(This is
the 2nd of a series of exposures being brought to you by Veteran
Major P M Ravindran, Kalpathy who can be contacted at raviforjustice@gmail.com. The 1st,
including the introduction, is 140312-RTIA-Exposing the Idiots and Traitors amoung
Public Servants-O/o The DC Pkd and is available at http://raviforjustice.blogspot.in/2014/03/140312-rtia-exposing-idiots-and.html.
Watch out for more at http://raviforjustice.blogspot.com)
The Information
Commissioners (ICs) appointed as per Sec 12(3) and 15(3) of the Right to
Information Act (RTIA) are the watchdogs of transparency and are ultimately
responsible for the enforcement of this law in letter and spirit. Sec 23 of the
RTIA states: 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. Sec 19 and 20 of the Act specifies the duties and
powers of the information commissioners. Sec 19(8) and 20 are reproduced for
ready reference.
Sec 19(8).
In its
decision, the Central Information Commission or State Information Commission,
as the case may be, has the power to—
(a)
require
the public authority to take any such steps as may be necessary to secure
compliance
with the provisions of this Act, including—
(i)
by providing access to
information, if so requested, in a particular form;
(ii)
by appointing a Central Public
Information Officer or State Public Information
Officer, as the case may be;
(iii) by
publishing certain information or categories of information;
(iv)
by making necessary changes to its
practices in relation to the maintenance,
management and destruction of
records;
(v)
by enhancing the provision of
training on the right to information for its
officials;
(vi) by
providing it with an annual report in compliance with clause (b) of sub-
section (1) of section 4;
(b) require the public authority to compensate
the complainant for any loss or other
detriment
suffered;
(c)
impose any of the penalties provided
under this Act;
(d)
reject 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.
(2) 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 and persistently, failed 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 recommend for
disciplinary action against the Central Public Information Officer or the State
Public Information Officer, as the case may be, under the service rules
applicable to him.
With the
awareness of the duties and powers of the ICs as given above, there is no doubt
that the law has been subverted most blatantly and with impunity by these very
ICs. While the law makers did enact a very simple, straight forward and
unambiguous law, those responsible for enforcement did act treacherously to
kill the law in its infancy itself. This was achieved by appointing former
public servants with vested interest in subverting the law as ICs. It is worth
recollecting the quip ‘in India the civil services are neither civil nor
provide any service’! And these perfidious ICs have been able to get away with
such murder because the ultimate word on any law, the judiciary, is an even
greater failure going by the dictum ‘justice delayed is justice denied’, forgetting
about it being inaccessible to the majority of the citizens! About this organ
of our Constitution, later.
While many
states, including some of the BIMARU (Bihar, MAdhypradesh, Rajasthan and
Uttarpradesh) of the Union had enacted a law akin to the RTIA long before the
Central law came into force on 15 Jun 2005, India’s most literate state,
Kerala, had shied away from such a law. Now
when the Central law demanded that the appointment of ICs be made immediately,
it took the then Chief Minister of Kerala, Ommen Chandy, till 19 Dec 2005 to
constitute the KSIC. But even the 1st appointment of the 1st
Chief Information Commissioner was mired in controversy as the then Chief
Secretary to the Government of Kerala, Palat Mohandas, who had failed ab initio to implement the law, had been
appointed the CIC even before he had relinquished his appointment as the Chief
Secretary! May be it was to accommodate this delinquent Chief Secretary himself
the constitution of the KSIC and appointment of its 1st two ICs,
including the CIC, was delayed.
As per the
law, public authorities were to organise their records by 12 Oct 2005 as well
as proactively disclose certain basic information pertaining to their
functions, remuneration of its officers and employees etc. The public could
start applying for information thereafter. Anyhow, suffice to say that the KSIC
was constituted and the first two ICs appointed before the 1st of
the 2nd appeals could have been submitted! While Palat Mohandas and
V V Giri, another bureaucrat, had taken over as CIC and IC respectively on
21/12/2005, another two-P Faziludin, a media person, and P N Vijayakumar, a
former judge- were appointed on 24/5/2006 by the new government headed by V S
Achuthananadan. And in the words of Col N R Kurup ‘All information
commissioners are well settled in a centrally air-conditioned building adjacent
to the government secretariat, with an army of staff and all facilities that can be the envy of
any good multinational company’! Alas! The KSIC exists to prove the adage ‘the
opulence of the front office décor is indirectly proportional to the
fundamental solvency of the firm’!
Palat
Mohandas as the CIC visited his alma mater, Government Victoria College,
Palakkad, sometime in 2006 and addressed a gathering on RTIA. By then Ommen
Chandy had handed over the baton to V S Achuthanandan and the CIC went hammer
and tongs criticizing the government for its failure to implement the law.
During the Question-Answer session it was left to me to remind the CIC that
after the teams have entered the ground and the rules have been made clear it
was for the referee to enforce the rules and ensure the game proceeds as per
the rules. There was no room left for any doubt that the onus of implementing
the law was with the team of information commissioners. Later, on 26 Jan 2007,
I had the opportunity of confronting him again at a seminar on RTIA organized
by the Rotary Club there. By then the incompetence, indifference, delinquency
or treason, call it what you will, of the ICs had become crystal clear and some
suggestions were given in writing covering the issues from acknowledging
receipt of complaint/appeals by the Commission to confirmation of compliance
with the orders. The copy of these suggestions is given at the end, for those who
are keen to know the details. But unfortunately things have only gone from bad
to worse since then. No acknowledgements, no system of ensuring the
complaints/appeals are disposed of on FIFO (First In First Out) basis, no
information being provided, no mandatory punishments…; in fact nothing that is
being done is being done right! Complaints to appropriate authorities have
drawn blank as will be narrated while discussing the offices of the Chief
Minister and Governor of Kerala.
Now, here’s
a question. How much water from the ocean will one have to drink to prove that
the whole water in the ocean is salty? One sip should be enough, isn’t it? Now
here are three sips to prove that everything about the KSIC is rotten.
Case 1: Letter from KSIC to RDO,
Palakkad in violation of Sec 5 of the RTIA.
Sec 5 of
the RTIA mandates that all public authorities at the
sub-district/sub-divisional level appoint an Assistant Public Information
Officer (APIO) in additional to PIOs to just receive application and appeals
and forward them to the PIOs of concerned public authorities, including 2nd
appeals to the information commissions. The Kerala Government instructions on
the subject also make it abundantly clear. And the PIO of the O/o the RDO,
Palakkad had been complying with this order without much fuss. And then Palat
Mohandas and his team of ICs and subordinate staff landed at Palakkad on 19 Feb
2007 to conduct hearings in some complaints and appeals. Since a couple of my
own complaints/appeals had been pending with the KSIC I was curious to know the
number and dates of filing of the complaints/appeals being heard that day. The
only info that was disclosed was that 4 to 5 cases were being heard and the
concerned individuals had been intimated and the hearing would be conducted
behind closed doors, that is not open to public! But an application under the
RTIA to the PIO of the KSIC elicited some half cooked responses only. But
between the PIO and the First Appellate Authority (FAA) some interesting facts
were disclosed. Of the 5 cases taken up for hearing at Palakkad on 19/2/2007 three
had been filed after my own first 2nd appeal to the KSIC had been
filed! And even though a hearing had been held at Wayanad on 12/2/2007, one of
the five cases considered at Palakkad on 19/2/2007 was of Wayanad! And in the
most condemnable manner, both the PIO and FAA failed to disclose any
information about the cost of conducting the sitting at Palakakd! The 2nd
appeal against the PIO and FAA of the KSIC is pending with the KSIC since
29/5/2007! But it had a different fall out. The KSIC wrote to the PIO, O/o the RDO, Palakkad directing him not to
accept any applications/appeals from me, in blatant violation of the provisions
of the RTIA! Copy of this letter is available at http://www.slideshare.net/raviforjustice/rti-letter-from-ksic-in-violation-of-act051007
Case 2: Idiotic Order of KSIC in AP
No 452/2007.
An
application had been filed with a public authority along with the application
fee due. The PIO responded with a demand of cost which was also paid. Both the
fee and cost had been paid as per the then existing rules. The PIO after
receiving the cost sent a letter claiming to enclose the 20 pages of documents
but without enclosing those documents! It was not any error but a willful
deceit because if it had been an error it would have been detected (the non-dispatched
set of documents would have been there with the handlers, wouldn’t they?) and
they would have been sent immediately thereafter. It did not happen that way.
It had to be communicated to the PIO that he
could not send 20 pages of documents on a postage of just Rs 5/- and
finally when the documents came the delay was such that the information was due
free of cost. The public authority refused to refund the cost. To keep the 2nd
appeal simple only the refund of cost was demanded along with compensation as
per Sec 19 and imposition of penalty under Sec 20 of the RTIA. The CIC, Palat
Mohandas, and his colleague, V V Giri, who considered the 2nd appeal
gave a ridiculous decision on 21/12/2007. The crux of the decision is that the
appeal was dismissed on the ground that the fee and cost had not been paid as
demanded by the PIO and hence the application itself was invalid and whatever
information had been provided had been deemed provided free of cost! The copy
of this order is available at http://www.slideshare.net/raviforjustice/rti-ksicidiotic-orderof-ksic-in-ap-no4522007.
The point to ponder is when a number of means have been provided to pay the
fee/cost are the options available to the applicant citizen or the PIO can
prescribe the mode of payment. The KSIC itself has in another case-Appeal No
1370(4)/10/SIC- stated unambiguously that it
is the prerogative of the applicant to choose the method of payment of the fees
out of the allowable modes!
Case 3: Office of the Minister not a
Public Authority!
Yes, the 1st
CIC of Kerala has the dubious honour (?) of stating on record that the Office
of the Minister for Finance of Kerala is not a public authority! The order is
available at http://www.slideshare.net/raviforjustice/rti-ksic-orderministers-office-not-public-authority.
Now, the
bureaucracy in India is an acknowledged stumbling block in the growth of the
nation. At a survey conducted by NDTV, 86.87 pc of the respondents answered
affirmatively to the question ‘Do we really have the most corrupt bureaucracy
in the world?’ And this is from another report at http://www.ndtv.com/convergence/ndtv/new/Ndtv-Show-Special.aspx?ID=163
:
The babus of Indian
bureaucracy are generally perceived to be "unresponsive, insensitive and
corrupt". Citizens are often heard complaining against the excessive
red-tapism that impacts the quality of services provided by the government.
The indifferent
attitude of government servants, large scale corruption and abuse of authority
and lack of accountability makes most citizens avoid, rather than reform, the
nation's corrupt bureaucracy.
Successive governments
have paid lip service to the eradication of corruption and done nothing. Those
who suffer the most at the hands of the corrupt politicians and the civil
servants are invariably the poor- each time getting crushed under the corrupt
and oppressive system.
This link
on Civil Services may also be of interest: http://gfilesindia.com/frmArticleDetails.aspx?id=270&Name=COVER%20STORY%20-%20corruption
And here is
my take on the babus who run what we call our government: IAS- Indian
Assholes-On-Strike Service at http://raviforjustice.blogspot.in/2012/04/ias-indian-assholes-on-strike-service.html.
The
foregoing is only a glimpse into the crimes of omissions and commissions by the
transparency watchdogs. My own experiences if narrated completely will be a
tome larger than the Mahabharatha. But there can be no doubt that the
treacheries of the information commissioners have been more than adequately
exposed within the constraints of the space of a blog!
P M
Ravindran
31 Mar 2014
SUGGESTIONS TO THE CIC, KERALA: 26 JAN 2007
1. Whenever
an appeal is received at the Commission it should be acknowledged with an
appeal number and a tentative date by which the decision would be given.
2. It
would be logically and morally binding on the Commission also to have some time
limits specified to dispose of appeals.
3. Imposition
of penalty should be routine, as provided in the Act, and exemption, when given
under rarest of rare circumstances, the reasons for the same should be given in
detail in the orders of the Commission.
4. There
should be provision to compensate the appellant to the tune of 50% of the penalties
imposed.
5. Information
about the KSIC available at the official website of the Govt of Kerala is
scanty and not up to date. In this context, the following points are
highlighted:
5.1. At the website of the Central IC there is a
link giving information about the state ICs. Though only 11 odd states figure
there, amoung the southern states, it is only Kerala that is missing!
5.2. At the official website o f the Govt of Kerala
http://www.kerala.gov.in/ there is a link
to the Right to Information Act. There one can get the postal address, tele no
and fax no of the KSIC and the name of the CIC. Not even the details of the
other ICs and e-mail ids of the ICs /officials are available. These need to be
provided.
5.3. Besides, the information mentioned in 5.2,
there are various orders passed on the implementation of the RTI Act. These are
totally confusing. Only the current orders need to be made available here and
they should be presented subject-wise. The older ones may be archived, again
subject-wise.
5.4. Links need to be provided to the Central IC
also.
5.5. The details of PIO/AA of the IC should also be
provided at this site.
5.6. The orders of the Commission should also be
provided at the site. It should be searchable by appeal number/subject/appellant
name/department or office name
6. The Kerala Govt has provided for accepting
applications etc pertaining to the Secretariat at the office of the RDO. Some
officials are interpreting this in the narrowest sense to mean only the offices
in the Secretariat building at Thiruvananthapuram. This should be clarified and
the definition should include all offices of the Kerala Govt and
corporations/commissions under it that are located at Thiruvananthapuram due to
the fact that it happens to be the State capital.
7. Following
are the summary of recommendation which emerged during a public
Hearing
held on 24 Sep 2006 on the functioning of Central Information Commission:
7.1. Opportunity of being heard
should be given to both parties in every case. It is upto the party to decide
whether they wish to be physically present or send their written comments or
decide not to avail of the opportunity.
7.2. No case should be closed, just
by ordering that information be provided in the next 15 days etc. In most of
the cases, it has been seen that the PIO does not comply with such an order. As
a result, the appellant has to again approach the Commission and again wait for
7 months for his/her turn to come. Therefore, after passing an order, the case
should be adjourned, and not closed. On the next hearing, if the appellant
confirms having received information to his/her satisfaction, only then should
a case be closed. This is the practice which is being successfully followed by
Public Grievance Commission in Delhi for the last five years and also by SIC of
UP.
7.3. The Information Commissioners
should undergo training in judicial processes from some retired Supreme Court
judges.
7.4. Penalty should be imposed in
every case of violation by government officials. Else RTI would soon be dead.
7.5. Some guidelines should be made
on the terms like "fiduciary", "private information" and
"public interest", which should be uniformly adhered to by all the
Commissioners.
7.6. Appeal number should be given
to every appellant/complainant and it should be communicated to him within 24
hours of receipt of his appeal/complaint. Within the next 24 hours, it should
be put up on the website. Status of every appeal should be provided on the
website, even if it is treated as inadmissible ab-initio.
7.7. No case should be taken up on
out of turn basis, unless there is some grave public interest involved, which
should be mentioned in the order.
7.8 There
should be a public hearing every three months, which should be attended by all
Commissioners.
P M Ravindran
2/18, ‘Aathira’
Kalpathy-678003
Tel:0491-2576042
E-mail: pmravindra@sancharnet.in,
pmravindran@rediffmail.com
