(This is the 5th 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 earlier ones are available at : http://raviforjustice.blogspot.in/2014/03/140312-rtia-exposing-idiots-and.html on o/o DC Pkd. http://raviforjustice.blogspot.in/2014/03/140331-rtia-exposing-idiots-and.html on the KSIC, http://raviforjustice.blogspot.in/2014/04/140414-rtia-exposing-idiots-and.html on o/o CM, Kerala and http://raviforjustice.blogspot.in/2014/05/140508-rtia-exposing-idiots-and.html on Rajbhavan, Kerala. Watch out for more at http://raviforjustice.blogspot.com)
This should actually have been the 1st exposure of the series because this was the 1st information commission that was constituted in the country and my 1st complaint- to remove an Information Commissioner (IC)- was also submitted to the President of India against the Chief IC of this Commission(Wajahat Habibullah)! On 21 Apr 2007 I had written to the then President of India ‘the performance of the Central Information Commission itself has been so shoddy that citizens, especially activists working in this field, are genuinely afraid that the Commission itself is subverting the Act’. This application is posted at http://raviforjustice.blogspot.com/2012/01/rti-old-application-to-president-to.html. Over the years my experience has confirmed that it was prophetic! And when you know that Wajahat Habibullah was a retired Secretary to the Government of India and former member of the Indian Administrative Service you will not be shocked at the criminally shoddy state of the government administration! And you will agree that this country need not have any external enemies so long as these kinds of clerks are there in our public offices!
While the instances that led to complaining to the President are narrated in the blog quoted earlier, the following narratives will help one understand how things have only gone from bad to worse!
Let me begin with the best order of an information commissioner I have received till date.
I had filed a 2nd appeal on 18 Apr 2008 against the PIO, Divisional Office, Southern Railway, Palakkad to know the status of certain road over bridges being constructed in the Division. The application had been transferred to their Zonal Office at Chennai and hence the PIO there was also involved. The hearing was scheduled for 26 May 2009 and Ms Annapoorna Dixit heard all the parties through video conference. The relevant parts of the decision are :
9. …….Hence it was agreed that the concerned Respondent shall furnish an Affidavit with regard to the point 22.214.171.124 stating that no further information about the cost of construction was available with the Respondent Public Authority also giving the particulars about the 5 out of 78 cases in which no information has been provided at all. The information about the current status indicating the details of the contractors who have been awarded the contract and the cost at which the contract has been awarded as sought by the Appellant in the point 126.96.36.199. is directed to be furnished. In so far as information sought against point 188.8.131.52 is concerned, about the quantum of work completed, the information was sought by the Appellant in relation to the estimated budget amount, actual amount spent on the construction and the ratio of the projected budget as against the amount spent reflecting the ratio/portion of work completed. Accordingly the information about the quantum of work completed may be provided as a ratio of the total estimated cost of construction. It is pertinent to note here that information about only 16 out of 37 cases where such construction work is in progress have been provided at all. Hence the Commission hereby directs that complete information be provided now. ...... The Commission also directs that with respect to the remaining information , as sought by the Appellant (ref. e-mail dated 25.5.09) , all information as it exists in the official records with the Public Authority or with any other Public Authority (after transfer of the RTI request under intimation to the Appellant) may be furnished to the Appellant along with the aforementioned Affidavit by 30 June, 2009.
10. The PIOs are also directed to show cause why a penalty of Rs. 250/- per day should not be imposed on them for not providing complete information to the Appellant within the mandatory period stipulated in the RTI Act.. A written response to this may be furnished to the Commission by the Respondents before 16 June 2009. Both the Respondents (Palakkad and Chennai) will also be heard via videoconference on 16 June, 2009 at 3p.m. in this regard.
11. As pointed out by the Commissioner during the hearing, the Appellant has sought a compensation of Rs.1000/- under Section 19(8)(b) for detriment suffered in pursuing this appeal . 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. Accordingly, the Commission directs the Public Authority to compensate the Appellant by paying him Rs. 1000/- to meet the expenses incurred by him on stationery and secretarial assistance , by 20 June, 2009, under intimation to the Commission.
The above order, which can be accessed at the website of the Commission, http://cic.gov.in/, by searching for order dated 19 May 2009 in CIC/OK/A/2008/00766-AD is also available at http://www.slideshare.net/raviforjustice/the-best-order-by-an-information-commissioner-under-the-right-to-information-act. It had more less addressed all the issues raised in the appeal. However, please note the three dates in the above extract- 16 Jun 2009 by which written statement against imposing penalty should be submitted, 20 Jun 2009 by which a compensation of Rs 1000/- should be paid to the appellant and 30 Jun 2009 by which an affidavit has to be provided to the appellant! Now here comes the adjunct, dated 16 Jun 2009, to the above order that makes this order less than correct. The relevant extract is reproduced below:
6. ….The information as was provided even after the receipt of the CIC’s detailed
order dated 19.05.2009 was allegedly incomplete and contained no truth whatsoever.
7. As a matter of fact, the Respondent Public Authority viz. the PIO, Chennai Construction Division present during Video Conference were also unable to answer the queries regarding such dismal performance in even complying with the orders of the CIC. Such blatant non compliance by a Public Authority as vital as the Railways needs to be checked immediately in the larger public interest and in order that the public money is utilized in the most appropriate manner. The Commission accordingly imposes a penalty of Rs. 7000 [Rs. 250/- x 28] [from 19.05.2009 to 16.06.2009] upon Mr. R T Diwakar, the CPIO, Construction Division, Chennai. The penalty should be paid by way of a Demand Draft drawn in favour of “ PAO, CAT” payable at New Delhi and send the same to Sh. G. Subramaniam, Assistant Registrar, Central Information Commission. The amount of the penalty to be paid before 10th July 2009.
Now, as per Sec 20 of the RTI Act, penalty @ Rs 250/- per day is to be imposed for every day of delay after 30 days of receipt of the application by the public authority, subject to a maximum of Rs 25,000/-. The Section is given below:
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.
Sub section (1) of section 7 is given below:
7 (1) Subject to the proviso to sub-section (2) of section 5 or the proviso to sub-section (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9:
Provided that where the information sought for concerns the life or liberty of a person, the same shall be provided within forty-eight hours of the receipt of the request.
So, the information commissioner had erred in limiting the period of delay to just between her initial order and the date of partial compliance. Also, the question arises why the penalty should be in favour of CAT (Central Administrative Tribunal)!
Now, after more than 4 years of that order I had again applied under the RTI Act to find the current status of the same constructions. There has been absolutely no response to the application and even the 1st appeal! The 2nd appeal is pending with the Central Information Commission since 9/1/2014. And worse, there has not even been an acknowledgement of receipt of the appeal by the Commission!
And here is one of the worst orders of an information commissioner. This is the worst on two counts: firstly, the application sought information from the Central Information Commission itself on the status of 4 pending appeals and it was not provided and secondly, the information commissioner who heard the appeal had been an RTI activist himself and probably the only activist who had the opportunity to enforce the law he had been vociferously arguing for! Even when the 1st appellate authority had directed the PIO to provide the information and it had not been complied with, Shailesh Gandhi simply dismissed the appeal stating that ‘all available information had been provided’! The copy of this order is posted at http://raviforjustice.blogspot.in/2012/06/rti-act-shailesh-gandhi-and.html under the title ‘RTI Act-Shailesh Gandhi and Schopenhauer's Law of Entropy’!
The pursuit of applications under the RTI Act with the CIC itself proved another fraud. That is the information commissioners will not seek records from the commission itself. Otherwise why should one send copies of the application, reply by the PIO, 1st appeal and reply by the FAA along with the 2nd appeal when all of them are already available with the Commission? The Commission actually returned an appeal seeking those copies! And when resubmitted on 15/5/12, has not disposed it even after two years now!
The perfidy of the Commission actually has no bounds. Department of Personnel and Training (DoPT) is the nodal department in the country for implementing the RTI Act. On 24 Sep 2010 it had issued an Office Memorandum- No 10/2/2008-IR-advising PIOs not to comply with Sec 6(3) of the RTI Act and if they knew the address of the other public authorities to intimate the same to the applicant and ask them to submit application(s) directly to them! To reinforce their treachery they had also mentioned that the OM was being issued after consultations with the Chief IC, Central Information Commission. To my application for copy of documents related to the consultation the reply was there were no such records! But still no action has been taken to withdraw the illegal OM leading to PIOs blatantly failing to comply with the law and increasing the number of avoidable appeals!
While the above instance shows how the clerks-of the LDC, UDC and IAS varieties- are taking not only the mango people but also the law makers themselves for a ride, the very manner of handling appeals show how scheming and anti-transparency these information commissioners are. Of course they do not provide the basic document- a receipt for the appeals and complaints received by them- that sets the accountability ball rolling. Next, they do not also allot appeal or complaint numbers sequentially thus denying the opportunity to verify whether they are being disposed off on FIFO (First In First Out) basis. Compounding this problem they also use a different number-decision number- while disposing of complaints and appeals! Mind you, the courts have been following a time tested system of allotting numbers to the cases being considered by them. But, while the nature of cases before courts are complex and the time frames for disposals may vary, it is not so with the information commissioners. These quasi judicial authorities are bound only by the RTI Act and the rules framed for its implementation. Most, if not all the appeals can be disposed of by them @ 15 minutes per appeal. The only issues to be considered by them are:
1. Does the information sought fall under any category that are exempted from disclosure?
2. If not, has the PIO provided all the information available with that public authority and/or complied with Sec6(3) of the RTI Act?
3. If not, what are the reasons? (to be ascertained during the hearing of the PIO)
4. Are the reasons given by the PIO valid? (A mere statement that it is not available cannot be accepted unless substantiated by official documents like destruction certificates as per rules in force!)
5. If there has been delay, what is the duration and what are the reasons?
6. Impose the mandatory penalty and/or order investigations.
Of the above, the facts at serial 1,2 and 5 can be confirmed by merely glancing through the copies of the documents submitted with the appeal-vis, application, 1st appeal and the replies! In any case failing to impose the penalty even when ordering the PIO to provide information not only defeats the law but also causes enormous loss to the exchequer and also makes the information commissioner liable for prosecution under Sec 217 and/or 218 and/or 219 of the IPC! These sections are simple, absolutely clear and unambiguous too. Here they are:
Section 217. 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. 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. 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.
Having said that the job of information commissioners is circumscribed by the RTI Act and the rules framed for its implementation it can easily be seen that this job is easier than that of a munsif. But look at the status conferred on the information commissioners! At the Centre they are equated to the Chief Election Commissioner and Election Commissioners and at the states they are equated to Election Commissioner and Chief Secretary! As much as it is a gross waste of the taxpayers’ money, on the ground it has also resulted into the offices of the information commissioner being turned into sinecures for the worst clerks who had served the governments at the centre and the states! While there is a lot of discussion, futile as it may look for the moment, on the opacity in the appointment of judges to the higher judiciary, the appointments to the quasi judicial organisations have not generated the kind of discussions that should have been held. The important role of the information commissioners should be gauged from the fact that the information commissioners who decided the judges’ assets case could have imposed a penalty of Rs 25,000/- on the then Chief Justice of India K G Balakrishanan himself! Legally they should have, but that they did not do it is only because we did not have competent and honest people as information commissioners!
Now, you may attempt to answer the question posed by the title of this blog and post it as your comments!
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