“People
always keep on saying to me, so you are the maker of the Constitution. My
answer is I was a hack. What I was asked to, I did much against my will. I am
quite prepared to say that I shall be the first person to burn it. It does not
suit anybody.”- Dr. B. R. Ambedkar, making a statement in the Rajya Sabha on
2nd September 1953
Ambedkar has been proved wrong, totally wrong, in
these 60 years. The Constitution does suit certain people- the law makers who
think that just because they have been elected by the people they have a right
to make any laws including those that would outright be against public interest
and even antithetical to the very concept of democracy! The law enforcers can distort and contort
these very laws and can get away scot free with all and any of their crimes.
The law interpreters can interpret these laws in the most abominable manner imaginable
and have it in them to even punish those who criticise such interpretations! The only people whom it does not suit are the
very people for whom it is supposed to exist! And here is where the Right to
Information Act (RTI Act, for short), completing seven years on 12 Oct 2012,
has succeeded even in its failure! It has simply exposed how even a simple,
straight forward, unambiguous law can be subverted by the very people who have
enacted it and by those who were responsible to enforce it and also by those
who were responsible to ultimately dispense justice based on the letter and
spirit of our Constitution and the laws enacted there under.
The RTI Act had completed seven years for the public
authorities (as defined in the Act, but who are actually public servants as per the definition of
democracy itself!) on 15 Jun 2012 itself. But the law makers in their wisdom
deemed it necessary to give 120 days for these public authorities to prepare
themselves to receive the first applications for information under this Act! Thus,
for the public it completes seven years only on 12 Oct 2012. But seven years
down the line it can be said with certainty that these public authorities have
done more to subvert the law than abide by it. Today the greatest, if not the
only, success of this law can be seen in the precise identification of those
public servants who have so blatantly subverted it.
There have been three stages to this subversion: one,
right in the enactment itself; two, in the matter of implementing the law and
three, in the matter of enforcement of the law by the information commissions
and courts.
The preamble clearly spells out the purpose of the law
but still it can be seen that some of the competent authorities have abused
their authority to make it difficult for the citizens to seek info. Here,
unfortunately, the charge has been led by none other than the judiciary! While
the chief justices of high courts and the supreme court are competent authorities
to frame the rules for implementing this law in their respective organizations
and are empowered to prescribe the fees to be submitted with the application
and the fees to be collected as cost for providing the information, they have
prescribed exorbitant fees and cost and decimated the scope for seeking
information by a large section of the population. While the standard fees and
cost prescribed by the legislative and executive organs of the Constitution are
Rs 10/- along with the application and
Rs 2/- per A4 size page of information, the Delhi High Court made this
Rs 500/- and Rs 5/- respectively. Though subsequently the application fee has
been reduced to Rs 50/- , the cost per page continues to be Rs 5/-. Most of the
courts have implemented this. While legally they are right, it certainly does
expose the attitude of our judges to the cause of transparency in their
functions. Worse, they have set a bad example for the others also and we now
have states also following suit and introducing Rs 500/- as fees to be
submitted along with the application! In Kerala, the rules were amended to make
the lesser cost of information applicable only in cases where costs have not
been prescribed and a public authority like the District Collector had demanded
Rs 200/- for providing a photostat copy of a sketch on an A4 size paper by
claiming that the cost of the sketch was prescribed as Rs 200/-! Similarly data
that can be given on a CD for Rs 50/- is also now available for Rs 500/- only!
Thus, the introduction of competent authorities with
powers to prescribe different rates of fees. cost etc can be seen as a
shortcoming in the legislation itself that has been disastrous for the
implementation of the law. But the judicial perfidy does not end there. In the
judges’ assets case the claim of the then CJI, K G Balakrishnan, that the
office of the CJI is out of purview of the RTI Act can also be seen as blatant
abuse of authority to subvert the law itself. As anybody can see it, the
definition of public authority does not
exclude the office of the CJI. To that extent, he should have been impeached
for incompetence or breach of oath of office. Thankfully, the ultimate
authority in matters concerning the RTI Act, the information commissioners (a
full bench of them when even a single information commissioner could have given
such a decision as effectively as the full bench!) did hold him wrong and
directed him to provide the information sought by activist Subhash Chandra
Aggarwal of Delhi. But again the information commissioners did not comply with
the law completely and failed to impose the mandated penalty of Rs 25,000/- on
K G Balakrishnan! Now, even after two benches of the Delhi High Court have
ruled against the decision of the CJI, the matter is pending in the apex court
itself for almost two years now!
The provisions (Sec 13(5)(a) and (b) and 16(5)(a) and
(b)) of the RTI Act that equates information commissioners with Chief Election
Commissioner, Election Commissioners and Chief Secretaries of the States for
the purpose of salaries and allowances have also contributed to the law being
subverted in a big way. This has resulted in the office of the information
commissioners being turned into rehabilitation centers for those retired IAS/IPS
officers who had been extra ‘loyal’ to the decision makers during their tour of
duty! Though strictly there is nothing legally wrong with appointing retired
IAS/IPS officers as information commissioners, there is definitely a conflict
of interest when they have to penalize those who have been ‘birds of the same
feather’ while in service! It is pertinent to recapitulate here an experience
with judges and advocates. The Bar Council rule is clear that lawyers can't
appear before their own kin. Binod Kumar Roy, Chief Justice of the Punjab and
Haryana High Court identified a dozen judges whose relatives were advocates and
forbade them from appearing before any of these 12. This ensured that a judge
could not help even a fellow judge's kin. Within a month of this directive, the
SC collegium recommended his transfer to the Patna High Court. (All in the
Family at
www.outlookindia.com/full.asp?fodname=20041108&fname=Judges+%28F%29&sid=1&pn=1)
Further, if you just look at the job content it can
easily be seen that the task of an information commissioner is simpler than
that of a munsif. The RTI Act is a standalone law and wherever there is any
conflict with any other law in force the provisions of the RTI Act will
prevail. Therefore the task of an information commissioner is reduced to
finding answer to three simple questions: one, whether the information sought
is liable to be denied under Sec 8 or 9 of the Act; if not, two, whether the
information sought is available with the public authority to whom the
application has been submitted (if the information sought is not available with
the public authority then its PIO is required to forward it to the public
authority holding such information, under Sec 6(3) of the Act) and lastly, had
the information sought been provided completely within the prescribed period of
30 days? This last question is easily answered by just glossing over the date
of the application and the date of the PIO’s reply. For an average appeal, all
this can be done in 5 minutes flat. Once it is established that the info sought
is required to be provided and it is held with the public authority and it has
not been provided within the prescribed period then the only thing for the
information commissioner to do is to direct the Public Information Officer (PIO)
to provide the complete information sought and report compliance along with show
cause notice as to why s/he should not be penalized as per Sec 20 of the Act.
If the reply to the show cause notice is not satisfactory he should impose the
mandatory penalty @ Rs 250/- per day of delay subject to a maximum of Rs
25,000/-.
So, equating the information commissioners with CEC,
EC or State Chief Secretaries is not only profligacy of the highest order but
also a subterfuge. Worse, the simplicity of the job has not ensured speedy
disposal of appeals. Still more worse, it has also led to fears that the
information commissioners may actually be making hay while the sun shines in
that they could easily demand (and get) from delinquent PIOs as bribes the
amount to be imposed as penalty on them!
After those provisions of the law that seems to have
been provided wittingly or otherwise to subvert it right from the word go, here
are some provisions that have been blatantly violated with impunity by the very
people responsible to enforce it. Sec 4(1)(b) is one such section. That even
the information commissions, which had started off with the best facilities
that a modern office could boast of, have not complied with this provision is a
crime that cannot be condoned in any manner.
The order of the Kerala State Information Commission,
then headed by a former Chief Secretary to the State Government, who was also
the first Chief Information Commissioner of the State, to the RDO, Palakkad not
to accept applications under Sec 5 of the RTI Act but to direct the applicants
to submit them directly to the concerned public authorities was an act of
blatant violation of the law.
Sec 6(3) is another such provision which has been
similarly violated with impunity by the Department of Personnel and Training
(DoPT). It had circulated an Office Memorandum in Oct 2010, not to forward
applications to other public authorities as was required by this section. An
important point that needs to be highlighted here is that the office memorandum
states that it was being issued after the matter had been discussed with the Central
Information Commission. An application under the RTI Act for details of such
consultation fetched the reply that no such details were available! And when
the matter was brought up during a convention organized by the Central Information
Commission in New Delhi in Oct 2011, an information commissioner just dismissed
it stating that such office memorandums had no bearing while deciding appeals
and that they were bound only by the law and the rules framed for its
implementation! However, all public authorities have complied with this illegal
OM very diligently in the shortest possible time! This has obviously led to
exponential increase in the number of 2nd appeals being submitted to
the information commissions. And since the information commissions are in the
forefront in subverting the law, these appeals will come up for hearing only
after ages, after they have lost all relevance! It would be pertinent to
mention here that this DoPT had even directed the Central Information
Commission that all the information commissioners should sit in one bench and
hear all the complaints/appeals submitted to the Commission!
Sec 20 of the RTI Act which can be considered to be the
tooth and nail of the law has also been subverted in the most blatant manner.
The law mandates that penalty shall be imposed even in case of delays only but
there are umpteen number of cases where the commissioners have directed the
PIOs to provide the information but have refrained from imposing the penalty.
While such decisions have rendered the law impotent and have also caused immense loss to the government, they have
also made the information commissioners liable for prosecution under sections
217, 218 and 219 of the Indian Penal Code. The scope for corruption in these
decisions has been discussed earlier.
Apart from condoning delays without any valid reasons
whatsoever, the reasons accepted as valid by information commissioners for the
PIOs denying information range from the idiotic to the absurd. In one case when
the copy of the minutes of a meeting convened by the Chief Minister of Kerala
was sought the reply was that it was not available! And all that was required
to convince the information commissioners of the legality of this reason was the
submission of an affidavit! In another case, when a copy the file notings on
the action taken by the Chief Minister on a complaint submitted to him was
sought, the reply was ‘the complaint seems to have been submitted during the
previous incumbent’s time and there is no provision in the Secretariat for
handing over records and documents when the ministers change’!
And now here comes the apex court with as absurd an
order as can be expected from an apex court. In its order in WP 210/12 on 13
Sep 2012, a division bench of the apex court has ruled that all the chief
Information commissioners should be retired chief justices of high court s or
retired judges of the apex court and also that each appeal should be heard by a
bench of two information commissioners, one of whom should be proficient in
law! Now this raises many questions- one, does the court think that only law
qualified persons can adjudicate? If so, then the day may not be far off when
the demand is made for having tehsildars, RDOs and District Collectors also to
be lawyers/judges. Next, if even retired IAS/IPS officers need to have law
qualified people to sit with them while adjudicating on appeals under the RTI
Act, then shouldn’t the reverse also hold good- that is having retired IAS/IPS
officers on all benches in judicial courts too? And then what has been the
performance of the various quasi judicial organizations like consumer ‘courts’ and human rights
commissions etc having former judges as presiding officers? I, for one, can
vouch for the fact that these have been disasters of the highest order and just
a drain on the exchequer! But that is not all. As per Art 124(7) and 220 of the
Constitution this order of the apex court is itself illegal. These articles
provide for retired high court judges to practice as advocates in other high
courts and the supreme court only and absolutely no re-employment for retired
supreme court judges.
Thanks to the wayward, whimsical and corrupt decisions
of our courts it looks like citizens themselves have been forced to study the
Constitution and the laws and now the time has come to demand winding up the
quasi judicial organisations headed by former judges and possibly recast them
with activists in the respective areas heading them after a formal training in
the relevant laws.
Tailpiece: Now, given the job content of information
commissioners, if the government amends sections 13(5)(a) and (b) and 16(5)(a)
and (b) of the RTI Act and makes the CICs equivalent to munsifs and ICs
equivalent to sub-munsifs, will the current apex court order still be forced
through by the courts?
(P M Ravindran)
03 Oct 2012
EXTRACTS OF IMPORTANT SECTIONS OF THE
RTI ACT, INDIAN PENAL CODE AND
ARTICLES OF THE CONSTITUTION THAT HAVE
BEEN REFERRED TO IN THE CRITIQUE.
The Preamble to this RTI Act states: ‘…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…it is expedient to provide
for furnishing certain information to citizens who desire to have it.’
Some important definitions are as follows.
Sec 2(g)- "public authority" means any
authority or body or institution of self- government established or constituted—
(a) by or under the
Constitution;
(b) by any other law made
by Parliament;
(c) by any other law made
by State Legislature;
(d) by notification issued
or order made by the appropriate Government, and includes any—
(i) body owned, controlled or substantially
financed;
(ii) non-Government
organization substantially financed, directly or indirectly by funds provided
by the appropriate Government
Sec 2(e)- "competent authority" means—
(i) the Speaker in the case of the House of
the People or the Legislative Assembly of a State or a Union territory having
such Assembly and the Chairman in the case of the Council of States or
Legislative Council of a State;
(ii) the Chief Justice of India in the case
of the Supreme Court;
(iii) the Chief Justice of the High Court in
the case of a High Court;
(iv) the
President or the Governor, as the case may be, in the case of other authorities
established or constituted by or under the Constitution;
(v) the administrator appointed under article
239 of the Constitution
And some important provisions of this Act which will be
referred to here are as follows.
Sec 4(1)(b). Every public authority shall publish within
one hundred and twenty days from the enactment of this Act,—
(i) the particulars of its organisation, functions and
duties;
(ii) to (viii) xxx
(ix) a directory of its officers and employees;
(x) the monthly remuneration received by
each of its officers and employees, including the system of compensation as
provided in its regulations;
(xi) to (xvii) xxx
Sec 5(2). 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
Sec 5(5). Any
officer, whose assistance has been sought under sub-section (4), shall render
all assistance to the Central Public Information Officer or State Public
Information Officer, as the case may be, seeking his or her assistance and for
the purposes of any contravention of the provisions of this Act, such other
officer shall be treated as a Central Public Information Officer or State
Public Information Officer, as the case may be.
Sec 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.
Sec 20(1). 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.
Sec 28 (1) The competent authority may, by notification
in the Official Gazette, make rules to carry
out the provisions of this Act.
(2) In particular, and without
prejudice to the generality of the foregoing power, such rules
may provide for all or any of the following
matters, namely:—
(i)
the cost of the medium or print cost price of
the materials to be disseminated under sub-section (4) of section 4;
(ii) the
fee payable under sub-section (1) of section 6;
(iii) the
fee payable under sub-section (1) of section 7; and
(iv) any
other matter which is required to be, or may be, prescribed.
It can easily be seen that this is the one and only
citizen friendly law in the country till date. It is not only so simple that
even a student who has passed 5th standard can understand it without
ambiguity, it is absolutely straight forward and clear. Shortcomings, as have
been exposed over the years, are only on account of the public servants not
imbibing the spirit of the law or blatantly subverting it as can be seen as we
go on with the analysis.
Section 217 of the
IPC. Public servant disobeying direction of law with intent to save person
from punishment or property from forfeiture.
Whoever, being a public servant, knowingly disobeys any
direction of the law as to the way in which he is conduct himself as such
public servant, intending thereby to save, or knowing it to be likely that he
will thereby save, any person from legal punishment, or subject him to a less
punishment
than that to which he is liable, or with intent to save,
or knowing that he is likely thereby to save, any property from forfeiture or
any charge to which it is liable by law, shall be punished with imprisonment of
either description for a term which may extend to two years, or with fine, or
with both.
Section 218 of the
IPC. Public servant framing incorrect record or writing with intent to save
person from punishment or property from forfeiture
Whoever, being a public servant, and being as such public
servant, charged with the preparation of any record or other writing, frames
that record or writing in a manner which he knows to be incorrect, with intent
to cause, or knowing it to be likely that he will thereby cause, loss or injury
to the public or to any person, or with intent thereby to
save, or knowing it to be likely that he will thereby save, any person from
legal punishment, or with intent to save, or knowing that he is likely thereby
to save, any property from forfeiture or other charge to which it is liable by
law, shall
be punished with imprisonment of either description for a
term which may extend to three years, or with fine, or with both.
Sec 219 of the IPC.
Public servant in judicial proceeding corruptly making report, etc contrary to
law-
whoever being a public servant, corruptly or maliciously
makes or pronounces in any stage of a judicial proceeding, any report, or order
verdict, or decision which he knows to be contrary to law shall be punished
with imprisonment of either description for a term which may extent to seven
years or with fine or with both.
Article 124 (7)
of the Constitution of India lays down that:
"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."
Article 220 of
the Constitution of India lays down that:
"No person
who, after the commencement of this Constitution, has held office as a
permanent Judge of a High Court shall plead or act in any court or before any
authority in India except the Supreme Court and the other High Courts."
Note: The above critique was sent to different media almost a week before 12 Oct 2012, when the RTI Act completed 7 years. But not only was this not published by any media, the 7th anniversary passed by without attracting any media attention at all, except of course for some idiotic comments by Man Mohan Singh, presently occupying our Prime Minister's Office and residence. A malayalam version has also met with the same fate!
