(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 firstname.lastname@example.org. 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.
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
(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
(c) impose any of the penalties provided under this Act;
(d) reject the application.
(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
E-mail: email@example.com, firstname.lastname@example.org