Wednesday, 2 May 2018




“Power will go to the hands of rascals, rogues, freebooters; all Indian leaders will be of low caliber & men of straw.  They will have sweet tongues & silly hearts.  They will fight amongst themselves for power & India will be lost in political squabbles.  A day would come when even air & water would be taxed in India.”- Winston Churchill, opposing grant of freedom to India

'...stop not until the goal is reached!’- Swami Vivekanada

‘You are not defeated until you give up!’- old quote

On 15 Aug 1947 this country is believed to have woken up to a new dawn of freedom. But shortly after that a one man commission was appointed to assess the extent of corruption in government offices. On submitting the report the author had reportedly exclaimed that the experience had made him believe in God. On questioned how, he had said ‘there is so much corruption but still the people seem to be happy. It has to be the hand of God!’

There is no need to harp on the status of citizens in a democracy. They are the sovereign entities. But the way our institutions of governance were set up and nurtured the claim of our’s being a democratic society may look preposterous. Nowhere are citizens of a democratic society treated so shabbily as in this ever developing nation. So it was that in the 1970s itself Lok Nayak Jayaprakash Narayan gave a call for a second freedom struggle, even asking the soldiers in uniform not to obey illegal orders of their superiors. What followed was Emergency. Inflicted on us by a power hungry PM, Indira ( I am omitting the surname Gandhi, because I consider it a misuse of the surname of the person who is revered as the Father of the Nation) convicted for electoral malpractices by a high court and upheld by the apex court, but had not only not (repeat not) been punished but quite illogically been allowed to continue in office. But the citizens rose to the occasion and at the first opportunity they got gave her the punishment she deserved. But those who came to power squandered the opportunity. People decided that a known devil is better than an unknown angel. On returning to power though Indira tried to do better, it was impossible for her to do so what with her nature not being tuned to democratic needs. Every institution of governance suffered irrevocably. Corruption got institutionalized. Sycophancy ruled the roost.

Meanwhile in Hong Kong a silent revolution took place. When corruption had hit an all time high, the Independent Commission against Corruption (ICAC) was established in 1974. Gradually, the ICAC gained momentum and power. The ICAC adopted a three-pronged strategy of effective law enforcement, prevention and education in the fight against corruption, respectively undertaken by the Operations Department, the Corruption Prevention Department and the Community Relations Department. No doubt corruption took a nose dive there, though not completely eliminated.

In India the greatest disaster has been the judiciary. Even the judges can be heard admitting the huge back log of cases. But instead of trying to do anything about it (like reducing their holidays or denying unwarranted adjournments) they are seen simply passing the parcel by demanding more judges, more infrastructure and more resources. They can be heard quoting an irrelevant judge to population ratio to justify their demands. This is blasphemy. Any judge who quotes such a ratio should be immediately considered unfit for the job he is tasked to perform. The US of A which has only 25 percent of our population has many more times cases filed  than in our country where a large percentage of population is still illiterate and the majority are concerned only of their next meal. And of the remaining too, many, like me, cannot even think of approaching a court for justice not only because of denial of justice through preposterous delays but also due to the high cost involved. I am among those who believe that the denial of justice is not only through preposterous delays but it is quite often denied even at the end of it. Adv Prashant Bhushan, talking on the need for a simpler judicial system, had said that ‘Not even 1 % get justice in present system’. This 1% cannot be 1% of the population but only 1% of those who approach the judiciary hoping to get justice. Please see  

I had the opportunity to attend the valedictory function of a seminar on Access to Justice organized by the Supreme Court Advocates on Record Association a few years back. Ravi Shankar Prasad, then Union Law Minister had painted the right picture then when he said that at the beginning of the litigation proceedings the litigant went by car and the advocate by cycle and by the time the litigation was over, the litigant was on cycle and the advocate was driving by in a car! Recently, it was reported in the media of Senior Advocate Ram Jethmalani claiming that his fee, only for conference, was Rs 1 Cr!

Speaking of Ram Jethmalani, there is an interesting incidence that was reported when he had been Union Minister in A B Vajpayee cabinet. He had directed that all documents in his ministry be made available for scrutiny to members of the public and if they required it they could take copies also at a nominal fee. This was long before the RTI Act was enacted and its predecessor the Freedom of Information Act was being debated. The report said that the Secretary in the ministry took up the matter with the Cabinet Secretary who told him he could hold on to the proposal as the FoI Act was in the offing! And that shows the strangle hold of our bureaucracy on the government. In an article titled ‘Survival by blackmail or art of governance’ (Available at I have dwelt on this in a little more detail.

Of the three organs of our Constitution we have been freely blaming the politicians for everything. While it is warranted only because it is them that we have empowered to steer this country on the road to progress there is a need to appreciate their handicaps also. Firstly, it is the short term for which they are elected. On this, of course, nothing can be done. But what can be done is that certain qualifications and experience have to be prescribed for the candidates aspiring to be people’s representatives. Next, the accountability of the bureaucrats has to be defined and all such protective armour like prior permission for their prosecution has to be done away with. When being prosecuted or prosecuting they should go through the litigation process in their personal capacities, investing their own time and resources and being rewarded only if there is material savings to the state. R.K.Raghavan writing in the Hindu of 23 Jan 2017 (‘Dealing with the deadwood’, available at has stated ‘The only obstacle in the way of drastic civil service reform — like the one pursued by the present government at the Centre — is the judiciary that overturns or stays every administrative action against an erring senior officer. Courts would earn the admiration of a harassed public if they stopped interfering in disciplinary matters once they are satisfied that prescribed procedures had been followed in a case coming up before them and there is no malice writ large on a decision. Judicial overstepping, while correcting unjust action against a few honest civil servants, unwittingly promotes the cause of many unscrupulous elements. The track record of administrative tribunals in the country is a matter of great concern to those looking for a balanced and objective bureaucracy.’

Having said that, there are many important and urgent changes required in the way we elect and compensate our elected representatives themselves. Some of the existing practices are an insult to the very concept of democracy. Among these are permitting candidates to contest from more than one constituency and allowing even candidates rejected by the electorate to be a representative for six months and then getting him elected to the Rajya Sabha or getting an elected member to resign and make way for this ‘exalted’ candidate. On tasking, the way elected representatives are seen doing things one is left wondering whether we elect them to go about inaugurating various functions in their constituencies or be our representatives in the law making bodies? Should they not be expected to hold consultations and consolidate their constituency’s opinion on various issues being taken up in the law making bodies and project them appropriately? (For some out of the box thoughts on reforming our democracy please see the blog at And then there is the matter of compensation. While ministers may be considered full time employees the other elected representatives are not. Any citizen with an above average knowledge of the environment in which he is living and can effectively take up issues that needed attention and legislation should be able to represent his constituency on a pro bono basis. They may also be provided an ex gratia payment on completion of their tenure. But what we find is that they are made eligible for salaries and even pension for themselves and their spouses on highly objectionable terms. For example they become eligible for a minimum pension from the moment they take oath, full pension on completing one tenure and an increment for every year of additional service as an elected representative. (This is when even short service commissioned officers of the armed forces who do up to 10 years of service are not eligible for any pension whatsoever!) As per information gathered under the RTI Act, the pension disbursed to 3857 ex MPs/family pensioners of MPs, during the three months Jan-Mar 2013 were Rs 38648441, 46891359 and 43554552 respectively. That is an average of Rs 11150 per month. But that is peanuts compared to an amount of Rs 2,545 crores paid by the Lok Sabha Secretariat to the railways towards travel expenses of these ex MPs/family pensioners for the same quarter. And that works out to Rs 22,00,000/- per pensioner MP/family pensioner per month. And we are all familiar with the reference to Parliament as the cheapest rehabilitation home for the aged, going by the subsidized food served in the Parliament Canteen. Then there is also the objectionable practice of having politicians who have outlived their political career enter the Parliament through the Rajya Sabha. Conceptually atleast it is meant for representing experts from various fields who cannot get elected through a popular ballot. But apart from defanged politicians all you can find are film stars and cricketers being provided berths there. Doctors, engineers, soldiers, artists, litterateurs, industrialists etc need to be given representation, not only for making their voices heard but also for using their expertise while framing laws that pertain to their domain of expertise.

Taming the bureaucracy is easily done provided there is a political will. Today most of the bureaucrats are made to toe the line by unfair practices like threat of transfer to places or appointments that are not generally coveted. In one instance the people of Kasargode in north Kerala openly opposed the tendency to transfer employees from southern districts to their district in what is popularly known as punishment postings. There is definitely a need to provide fixed tenures for these babus to perform effectively. In exceptional circumstances when they have to be transferred before completion of their prescribed tenure a detailed explanation should be made mandatory. But it should also be ensured thereafter that they deliver their services to the satisfaction of the public. Even technology can be used to collect feedback from citizens on their satisfaction level in the matter of ease of doing business with public servants and this should be a parameter for their career progression.

Making the judiciary transparent, accountable, effective and efficient will remain a challenge as things are now. Not only judgments but also the docket sheets should be published on the websites of courts so that the public can study how effectively and judiciously the judges are performing their duties. Since the judiciary has unwarrantedly kept these out of purview of the RTI Act, let me quote an example of a consumer dispute that was decided by the District Forum at Palakkad. For the uninitiated the Consumer Protection Act has prescribed a period of 3 months to dispose of a dispute.

In OP 282/1999 (OP No 85/1995 transferred from Malappuram), the opposite party had produced interim stay order on 28/10/99 and the stay was vacated only  on 8/6/2005 but through out this period the case was listed 58 times and adjourned! It was finally posted for orders on 6/7/07 but was opened for re-hearing suo moto on 15/2/08 and went on an adjournment spree from 3/3/08 to 31/5/2010. It was adjourned 17 times, including 5 times for want of members/President and 10 times for orders only! It was dismissed when an application was submitted under the RTI Act to find out the status!

Similarly, on a particular day, while all the disputes listed had been adjourned enmass due to absence of staff, the attendance register showed the complete staff as present!

Suggestions to the CM, Kerala to set up a  cell to monitor the performance of all the quasi judicial bodies have fallen on deaf ears.

In the case of judiciary, it is aborable that provisions like the contempt of court still exist in our Constitution and other statutes. The only justification for its existance could be the need to ensure compliance with orders of courts. But the truth is that you can hardly find it being used for that prupose while being used freely to supress scrutiny and criticism. The most recent conviction of a high court judge, C S Karnan, for contempt of court when he had made specific allegations of corruption and the compromise reached in the matter of 4 judges who cast aspersions on the Chief Justice of India speak for itself.

Let me conclude with a parting question: doesn’t democracy demand a Contempt of Citizen (Prevention of) Act? 




When the opposing party violated the Rules and the law, I filed motions.  I quickly realized that the judges would protect the opposing party and attorney no matter what, but I did not let that stop me.  Every time I filed a Motion for Sanctions and the judge denied it for bogus reasons, I had more proof of judicial corruption.  I also had another appeal.  And when the appellate court protected the corrupt judge and the corrupt attorney for the other party, I had more proof of judicial corruption.  My goal will always be to obtain as much proof as possible of the corruption.
- William M. Windsor             How to Fight Judicial Corruption            Tuesday, 24 May 2011 10:48

A couple of days back I received a mail from an RTI activist informing that another RTI activist has been murdered in Gujarat taking the toll of RTI activists murdered there to 11! While any crime has to be condemned and murder is the worst among them, I was left wondering whether the RTI Act was still surviving in Gujarat! The Central Information Commission and the Kerala State Information have definitely murdered the law itself. The only reason rare activists persist in using the law has been aptly explained by William M Windsor, as quoted above. The mission statement of Save RTI Campaign also states this in different words.

In Part 3.1 I have delved adequately into the modus operandi of the Kerala State Information Commission and also the authorities responsible for ensuring that this Commission performs its tasks effectively and efficiently.  It has not been any better with the Central Information Commission and the authorities responsible for ensuring that it performs its tasks effectively and efficiently.

The treason started with the first Chief Information Commissioner (CIC) Wajahat Habibulla who had been earlier a Secretary to the Government of India. He was a member of the Indian Administrative Service (IAS) which had supposedly inherited the mantle of the Indian Civil Service (ICS) touted as the steel frame of government administration during the colonial days! The case law I am going to narrate will make any thinking citizen wonder if this is the quality of the steel frame of modern government administration and whether it should continue at all!

It all started with me handing over a complaint, dated 17 Aug 2005, to the President, National Consumer Disputes Redressal Commission (NCDRC) on 22 Aug 2005. The complaint was against the President of the Kerala State Consumer Disputes Redressal Commission (KSCDRC), Hassan Pillai, a former judge of the Kerala High Court, who had unlawfully declared holidays for that Commission during the summer, similar to the holidays, availed by the high court itself. A consumer organization, Consumer Vigilance Center, Thiruvananthapuram, had taken up the matter with the Kerala High Court where the President filed a false affidavit stating that he had not declared the holidays. He was proved wrong and the judgment in the case had mentioned it clearly (Refer Consumer Vigilance Center Vs State of Kerala, 2004(3) KLT 1073. But except for the holidays not materializing no action had been taken against the President who was actually guilty of perjury! Since in earlier complaints against the Commission the Government of Kerala had taken the stand that the administrative control of the state commission was vested with the national commission this complaint was submitted to the national commission on behalf of the Save Consumer Courts Action Council, a collective of consumer organizations in the State. The complaint was handed over to the President, M B Shah, former judge of the apex court, personally and it had been accepted after all his queries had been satisfactorily answered. But, as it usually happens with these public authorities, there was no action taken and no response either! So the matter was pursued under the RTI Act. A simple application to provide information on action taken on the complaint got an irrelevant reply that the matter should be taken up with the Government of Kerala! Since this was certainly not the information sought the matter was taken up with the Central Information Commission. And horror of horrors, a complaint against a delinquent central public authority to the Central Information Commission was forwarded to the Kerala State Information Commission for further action! The matter was taken up with the CIC, Wajahat Habibullah, through e mail and promptly got a reply that the matter will be looked into.  On getting no further communication even after considerable lapse of time, copy of the complaint was resend to the CIC. And again, it was also forwarded to the KSIC! And it was then that a complaint was submitted to the President of India to remove the CIC under the provisions of Sec 14(3)(d) of the RTI Act which states that ‘the President may by order remove from office the Chief Information Commissioner or any Information Commissioner if the Chief Information Commissioner or a Information Commissioner, as the case may be, is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body’ (For details please see the copy of the complaint at . Needless to say nothing happened on that also!

In the Judges’ assets case also Wajahat Habibulla can be seen flouting the law he was tasked, empowered, equipped and paid to enforce. Firstly, in the decision of 6/1/2009, in Appeal No  CIC/WB/A/2008/00426 it is stated that the full bench of the Commission heard the matter on 5/11/2008 but it has been signed by only 3 ICs including the CIC. Now, the RTI Act doesn’t make any difference between ‘single bench’ and ‘multi bench’ of the Commission. So the lack of confidence of the CIC in dealing with the matter alone should be seen as his lack of competence arising from the ignorance of the law itself which he is expected to be totally conversant with. And even the multi-member bench could only decide that the information sought needed to be provided. They failed to take cognizance of the fact that even if the information was provided on their directions the period for imposing the maximum penalty of Rs 25,000/- on the defaulting PIO had been long over on 15/3/2008. They also directed the wrong PIO to provide the information sought and not the actual custodian of the information sought who is the deemed PIO in this case! And this deemed PIO being the CJI himself it was required that the penalty of Rs 25000/- was imposed on K G Balakrishnan, the then CJI, for failing to provide the information sought within the prescribed period of 30 days, that is by 9/12/2007. It would be the height of naivety to believe that the PIO of the Supreme Court Registry was not aware of Sec 5(4) and 5(5) of the RTI Act and could not seek the assistance of the CJI who was the de facto custodian of the information sought. Worse thing is that in spite of the multi bench decision of the information commission the PIO only sought to prolong the case by appealing to a single bench and later to a division bench of the Delhi High Court. The matter is now pending before the apex court itself! And knowledgeable citizens have been asking how the apex court could sit in judgment in a case involving itself as a defendant. But one positive fall out has been that at the initiative of a couple of judges of some high courts not merely the information sought-whether judges are submitting their property returns to the CJI/CJs of high courts – but the contents of the returns themselves are now available in public domain!

The best decision I have received from an IC is that of Annapurna Dixit of the Central Information Commission in an appeal, No CIC/OK/A/2008/00766-AD. Through the application I had submitted on 1/10/2007 I had sought information on the railway over bridges being constructed in the original Palakkad Division of the Southern Railways. The original Palakkad Division had been divided into Palakkad and Salem divisions and the application was submitted to the PIO, Palakkad Division. Suffice to say that the information was not provided in time and quite a bit of it was provided on 25/5/2009 just one day before the hearing on the 2nd appeal, through video conference, scheduled for 26 May 2009. The IC while ordering provision of the remaining information and issuing notice to the PIO on imposing penalty also directed the public authority to pay a compensation of Rs 1000/- stating as much as ‘ It is the Commission’s considered opinion that ‘public interest’ is central to democracy and the nature of government itself and that the Appellant has suffered detriment in pursuit of an important issue in the interest of ‘general welfare’ and ‘common well being’ in terms of physical and mental harassment which he had to undergo and also of expenses incurred by him on stationery and on secretarial assistance.’ But by an adjunct, dated 16 Jun 2009, to this decision the IC imposed a penalty of only Rs 7000/- taking into consideration the period from her decision (dated 19/5/2009, but please do not ask me how the decision was published on 19/5/2009 when the 1st hearing itself had been conducted on 25/5/2009) to 16/6/2009 (the date of hearing on the notice for imposing penalty and confirming compliance with her earlier decision) though the delay had to be calculated from 9/11/2007 (40 days from the date of submission of application including 5 days for transfer and 5 days for transit.) More details of this case is available at

After four years I sought an update on the information provided on 12/6/2009, based on the decision of Annapurna Dixit. The application was submitted on 19/9/13 and on not getting any reply the 1st appeal was submitted on 18/11/13. Again there was no response and the 2nd appeal was submitted on 19/01/2014. Vijai Sharma, the then CIC decided the appeal, No.CIC/VS/ A/2014/000322, on 8/7/15. The decision was shockingly wrong right from recording of the facts to the deductions and the decision. He had wrongly recorded that the CPIO had responded on 4/10/2013. He had completely overlooked the information sought in para 2 of the application- Please provide the status as on 31 Aug 2013 for all the ROB/RUB in that list. (The reference of the list was given in para 1 as Ref your letter No W351/1/1/CN/P1/117 dated 12/6/2009). Even the information sought in para 3 – additional details about the RoB at ser 76 of the list-had not been provided to me but the CIC was just informed that the RoB was opened and tough that was not, repeat not, the information sought, he presumes it to be complete and end of the issue(s). He also failed to take cognizance of the information sought at para 4 of the application-about additional RoBs/RuBs-sanctioned after the earlier information was provided. At least to my mind this CIC should not have been employed even as a Class IV employee in any government office. For more details see my blog at

It is not only Vijay Sharma and the above case that established the fact that the ICs do not even go through the complaint/appeal submitted by the citizens through pain staking effort.

Shailesh Gandhi was a rare case of an RTI activist getting appointed as an IC with the Central Information Commission and he is credited with a few good decisions besides raising the benchmark for disposal of cases. One of his most important decisions was in the matter of Sec of 6(3) of RTI Act mandating PIOs, who do not have all the information sought, to forward the application to the PIOs of such public authorities who hold those information. However the language used in the Act being singular the PIOs were taking advantage of it to deny information sought. And the Department of Personnel and Training, the nodal department of the Government of India for implementing the law, had aggravated the problem by issuing an Office Memorandum, No F 1O/2/2008-lR dated 24 Sep 2010 directing, in effect, to bury Sec 6(3) of the law.  Shailesh Gandhi while deciding Appeal No CIC/SM/A/2011/000278/SG on 16 Jun 2011 has quoted the General Clauses Act and enough case laws of the apex court to clarify that Sec 6(3) has to be applied even in cases where the application will have to be transferred to more than one other public authority. But even he floundered when deciding an appeal against the PIO of the Central Information Commission itself, who had failed to provide info on the action taken and status of 4 appeals pending with the Commission for almost a year. He just proved the truism in Schopenhauer's Law of Entropy which states that ‘If you put a spoonful of wine in a barrel full of sewage you get sewage.’ For more details please visit the blog

In the above case, of the 4 appeals whose status was sought, two had been submitted under a proper covering letter indicating that there were two appeals and both pertained to the State Bank of India. While one of the appeals was decided by the then CIC, A N Tiwari, on 8/12/2010, the other has not been disposed of till now though by the work allotment at Central Information Commission, the same IC should have decided that appeal also at the same time. But that is only if he, or even his subordinates, had at least browsed through the pages of the documents submitted!

The judiciary never needed a law like the RTI Act to get exposed as a failed and corrupt institution. But how it has tried to subvert the RTI Act by introducing exorbitant fee/cost  and even introducing a fee for 1st appeal has been dealt with in Part 2 of this series. While some corrections have been made to those, one sore point that is persisting is the exemption of the judicial part of the court functions from the purview of the RTI Act. In fact even copies of court orders are denied on the specious ground that they are part of the judicial proceedings. In a particular petition I had filed with the High Court of Kerala when the order was delivered almost after 3 years, it simply stated that the matter had been decided in OP 31427/2000 and hence this petition is dismissed. When I sought a copy of the decision in OP 31427/2000 it was simply rejected because it is part of judicial proceedings!

In another important case, involving the decision of the Kerala High Court holding bandhs illegal, and which decision was upheld by the apex court also, I sought copies of these orders from the Home Department of the Govt of Kerala. It again got transferred to various other departments, including Law, from where it was transferred to the High Court itself. No prize for guessing what was the reply from the PIO of the high court.

At times, some helpful PIO informs that the information (copy of the orders) is on the web site whereas it seems to be hiding from anyone looking for it. The same thing had happened in the case of the orders on bandhs with could only be searched using catch word bandh and the response was ‘no results’. In any case it had been reported in the New Indian Express of 13/1/15 that the Delhi High Court had ruled that RTI Act can be used even if info is available through other means.

Here are a couple of case studies involving our apex court/high courts and the RTI Act.

In what is popularly known as Namit Sharma case, a single bench of Swatantar Kumar of the apex court, on 13/9/2012, wanted the information commissions to work in benches with one of them being a judicial member whose appointment should be made in consultation with the CJI or CJ of the respective high courts! (Remember how the apex court institutionalized the Collegium by giving a new meaning to the simple term ‘consultation’ used in Article 124 of the Constitution?). Thanks to opposition from all possible quarters this part of the order was stayed by a division bench of A K Patnaik and A K Sikri on 16/4/2013. But till then, presumably, the information commissioners and their staff should have had a long holiday at the tax payers’ cost. Further, on 3/9/2013, the same division bench, quoting Order XL of Supreme Court Rules 1966, recalled the original judgment stating ‘this Court can review its judgment or order on the ground of error apparent on the face of record and on an application for review can reverse or modify its decision on the ground of mistake of law or fact. As the judgment under review suffers from mistake of law, we allow the Review Petitions, recall the directions and declarations in the judgment under review and dispose of Writ Petition (C) No. 210 of 2012’.

We also have an interesting case in Writ Petition No. 478 of 2008 and Writ Petition No. 237 of 2011 decided together by a division bench of D.G. Karnik and F.M. Reis of the High Court of Mumbai at Goa on 14 Nov 2011. The argument of the petitioners in both the cases was that the Governor of Goa was not a public authority. Thankfully both the Goa State Information Commission and the High Court ruled this out. But two conclusions of the high court are interesting: one, the relationship between the President of India and the Governor of a State is not fiduciary and two, the State Information Commission has to be a multi-member body consisting of the State Chief Information Commissioner and at least one (but not exceeding ten) State Information Commissioner/s. The State Information Commission cannot function only with one member.

So much for the rule of law and the whimsical decisions of our honorable judges!  




Why should a criminal be afraid of the crime being detected, investigated, and prosecuted in a country where the entire justice apparatus has fallen?
-Asian Human Rights Commission Slams India’s Scofflaw Officialdom         Oct 19, 2012

“There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.”- Montesquieu, The Spirit of the Laws

Of necessity this part has to begin with Palat Mohandas, the 1st Chief information Commissioner (CIC) of Kerala State Information Commission (KSIC) because the manipulations started with his initial appointment itself as CIC. He was the Chief Secretary to the Government of Kerala when the Right to Information Act (RTI Act) came into force on 15 Jun 2005. The law had provided for suo moto disclosures, appointment of information commissioners and notification of the rules within 120 days of the law coming into effect, that is, by 12 Oct 2005. In his eagerness to grab the post for himself, forgetting that he was due to retire only towards the end of the year and dumping Sec 15(6) of the RTI Act, he got himself appointed as the 1st CIC of the KSIC. It was then that the threat arose of the matter being taken to court on the ground of violation of Sec 15(6) which mandated that the IC could not hold any other office of profit. That appointment was cancelled. But the implementation of the Act was held in limbo till 19 Dec 2005 when the KSIC was constituted through a Gazette Notification! The notification provided for the CIC and five ICs of which the CIC and one IC were appointed with effect from 21 Dec 2005. No prize for guessing who the CIC was! The appointment of the other ICs was left to the new government that was to be sworn in May 2006. This was in keeping with the bonhomie that prevails between the political parties, irrespective of the colour of their flags and whatever they do to impress the public otherwise!

Now as per two tables giving the number of complaints/appeals registered and disposed of as on 31/12/2006 and 22/01/2007, the total complaint/appeals disposed from Jan to Dec 2006 was 120/50 and from Jan 2006 to 22 Jan 2007 was 123/52.That is, there are only 3 additional complaints and 2 additional appeals disposed of during the period 1/1/2007 to 22/01/2007. The three additional complaints disposed of are one each of Jun, Aug and Sept 2006 and the 2 additional appeals are of Oct and Nov, 2006. There are two issues that are required to be highlighted here: One, in Jan 2007 there were 4 information commissioners, including the CIC posted in the Commission and two, the cases, whether complaints or appeals, are not being disposed off on first come first served basis. Of course for 2006, it works out to about 45 complaints/appeals per IC (including the CIC). And that works out to approximately Rs 80,000/- per complaint/appeal disposed, presuming an expenditure of Rs 1.5 crores. (The exact figures are not available for that year but the expenditure was Rs.116.18 lakhs and Rs.265.44 lakhs for the financial years 2007-08 and 2010-11 respectively.) Apart from the arbitrary manner of disposal of cases, the failure of the law makers to prescribe a time limit for disposal of each case by the ICs is also a matter that should agitate the sovereign entities of this democracy, its people!
That the quasi judicial organizations are constituted and tasked in such a manner that they merely turn out to be rehabilitation centers for the chosen bureaucrats to enjoy life in gay abandon at tax payers’ cost should be an open secret. The information commissions are no exceptions. Here are some instances to prove this. Straight from the horse’s mouth!

The CIC along with other ICs of the KSIC had conducted a sitting at Palakkad on 19/2/2007. The number of cases (complaints/appeals) heard: only 5! Hearing was conducted behind closed doors with only the parties of each case being present in their turn. This was followed by a press conference addressed by the CIC and attended by the other ICs too. And in less than two hours all of them were free to enjoy their visit to Palakkad with its tourist spots like the Malampuzha Dam, Rock Garden and Tipu Sultan’s fort! I was naturally agitated since a few of my own appeals had been pending with the Commission and there had been no response from them! So I submitted an application to the PIO of KSIC seeking information on the details, including the dates of filing of the complaints and appeals considered by the Commission during its sitting at Palakkad, the details of other complaints and appeals, from Palakkad, pending with the Commission and the cost to the exchequer for the hearing conducted at Palakkad. Needless to say not even the dates of filing of the complaints/ appeals taken up for hearing at Palakkad were provided by the PIO! The FAA corrected that mistake and my worst fears got confirmed- the complaints/appeals taken up for hearing were filed between 14/8/2006 and 16/10/2006 whereas one of my own appeals of 17/7/2006 had not been taken up for the hearing! Obviously the KSIC was not taking up the cases on first come first served basis when there was no reason why any case should be taken up for disposal out of turn! But even the FAA did not provide the info about cost!

One fall out of the above pursuit of information was that the KSIC issued a letter on 5/10/2007 addressed to the PIO, Office of the RDO, Palakkad directing not to accept any petitions under the RTI Act from anybody but request them to send them to the public authorities directly. This is in clear violation of Sec 5 of the RTI Act and also the clear directions issued by the competent authority through two circulars dated 30/10/2006.

Application to get a copy of the file notings leading to the issue of this letter has proved futile. In fact, periodic applications under the RTI Act to get the status of specific appeals submitted and pending with the Commission had also been futile except in one case when the PIO provided the shocking information that appeals could also go missing from the Commission.

Now, it is logical that one submits the copies of the application, response of the PIO, first appeal and the response of the FAA along with the 2nd appeal to the information commission. But when the 2nd appeal is against the PIO/FAA of the Commission itself, is there a need to resubmit copies of these documents which are already with the Commission? Nobody in his sense can deny that it would be a mere wastage of stationary and nothing more. But yes, the KSIC will dismiss the appeal on that ground also!

And here are two typical responses from the PIO of the KSIC to certain information sought:

Application dated 21/5/15: How many cases are pending in the courts, as on 30 Apr 2015, against the decisions of the information commissioners? Provide details to include the address of the court, case number, the KSIC File and appeal numbers, the name of the appellant, the date of decision, penalty/administrative action imposed/recommended, the name of the PIO/FAA who has approached the court, his/her designation and the address of the public authority, present status.

Response of the PIO, dated 3/6/15: A suit register is maintained in state Information Commission. Information as sought by you is not consolidated and maintained.

The points to be noted here are: one, the KSIC would be the 1st respondent in any appeal against the order of the Commission; second, the penalty is imposed on the defaulting PIO and he has to pay the penalty in his individual capacity. As per a report in the media the High Court of Punjab and Haryana had given a ruling that if the Public Information Officer (PlO) of a department has been penalised by a State Information Commission on account of withholding information the officer cannot appeal against the order through the state. The court has held that the PIO will have to approach the court in personal capacity.

Application dated 30/11/15: Provide an example of the pay order mentioned in 3(2)(d) and 4(3) of Kerala Right to Information (Regulation of Fee and Cost Rules), 2006.

Response of the PIO, dated 15/12/15: The inforamtion sought by you doesn’t come under Sec 2(f) of the RTI Act.(!)

The point to note here is that the public authorities in Kerala have not been accepting the Indian Postal Order, which is a Pay Order and the Commission has not been acting on the complaints in this regard. Hence the clarification sought from them.

Application dated 30/11/15: The list of the 5 oldest complaints/2nd appeals pending with each information commissioner as on 30 Nov 2015. Provide details to include the appeal numbers, date of filing the appeal, the name of the appellant, the public authority involved.

Response of the PIO, dated 15/12/15: Information has not being maintained and kept in this public authority as pointed out in this manner.

Point to note here is that the watchdog of transparency doesn’t track the progress of its own primary task! Another associated issue is that though the info was not asked in any prescribed format the public authority was bound to give it in any format prescribed by the applicant because Sec 7(9) of the RTI Act provides that ‘An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question.’

Palat Mohandas, CIC, had also earned notoriety by even deciding that the office of the Finance Minister (and by logical extension any other minister too) of Kerala is not a public authority! (Refer proceedings of the SIC in Complaint CP No. 882/2007/SIC dated 31/3/2008). His decision, dated 21/12/2007, in AP 452/2007/SIC is another one of that genre exposing the stupidity (or is it arrogance?) of public servants appointed to important public offices and at exorbitant cost to the exchequer. Part of this, about fees paid through court fee stamp and cost paid through treasury, as per the then valid rules, being deemed not paid, has been discussed earlier in Part 2. One more issue that needs to be highlighted here is the interpretation of Sec 5(2) of the RTI Act which mandates that ‘every public authority shall designate an officer, within one hundred days of the enactment of this Act, at each sub-divisional level or other sub-district level as a Central Assistant Public Information Officer or a State Assistant Public Information Officer, as the case may be, to receive the applications for information or appeals under this Act for forwarding the same forthwith to the Central Public Information Officer or the State Public Information Officer or senior officer specified under sub-section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be .’ Now, there is no doubt that even a Village Office is a public authority. The question then arises:  can the Village Office designate an APIO at all the sub divisional levels? No! So the first part of the interpretation has to be that every public authority at each sub divisional level should designate an APIO. Next is, the law does not limit the task of these APIOs to accepting applications and 1st appeals pertaining to that public authority only. That is, they are implicitly required to accept applications and appeals to any public authority. Now, while wording the clause one more transaction had been left out, that is payment of the cost of information. It is only in the spirit of the law that this is also collected by the APIO and processed correctly. But when the aim of the public servants is to delay, deny and frustrate the information seeker does these logic and ‘spirit’ of the law matter?

On 18 Dec 2007 the CIC had come to Palakkad to participate in a function at the Palakkad Municipal Town Hall Annex. 13 activists, including retired professors, representatives of consumer rights organizations and farmers' organizations staged a peaceful protest outside the venue, holding banners with slogans like ‘Save RTI-Sack CIC’. But they were all arrested and falsely implicated in a criminal case at the behest of the CIC. The case was finally over in Dec 2009 with all the activists being acquitted in spite of the efforts of the police to rope in the gardener and security guard of the premises to provide false testimonies!

Now if the CIC could be so treacherous, the less said about his colleagues the better! And, for the record, none of their successors have been any better!

Copies of a detailed complaint submitted to the Governor, Kerala, on 7/11/2007, is available at and another one submitted to the Chief Minister, on 22/11/2011, is at

On following up the latter persistently, a letter was received from the General Administration Department stating that the complaint had been forwarded to the Secretary KSIC for necessary action as the Commission being a Constitutional body (now what is that?) the government could not interfere in its functions! This, no doubt, was criminal abdication of responsibility because Sec 27(2)(e) and (f) of the RTI Act clearly empowers the appropriate government to make rules to provide for the procedure to be adopted by the Commissions for deciding appeals and also any other matter which is required to be, or may be, prescribed! It may also be recollected that in UP the CIC, M A Khan, who had been a former high court judge, was removed by the then government headed by Mayavati. 




The Right to Information Act is the only citizen friendly and pro democracy law in India as on date. It is simple, clear and unambiguous, as any law should be so that those affected by the law understand it and follow it and those who are required to enforce the law also enforce it fairly and fearlessly. Unfortunately, a decade plus down the line, since the law was enacted in 2005, this law provides an eloquent case study for how even such a simple law can be subverted and with impunity by our public servants.

In the first part of this series an attempt was made to have a bird’s eye view of the strong points of the law. Here the effort is to analyze the clauses that have been exploited as loop holes. But whether they are deliberate or unintentional cannot be judged because the way it has been implemented some look like loopholes left deliberately and some unintentional.

Vagueness is not an attribute that gels with good laws.  The RTI Act suffers from this malady at a few places. The first such occurrence is at Sec 2(h)(d) where under the definition of public authority the term ‘substantially’ financed is used in the cases of certain organizations, including NGOs, which are owned, controlled or financed (directly or indirectly) by the government. There are a large number of cases where educational institutions, co operative societies and even airport operators have argued that they do not come under the purview of the Act and the question of substantially financed had been the ground of contention. Unfortunately the standards have still not been prescribed. One thumb rule set out by the apex court is the answer to the question whether the survival of the entity would itself be at stake if denied the financial support from the government. However, as per a report in the Mathrubhumi daily of 18 Jan 2015, activists in Kerala were agitating about a single bench decision of the Kerala High Court that government aided private schools would not come under the purview of the law for transparency! (For the less informed, the salary of the teachers are paid by the government in these ‘aided’ schools!)

The other glitch is more substantial. It’s got to do with the delegation of rule making powers to state governments and even to the chief justices of the supreme court and high courts, through the definition of competent authority in Sec 2(e) and prescription of powers to make rules in Sec 28. Though it is more in keeping with the federal nature of our governance, in retrospect it definitely looks unwarranted because it has been one of the most abused provisions of the law. The worse thing is it all began with the courts! Two things need to be highlighted here. One, while the Central Government and almost all the state governments prescribed an application fee of Rs 10/- and Rs 2/- as the cost of an A4 size page of information (here I have made a distinction between fee and cost for the amount paid with the application and the amount paid for information provided though the term fee is used commonly in both the Act and the Rules), the courts prescribed an application fee of Rs 500/- and Rs 5 per page of info. Adding insult to injury, the courts also introduced a fee for the 1st appeal when the 1st appeal itself has been provided merely to help the public authority to undo any deficiencies in the response/actions of their PIO! The simple solution would have been to cap the fee and cost at the rates prescribed by the Central Government!

This glitch has been abused in another way too. And that is the non-standard modes of payment of fees/cost. Typical case is of the Kerala Government making one set of fee/cost and modes of payment applicable to its departments and another set for others! While cash, court fee stamp, deposit in treasury, demand draft, banker’s cheque or pay order were prescribed for fee and all of them less court fee stamp for cost, for the departments of the government, court fee and deposit in treasury were not applicable for payment of cost for others. But it had not been so initially when the Kerala Right to Information (Regulation of Fee and Cost Rules), 2006 was notified in Extraordinary Gazette No 893 of 18 May 2006. The changes were effected through an amendment to these rules through a notification in the Kerala Gazette No 2290 of 22 Dec 2007! There were two changes that were introduced: one, it made the rates of cost prescribed in its Rules applicable only in cases where ‘no other fee is prescribed’ and two, the modes of payment of cost were restricted to cash and Demand Draft/banker’s cheque/Pay order for public authorities other than government departments!  And in a weird case, Palat Mohandas, 1st Chief information Commissioner of Kerala State Information Commission sitting in a bench with another information commissioner, V V Giry, decided on 21 Dec 2007 that the fee paid through court fee stamp and cost paid through treasury to the Kerala State Pollution Board should be deemed not paid! The treachery may not be evident until it is clarified that the fee was paid with the application on 17 Jul 2006 and the cost was paid on 12 Sep 2006 based on the then valid Rules. The argument of the information commissioners was that the public authority has the prerogative of deciding the mode of payment of fee and cost! That it is the prerogative of the applicant to choose the mode of payment has been reiterated by the commission in many of its subsequent decisions. This case shall be discussed in some more detail later.

The third glitch takes the cake and makes one wonder whether the whole law had been enacted to pull wool over the eyes of the public and essentially create a rehabilitation center for retiring bureaucrats, of the ‘favorite’ kind, to spend another five years of their retired life in gay abandon at the cost of the tax payer! There are three clauses that have contributed to creation of this situation. Firstly, the selection of information commissioners is by a committee comprising the Prime Minister (Chief Minister at State level), the Leader of the Opposition (LoP) in the Lok Sabha (Legislative Assembly for States) and a cabinet minister. Interestingly, the LoP is just a scare crow or a mannequin as the selection need not be unanimous. Next is the qualitative requirements prescribed  by Sec 12(5) and 15(5) for central and state information commissioners respectively-persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance. Nothing is wrong there, apparently. But, as they say, the devil lies in the details. The politicians being familiar mostly, if not only, with their bureaucrats and the short listing being done by these very same bureaucrats, it was only to be expected that most of the appointments as information commissioners would be taken away by this class, forgetting the fact that this is a class that should have been barred from such appointments due to ‘vested interests’. Situations where they could be called upon to disclose their own controversial records could not be ruled out and in such cases subversion of the law was only to be expected. And not to mention the fraternity spirit that had driven them during their days in office! And lastly, is the equation of CICs and ICs with Chief Election Commissioner/Election Commissioner/Chief Secretary to the State Government making it such a lucrative position that retiring bureaucrats would fall over one another to grab it. And it is this provision that actually leaves no room for doubt that these commissions have been constituted to rehabilitate retiring bureaucrats. This needs to be analysed in a little more depth.

If I say the job of an information commissioner is simpler than that of a munsif that would be an understatement. As has been brought out earlier, this is a standalone law and if there is any conflict with any other law this is the law that would prevail. So the information commissioners need know nothing more than this law and the rules made under it by the competent authority. Next, is the procedure required to be followed by the information commissioner for taking the final decision.  And that too is so simple that one may rightly ask why the government is spending so extravagantly on the pay and perks of these quasi judicial authorities! The complaints are so simple that they can be disposed off with a cursory look. So let us take the case of appeals. Copies of the application, reply by the PIO, first appeal, reply by the FAA all form part of the documents submitted as the 2nd and final appeal. Of relevance are only the application and the reply from the PIO. A simple reading of the application should suffice to decide what all information sought needed to be disclosed. Going through the reply by the PIO would then establish if these information had been provided or not and if provided whether it was within the prescribed time frame or not. If not provided completely or provided with delay, the reason has to be ascertained from the PIO. And this reason has to be a legally valid one and not something irrelevant like the originally designated PIO being on leave or the file being with a superior authority etc.  And there is the decision staring you in the face! But it is this simple procedure that has been turned into something that is preposterously illogical and illegal too.

What is happening is that after months, if not years, of receipt of the appeal the information commissioner decides to conduct a hearing with anybody from the public authority and the appellant or his representative, which is both unwarranted and illegal. Unwarranted, because, the lapses of the PIO is and has to be absolutely clear by a simple perusal of the application and his reply, as explained earlier. Illegal because, once the default has been established it is necessary to penalize the defaulter, and as demanded by natural justice, only such defaulter has to be given an opportunity to being heard before the penalty is imposed. So conducting a hearing with anybody else from the public authority is only a waste of time and resources, at the cost of the tax payer! This is because the public servants from the public authority obviously participate in it and claim allowances as applicable while the appellant obviously does it at his own cost! And, often the notice period do not even provide for the time required to arrange the move! (In one of my own cases, the Central Information Commission ordered the Commission itself to compensate me for my move to a Video Conferencing facility in a neighbouring district after the respondent public authority (in this case the Delhi High Court) failed to send their representatives for the hearing citing lack of adequate notice!)

What follows after this hearing is even worse! After this ‘preliminary’ hearing even when the IC would direct the PIO attending the hearing to provide the information sought, there would be a direction for a further hearing with the ‘original’ PIO to decide why mandated penalty should not be imposed! And, again, quite illegally, no notice of this hearing is given to the appellant nor are the reasons given by the PIO and the decision of the IC communicated to the appellant! Just imagine a court declaring an accused person as guilty in open court and then the judge having a closed door meeting with the (now) ‘convicted’ person and thereafter nobody ever knows what happened to the final punishment! As an activist working in this area I have openly been exposing this as an opportunity for corruption wherein the IC can seek and collect a bribe from the PIO and this amount can even be more than the maximum penalty that could be imposed under the law and it could depend on the vulnerability of the PIO who may be in a promotion zone and would not like to spoil his record through an official punishment!

Though this list of glitches cannot be deemed complete, for the purpose of this part of the exposures, what I would include as the last but not the least important ‘glitch’ is the provision for the removal of the ICs. Strictly speaking they cannot be considered to be glitches because they have more to do with the competence of the President of India and the Governors of the States who have been empowered to remove the ICs even if ‘in their opinion’ they are unfit to continue in office by reason of infirmity of mind or body (Secs 14(3)(d) of the RTI Act applies to the President to remove the ICs of the Central Information Commission and  17(3)(d) for the Governors in the States to remove the ICs of the respective State Information Commissions.) These provisions are in keeping with the logical empowerment of the appointing authorities to remove the appointees for proven incompetence/unsatisfactory performance and reflect the coming of age of our law makers burdened with an undemocratic, illogical and impractical impeachment procedure for removing incompetent judges or judges with questionable integrity. But sad to say, even with such simple and straight forward provisions in the law, the law continues to be subverted with impunity speaks volumes of the incompetence of the authorities empowered to use them. As a fact on record, in it’s almost 13 years of existence only one information commissioner has been removed and that was the Chief Information Commissioner of Uttar Pradesh-Justice M A Khan- when Ms Mayawati had been the Chief Minister! (And it had been reported in the media that he had committed suicide within a year of that removal!) In Kerala, an IC, K Natarajan, who had been a DIG earlier with the Kerala Police, was accused of trying to influence an investigation in a criminal case and was kept away from official work for nearly half of his tenure, all the while enjoying the perks of his office at the tax payers’ cost, of course!

Sec 217, 218 and 219 of the Indian Penal Code provide for prosecuting public servants who falsify records and disobey the law. In the case of ICs, to whom Sec 219 applies, the punishment could be as much as seven years rigorous imprisonment or fine or both!

In the next part we shall see some cases that will reveal how preposterously, blatantly and with impunity, this law has been subverted by the very authorities tasked, empowered, equipped and paid to enforce it!




Save Right to Information Campaign-Mission Statement:

Save right to information. Use Right to Information Act.
Get information or......
Expose at least three idiots/traitors* amoung public servants!
1. The Public Information Officer
2. The First Appellate Authority (and the Head of the Public Authority, where the head of the public authority is not the FAA!) and
3. The Information Commissioner

* An idiot is one who does not know the job s/he is getting paid to do and a traitor is one who knows it but does not do it!

The Right to Information Act is the only citizen friendly and pro democracy law in India as on date. It is simple, clear and unambiguous, as any law should be so that those affected by the law understand it and follow it and those who are required to enforce the law also enforce it fairly and fearlessly. Unfortunately, a decade plus down the line, since the law was enacted in 2005, this law provides an eloquent case study for how even such a simple law can be subverted and with impunity by our public servants.

Firstly, let us analyze what are the strong points of this law.

The purpose of this law, as stated in its preamble, is:

whereas democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;

And whereas revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information;

And whereas it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal;

Now, therefore, it is expedient to provide for furnishing certain information to citizens who desire to have it.

And, no doubt, there can be no doubt on the aim. It is as clear as clear can be!

The next is, the law has identified certain information that the law makers have identified as would be of common interest to all its citizens and has provided for public authorities to disclose them pro actively. That is there is no need for citizens to apply for them or get them on payment of prescribed cost. This information is required to be disseminated through all possible means at the disposal of the public authority, right from collecting them in a file and retaining it with a designated public servant to enable members of the public to refer it whenever they choose to, to publishing them on their websites. This information, listed under 12 subparagraphs under Sec 4(1)(b)  of the Act, includes the organization structure, tasking of employees, records maintained by each one of them, their pay and allowances etc and was required to be published within 120 days of the enactment of the Act, that is from 15 Jun 2005! For ease of understanding, it is necessary to state here that none of the public authorities have complied with this requirement till date, except the Central Information Commission. Obviously, there could be more exceptions that I have not come across but this assertion is based on a sufficiently large number of websites of public authorities browsed, right from the website of the President of India to the Kerala State Road Transport Corporation and Palakkad Municipality.

Taking cognizance of the tendency of our ‘public servants’ to send the public on wild goose chases, the law makers have also provided two important clauses, Sec 5(2) and 6(3). The former mandates designation of Assistant Public Information Officers at all public authorities at sub divisional level to accept applications and appeals from the public and forward them to the concerned Public Information Officer(PIO), First Appellate Authority (FAA) and the Information Commission (IC) as the case may be. The latter, that is Sec 6(3), mandates that the Public Information Officers who receive the applications, if they do not have the information sought, either partly or completely, they have to forward the application(s) to the Public Information Officer of that public authority who has the information, to provide that missing part. The most important point about this clause is that there is no limit on the number of public authorities to whom this application has to be transferred because as per Sec 13 of the General Clauses Act, 1897 (still in vogue!) singular also implies plural. This has been amply clarified by Shailesh Gandhi, information Commissioner with the Central Information Commission, in his decision in Appeal No CIC/SM/A/2011/000278/SG dated 16 Jun 2011. He has also quoted sufficient number of case laws from high courts and even the Supreme Court to reinforce it. But sad to say even the current Chief Information Commissioner of the Kerala State Information Commission and former Director General of Police, Vinson M Paul, has been going around telling PIOs that they need to provide only information held with them and for information not held with them they should tell the applicant to apply to concerned public authorities separately! On providing a copy of the Shailesh Gandhi’s decision of 16 Jun 2011, his first response was that the decisions of the Central Information Commission were not applicable to him and on querying about the apex court judgments quoted therein, he had no answer! But the fact remains the law stands subverted by the Chief Information Commissioner himself in Kerala. (To be true to him, he is not the only information commissioner to subvert it. More on this, later.)

The third important provision of the law is Sec 19. It provides for a complaint against non receipt of any decision from the PIO or first appeal against the decision of the PIO to an authority superior to the PIO, designated as the FAA and a final appeal to the IC. And as per Sec 19(5), in all appeal proceedings the onus to prove that a denial of a request was justified shall be on the PIO who denied the request. This Section, 19, also provides for the information commission to compensate the complainant for any loss or other detriment suffered(Sec 19(8)(b)) and also to impose any of the penalties provided under this Act (Sec 19(8)(c)). The failure to comply with these provisions of the law has, needless to say, totally subverted it. Also, the failure to impose the mandated penalties has caused considerable loss to the exchequer. This scam, let us call it RTIgate, has not only subverted the law, caused heavy loss to the exchequer but also given another avenue for corruption which the law was intended to curb! The how of it shall be explained later. For now it will suffice to say that RTIgate could be a scam bigger than 2G, Coalgate and Vadragate put together!

The tooth of the Act is in Sec 20 which mandates that a penalty of Rs 250/- per day of delay be imposed on the defaulting PIO. This is subject to a maximum of Rs 25000/-. That is, if the PIO, who is required to provide the information within 30 days of receipt of the application, does not provide it within that period, any period after that, till the complete information he has is provided is counted as delay. And if this delay is 100 days or more he has to be penalized with the highest amount permitted, that is Rs 25,000/-. It is only to help him avoid being penalized to the maximum extent that a FAA has been designated to consider a complaint or first appeal against the PIO and take corrective action where required. But unfortunately, in most of the cases, the FAAs are merely seen parroting the words of the PIO, or defending them irrationally, leading to an appeal with the information commission and the delay extending to more than 100 days.

Sec 20 (1) of the RTI Act, states as follows:

Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees:

Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him:

Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be.

I have added the emphasis to highlight the three important components of this Section. One, the reasons for the default are independent of each other and the defaulting PIO can be penalized for default on any one of the grounds listed. That is a PIO can even be penalized only for the mere delay in providing the information sought. High Court of Punjab and Haryana, in its decision dated 8 Feb 2008 in C.W.P. NO. 1924 OF 2008 has clarified this as stated below.

A plain reading of sub-section (1) of Section 20 of the Act makes it obvious that the Commission could impose the penalty for the simple reasons of delay in furnishing the information within the period specified by sub-section (1) of Section 7 of the Act. According to sub-section (1) of Section 7 of the Act, a period of 30 days has been provided for furnishing of information. If theinformation is not furnished within the time specified by sub-section (1) of Section 7 of the Act then under sub-section (1) of Section 20 of the Act, public authorities failing in furnishing the requisite information could be penalised.

Two, if any one of the reasons for the default has been established the information commission has to mandatorily impose the penalty (see the term used is shall and not may!) at the prescribed rates. Now the question arises that if there is factual delay, as evident from the data on record, can the information commission have an opinion that there has been no delay? And, in the opinion of the information commission, can there be any reasonable ground for the PIO to not accept an application? Absolutely no, never! (Please recollect Sec 6(3) of the Act which mandates that the PIO shall transfer the application or such part of it as may be appropriate to that public authority, which is holding that information!)

The third component is the opportunity to being heard to be given to the defaulting PIO before imposing the mandated penalty. Here again there are two factors to be considered:

(a)    The sequence of events. That is, the information commission has to establish the default, the reason for the default and the scope for imposing the mandated penalty before the need arises to give the opportunity to being heard to the defaulter. This obviously can be done by just a cursory study of the documents on record as they are related to the date of receipt of application by the public authority and the date of reply by the PIO and the contents of that reply.
(b)   The nature of hearing. Nowhere does the clause mention that the hearing has to be personal and one to one (between the information commissioner and the PIO). It could as well be a legally valid affidavit taken on record. This is important because calling defaulting PIOs for hearing, even through video conferencing, is a time consuming and costly affair and both these are at the cost of the exchequer for the PIOs and avoidable for the appellant. Incidentally, even when the law mandates opportunity to being heard be given to the defaulting PIO only, information commissions can be seen calling PIOs and FAAs or even their representatives for an initial hearing and then, in rare cases, calling for explanations from the original defaulting PIO for not penalizing!

A corollary to the third component is the provision that the burden of proving that he acted reasonably and diligently shall be on the Public Information Officer. This is of course only a reiteration of Sec 19(5) of the RTI Act. While Sec 19(5) simply states that the onus to prove that a denial of a request was justified shall be on the PIO, this proviso to Sec 20(1) makes it mandatory for the PIO to prove that he had acted reasonably and diligently too.

The next strong point of this law is that it has over riding effect over other laws (Sec 22). That is no other law can be quoted to undo the purpose of this law and its implementation. Even in the case of intelligence and security organizations which are exempted from this law, Sec 24 of this law states that in matters of human rights violations and corruption, available information has to be disclosed; and in the matter of human rights violations permission from the information commission has to be taken before disclosing such information and to cater for it an additional 15 days have been provided for providing such information.

Overall this is as good a law as could be legislated, given our inheritance of a colonial administration and judiciary that have withstood reforms for over half a century even after adoption of a democratic and republican form of government. There are a few short comings but whether they are deliberate or unintentional cannot be judged because the way it has been implemented some look like loopholes left deliberately and some unintentional. Details in the next part….!