land records, had not been received by the public authority till 14 July 2011 then the information provided that 68.2% computerisation had been completed had no authenticity.
Ø Also, the PIO had replied that the taluk wise details should be sought from the respective taulk offices. This was wrong because the PIO was required to transfer the application to these taluk offices as per Section 6(3) of the RTI Act.
Ø The FAA (District Collector) had in his reply to the 1st appeal quoted a letter from General Administration Department (Co-ordination) dated 18/10/2010 quoting an Office Memorandum (OM) Number F10/2/2008-12 (He was possibly wrongly quoting OM No F/10/2/2008-IR dated 24/09/2010, mentioned earlier), to justify not complying with Section 6(3) of the RTI Act.
Ø Regarding UID, the Project Director Kerala State IT Mission had sent a letter to the District Collector on 16/08/2011 which was not provided to me by the PIO, Collectorate. Further, the FAA as the District Collector was the Working Chairperson of the District Implementing and Monitoring Committee for implementing UID as per Government of Kerala order dated 26/02/2011. So there was no way the FAA could be exonerated of his lapses while replying on 25/09/2011 to my 1st appeal dated 22/08/2011.
Ø The information commissioner had also directed the PIO, Akshaya to provide all information pertaining to Adhaar within 10 days of receipt of the order and also to explain why penalty under Section 20 should not be imposed on him for his lapse. Neither the copy of the explanation was provided to me for my counter arguments nor was the copy of the order accepting his explanation and exonerating him was provided. Truly a case of subverting the law punishable under Section 219 of the IPC and of corruption, at least in its widest sense as accepted by the Supreme Court while dismissing the contempt of court case against Adv Prashant Bhushan for alleging that 8 Chief Justices of India were corrupt.
Ø Consequent to the hearing by the Information Commissioner I had received copies of two letters from the PIO, Collectorate-one dated 4/4/2011 from Cabinet Secretary to State Chief Secretaries and Kerala Government Order dated 26/02/2011.
Ø Consequent to the order of the Information Commissioner I had received a copy of Project Director Kerala State IT Mission letter dated 16/08/2011 addressed to the District Collector, which was practically providing most (not all) of the information sought about UID/Adhaar.
Here are some important articles of the Constitution:
124. (1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven2 other Judges.
124. (7) No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.
Similarly, articles 216 and 220 govern the judges of the high courts.
Based on these I had sought the following information from the Supreme Court:
1.1.Any amendments made to the above articles where by judges other than the CJI and Chief Justices of High Courts are permitted to use the honourific Justice before their names, during their service and after retirement. And,
1.2.Any amendments to the above articles whereby retired judges of the apex court and high courts are permitted to be appointed to various bodies like National Human Rights Commission (NHRC) and State Human Rights Commissions (SHRCs) and other bodies.
The reply by the PIO was:
It is beyond the jurisdiction and scope of the duties of the CPIO, Supreme Court of India under the Right to Information ,Act, 2005 to interpret the Iaw, judgments/orders of this Hon'ble Court or of any other Court, to give explanation, opine, comment or advise on matters. Your request is not covered under Section 2 (f) of the Right to Information Act - 2O05"
Section 2(f) of the RTI Act defines information as:
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;
I leave it to the readers to guage the absurdity of the reply by the PIO of the highest court of the land. Just a clue: I have only sought copies of any amendments to the articles of the Constitution, referred to.
Before I conclude this part here are some questions which one always wanted to ask but never could.
Ø Which is the only legacy of colonial times that is being perpetuated by any public office in the country?
Ø Amoung our public servants, who are more prone to lying blatantly?
Ø Amoung our public servants, who are more prone to subverting the law?
Ø Amoung our public servants, who are the ones ill treating the public the most?
Those who have time and inclination may post their answers to the email id given below. The answers shall be compiled and published as a survey result in due course. Do remember to use JD-27-Quiz as the subject.
Tailpiece: The apex court of the land just dug the last nail on the coffin of its relevance this Christmas season when all the judges have gone on vacation, not even having a vacation bench, as has been the practice so far.
P M Ravindran/ firstname.lastname@example.org 21 December 2022