SIX YEARS OF THE RIGHT TO INFORMATION ACT
It is 6 years since the RTIA has come into force. While there have been a few notable gains and 12 activists who have used the law to unearth major scams have been brutally killed, the question remains how such a simple, straight forward and unambiguous law could be so badly distorted and practically put on ventilator within just 6 years!
Among the major gains is the revelation of how the judiciary treats law. The then Chief Justice of India K G Balakrishnan had written to the Prime Minister to exempt judges from the purview of the RTI Act but had not been obliged. So he did the next best thing- abused his authority and held his own office to be out of purview of the said law! Even after the transparency watchdog- the Central Information Commission- had held that his decision was illegal, the apex court went on appeal to the Delhi High Court. By itself it has to be seen as a ridiculous act for two reasons- firstly, the idea of the apex court going on appeal to a subordinate court is itself making a mockery of the judicial process, if not a ludicrous attempt to pull wool over the eyes of the public. Next, Sec 23 of the RTIA explicitly states that ‘No court shall entertain any suit, application or other proceeding in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal under this Act.’ Of course, that implies that courts can intervene only in cases where the procedure followed under the new law had been flawed. But such was not the case here. But thankfully, the Delhi High Court- both, a single judge and a division bench-held the contention of the Chief Justice of India to be wrong! And now we have the absolutely untenable case of a party judging its own case-the apex court has appealed to itself against the order of the division bench of the Delhi High Court! If this is the case with such a simple law, then the fate of Lokpal, having jurisdiction over the judiciary, can only remain a mirage!
Apart from K G Balakrishnan’s effort to subvert the law, the judiciary has also cocked a snook at the law by misusing the powers of the ‘competent authority’ to hike the fees and cost and even introduce fees which are totally unwarranted. While the application fee prescribed by the central and state governments is just Rs 10/- , the Delhi High Court actually made it Rs 500/- which was subsequently reduced to Rs 50/-! The cost of information on an A4 size paper is Rs 2/- but for the courts it is Rs 5/-! While the 1st appeal is just an additional opportunity given to the public authority to correct the mistakes of its public information officer and no fee or cost is warranted, the Kerala High Court at least has introduced a fee of Rs 50/-! And yes, the tallest of all claims- that every thing happens in open court and is totally transparent- also stands shattered by the very fact that even an application to provide a copy of an order quoted in one of its orders was rejected by the Kerala High Court! The RTIA has thus proved beyond an iota of doubt how their claim ‘be you ever so high, the law is above you’ actually meant ‘be you ever so high, we (the judges) are above you and all the laws that apply to you’.
By law, the last word on the RTIA is that of the information commissioner. And when the Act completes six years there is enough ground to charge each of them for breach of trust and oath of office if not outright treason. The law certainly has a few deficiencies- for example, the definition of competent authorities and the power vested in them to frame rules for the implementation of the Act is something that could have been done away with- but ambiguity is certainly not one of them. The law is so simple, clear and unambiguous that even a student who has passed his 5th standard can understand it and interpret it correctly. But the response to my 1st complaint/appeal before the central information commission itself proved that the competence, if not the integrity itself, of the information commissioners were questionable. The gist of the incidence is as follows. Save Consumer Courts Action Council, Thiruvananthapuram, had submitted a complaint against the Kerala State Consumer Disputes Redressal Commission to the National Consumer Disputes Redressal Commission. Subsequently I had submitted an application under the RTI Act to enquire into the action taken on the complaint. I got a reply stating that the complaint has to be submitted to the Govt of Kerala. But since it was not any ‘information’ provided and there was no other intimation from the PIO, NCDRC I submitted a complaint to the Central Information Commission. Shockingly, the CIC informed me that the application has been forwarded to the Kerala State Information Commission! When the matter was taken up with the then Central Chief Information Commissioner-all of a retired Secretary to the Govt of India!- after repeated reminders a reply was received that this complaint had also been forwarded to the KSIC!
The job of an Information Commissioner is nothing compared to the job of even a munsif under our judicial system. On receipt of an appeal along with connected documents, the IC can easily decide whether the information sought is disclosable or not; if disclosable, whether there has been any delay or not and If there has been delay how much? Thereafter, as per the RTI Act, there is only a requirement for the IC to direct the PIO to provide the information sought and also issue a notice to the PIO to give reasons for not imposing penalty for the delay. Instead the procedures at the information commissions, especially at the Kerala State Information Commission and the Central Informaton Commission, verge on the absurd and ridiculous and could have been dismissed as such had it not been for the ultimate subversion of the RTI Act itself and deniel of the rights of citizens. For example, both these commissions do not acknowledge the complaints/appeals submitted. The KSIC when it does acknowledge occassionally and after considerable lapse of time will not even have the correct reference of your complaint/appeal. The two liner printed post card says ‘refer your complaint of .............. (date, which is invariably quoted wrong!). It has been assigned file No..............) And then, after almost two years, when you are given a notice for hearing it will have the reference to an appeal number which cannot be linked to your original complaint/appeal! And then not only the PIO but the FAA and the complainant/appellant are also called to the IC’s office for the hearing. While the complainant/appellant travels at his own cost with the agony of travelling without reservation as bonus, the PIO and FAA travels at exhorbitant cost to tax payer with reservation using the quota available for them! And ultimately even when the IC orders the PIO to make the information available the mandatory penalty is not imposed leading to a situation where the RTI Act has now become practically defunct, with the usual exceptions! If the total loss to the exchequer in terms of unwarranted cost incurred for unwarranted moves for hearings and the failure of the ICs to impose mandatory penalites is considered one may be shocked to learn that it would be more than one or even two 2G scams!
While the arbitrary, wayward and malafide manner of selection of the CVC had been exposed in the case of P T Thomas, the process in not any different in the appointment of the ICs also. And information received and/or denied under the RTI Act are documentary evidences of the idiocity, if not outright treason of these ICs. The example of how the CIC treated a complaint against deniel of information by the NCDRC has already been narrated. The case of the KSIC is even worse. The 1st time I submitted an application under the RTI Act to the KSIC itself, it reacted by directing the PIO of a sub divisional office not to accept any applications from me! This, needless to say, was in total violation of Sec 5 of the RTI Act itself! Long before Lokpal was put on centre stage by Anna Hazare, activists like myself had been requesting the Chief Minister of Kerala to set up a cell in his office to monitor the performance of the quasi judicial organisations which are practically worse than the fly by night operators we often hear of!
Apart from the subversion of the law by omission, there have been proactive efforts to dilute the law by the nodal departments themselves. One such effort was the direction by the Dept of Personnel and Training that every complaint/appeal to the Information Commission should be heard by all the Information Commissioners together! In Kerala the General Administration Dept directed that the most convenient forms of paying the fees would be restricted to its departments only and it will have to be paid in cash directly or through DDs to the various boards, commissions etc! Also it introduced a red herring that cost of information would be as laid down unless it has been specified otherwise, prompting may public authorites to demand upto Rs 200/- for even a photostat copy of a sketch in an A4 size page! Elsewhere, there have been efforts to restrict the quantum of information that can be sought in an application and also demands for contempt powers to the ICs and penalty for the applicants! The latest is an office memorandum by the DoPT that has directed the public authorities to flout Sec 6(3) of the RTI Act. While this OM states that it was being issued after consultations with the CIC an application under the RTI Act to the CIC has confirmed that there are no records of any such consultations! Reports appearing in the media also bodes ill for the future of the RTI Act. The government, stung by the various pronouncements of the higher judiciary against it, seems to have decided to follow a path of appeasement by seeking to exempt the CJI from the purview of the RTI Act. (It needs to be reiterated here that though the appeal of the apex court before itself is awaiting disposal, the original cause of the application has been served by the judges deciding to declare their assets themselves!) But to deflect allegations of such blatant appeasement, it has also added the President of India and the Governors of the states to the list of those who cannot be approached for information under the RTI Act!
This report cannot be complete without referring to a couple of best practices seen implemented in Bihar and Maharashtra. In Bihar there are two helplines for RTI- one for getting information about the RTI Act and the other for getting information under the RTI Act. In the latter case the fee is charged alongwith the call charges. The request for information will be taken down by the helpline attendant and forwarded to the correct public authority! In Maharashtra, the ICs have been given charge of clusters of districts and they are located in one of the districts of each cluster making access easy, both for the public and the PIOs/FAAs!
To conclude, it has to be acknowledged that the RTI Act is a success even in its failure because it has exposed the treacherous and anti-national people infesting our offices of governance like never before. Over the years the common man had learnt through personal experience that in the name of governance the people in our offices of authority have been looting public property and compromising public interests. Today, it is impossible for one to jump on to the government‘s bandwagon and brand the maoists and insurgents as anti-social or anti-national elements. We cannot forget that the colonial masters had also branded our first war of independence as a sepoy mutiny and suppressed it with an iron hand. But of course what followed is also part of history and it would be idiotic for those holding the reins of power now to neglect the aspirations of We, the People!