STATEMENT OF THE COMPLAINT
Introduction.
1. The Right to Information Act, 2005 (RTI Act, for
short) is a landmark legislation with the explicitly stated objective of ‘containing corruption and to hold
Governments and their instrumentalities accountable to the governed’. The
Information Commissioners (IC for short) have been appointed under Sec 12 and
15 of the RTI Act and empowered under Sections 18 to 20 of the Act to enforce the
Act. However while completing 10 years of its existence it is more than evident
that the failures of the ICs have singularly led to this unique citizen
friendly law being killed in its infancy itself.
2. The best features of this law are its simplicity, clarity
and lack of ambiguity. It can be easily read and understood by even a student
who has passed 5th standard. So when there are lapses in its
implementation these lapses stand out like Eiffel Tower in its landscape!
3. The task of an IC is simpler than that of a munsif in
our courts because the RTI Act is practically a stand-alone law. The ICs are
bound only by the provisions of the RTI Act and the relevant rules promulgated
by the competent authorities, defined therein. Thus their task, on receipt of a
complaint or an appeal under Sec 20 can be listed in the following simple
steps:
3.1.
Was the
information sought disclosable or not?
3.2.
Was the
disclosable part(s) held with the Public Information Officer (PIO) receiving
the application or not?
3.3.
Did the PIO
provide the disclosable and available info or not?
3.4.
To provide the
disclosable but non-available info did the PIO comply with the provisions of
Sec 6(3) of the RTI Act which mandates that the application be transferred to
such other public authorities that may be holding the information?
3.5.
If for the first
two questions the answer is yes (repeat, YES) and the next two it is no,
(repeat NO) then the IC is only required to
3.5.1.
direct the PIO to
provide, free of cost, the complete information sought that was available and disclosable
and
3.5.2.
provide an
opportunity to being heard to the PIO before imposing the mandated penalty, of Rs 250/- per day for
every day of delay beyond the prescribed 30 days for providing the information.
3.6.
If the PIO fails
to justify the failure to provide disclosable info that should have been
available but not provided without producing valid proof like destruction
certificate of records as per relevant orders, then the IC is required to
impose the
Continued…2
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penalty mandated by Sec
20 of the RTI Act. It should be noted
that the operative part of this clause reads ‘…it shall impose a penalty…’ (emphasis added).
Thus it can be seen
that an appeal can be disposed of in less than 10 minutes and a complaint in
much lesser time. So it is reasonable to expect an IC to dispose of at least 30
appeals per day! As per data available at their website, http://www.keralasic.gov.in, on 08/4/2015
the total number of appeals disposed off by the ICs during 2014 is as follows:
Siby Mathew-52 cases, Gunavardhan-59 cases, Soni
Thengamom-12, Sasi Kumar-16, Kurias Kumbalakuzhy-17! And, Natarajan-0
(yes, zero!) cases!
(These figures were extracted
from the website of the KSIC prior to submitting the complaint to the Chief Minister
of Kerala for his much touted Jana
Samparka Paripadi (JSP) in Jun 2015)
4.
The reasons for
the shoddy performance by the ICs is not far to seek. The ICs have been given
the status of Chief Election Commissioner/ Election Commissioner/ Chief
Secretary thereby reducing these important offices to that of rehabilitation
centers for the worst bureaucrats after their retirement. This has resulted in
extraneous factors like familiarity with the delinquent PIOs and FAAs and other
personal interests etc to interfere with the process of deciding complaints and
appeals objectively. It has also caused unwarranted drain on the exchequer as
there is a vast difference in the cost to exchequer between a munsif and the
CEC/EC/Chief Secretary. Suffice to say that all these factors together have led
to the infanticide of the newly legislated tool for introducing transparency in
the functions and accountability of the nation’s public servants. It is this
horrendous situation that has necessitated this complaint.
Background.
5.
The 1st
appointment of the 1st Chief Information Commissioner (CIC) of
Kerala itself was mired in illegality. In spite of the clear provisions of Sec
15(6) of the RTI Act the then Chief Secretary to the Government of Kerala,
Palat Mohandas was appointed as the 1st Chief Information
Commissioner of Kerala. Once the illegality got exposed the appointment was
cancelled but the office was left vacant till Palat Mohandas retired as Chief
Secretary. He took over as CIC on 21/12/2005.
The Act had come into force on 15 Jun 2015 as far as appointing
information commissioners and framing rules are concerned and 120 days were
provided to the public authorities to prepare themselves before the citizens
were empowered to use the Act. The first list of suggestions were handed over by
me personally to the 1st CIC during a function of the Rotary Club at
Ottappalam on 26 Jan 2007 where he was the chief guest and the topic of
discussion was RTI Act. This list is attached as Annx C1-A. It is a fact on record that none of these suggestions
have been acted upon. The current position is indicated in italics therein.
Continued…3
-3-
6.
Worse, given at Annx C1-B is a letter sent by Kerala State
Information Commission on 5/10/2007 to the RDO, Palakkad which is illegal as
per Sec 5 of the RTI Act and the rules framed under it by the competent
authority. Para 5 of Govt of Kerala, General Administration Department (Co-ord)
Dept Circular 1, No 77000/cdn5/06/GAD dated 30 Oct 2006 is reproduced below for
ease of reference. This kind of subversion is continuing even now as is evident
from Collectorate, Palakkad letter No 2014/37925/9 dated 23/6/14 attached as Annx C1-B1
7.
This and other
delinquencies and treason by the KSIC have been brought to the Chief Minister
of Kerala through many complaints, starting from 7/5/2007, including two
complaints submitted at his much touted Jana Samparka Paripadi in 2011 and 2015
(copies attached as annexures C1-C and
C1-D). But there has been no action taken to improve the performance of the
KSIC with respect to transparency, accountability and effectiveness. The GAD had
once written stating that ‘being a Constitutional body State Government could
not interfere in the functioning of the State Information Commission’ (Copy
attached as Annx C1-E). This is a blatant
dereliction of duty as Sec 27(2)(e) of the RTI Act explicitly states as
follows:
27 (1) The
appropriate Government 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:—
xxx
(e) the procedure to be adopted by the
Central Information Commission or State Information Commission, as the case may
be, in deciding the appeals under sub-section (10) of section 19; and
(f)
any other matter which is required
to be, or may be, prescribed.
Details of the Complaint.
8.
It is now evident
that right from the appointment of ICs everything is wrong in the matter of implementation
of the RTI Act. Copies of the following documents are attached, as annexures C1-F1 to C1-F5 respectively) for your
perusal:
Continued…4
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8.1
Copy of my application under the RTI Act seeking info on the procedure for
appointment of ICs, RTI/cmk-sic appt-appln-230211 dated 23 Feb 2011
8.2. Copy
of the envelope under which the 1st appeal was submitted but returned
unaccepted. This was subsequently sent through an NGO.
8.2. Copy of my 2nd appeal, RTI/cmk-sic appt-2nd
appeal-300611 dated 30 Jun 2011
8.3. Copy of the letter, No 32/RIA/2012/CM signed on
27/7/12, from the PIO to the notice from KSIC stating that documents received
during the previous incumbant’s time were not available in that office! The
reason given is also pertinent and important.
8.4. Copy of my e mail dated 5/8/2012 to KSIC
Copy of the decision in the 2nd appeal, if finalised, has
not been provided to me till date. Neither the receipt of the
appeal was acknowledged by the KSIC nor copies of the notices to the PIO/FAA and
their responses were provided to me.
9.
The provision of
receipts/acknowledgements is also erratic and not in conformity with the format
specified in Kerala Govt Circular No 168/AR 13(2)/09/UBPV dated 12 Jan 2009.
Relevant extract is provided below for ready reference.
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xxx
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8TvJW[3&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&
8UBb8UBU[D&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&'EUGB^~
H^?<a;U/b =CT8U/<U\E:<^/!\=R
[[*=pUBUCUdWkW& #B8U\qDWm 8VCWAT<^ "`8BW^ \E,^ 8Tv[J
!LUBUdWk8T7a& $8U\qO 8W3MkWm "KWfW*WfW*JUO $] CHV8U[D <yM :BETBU
HX/UgU\dt8T7a&
?<a;[ge %\:_T,Ha9[NL )ga
Even if the receipt is provided as per the above format
there would have been adequate clarity in identifying the acknowledgement with
the document submitted. For example, it needs to be noted that the format
specifies the date of the document whereas the acknowledgement card used by the
KSIC states the date of receipt by them which could vary depending on the
postal delay and coupled with the delay at the KSIC it is practically
impossible to track the documents.
Continued…5
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Three sets of documents are attached as annexures C1-G1 and C1-G2; C1-H and C1-I1 and C1-I2
respectively.
9.1.Annx C1-G1 and C1-G2: Annx C1-G1 is the covering letter, dated 20/02/12,
under which five 2nd
appeals were submitted to the KSIC and Annx C1-G2 copies of the two acknowledgements received without
identifying which file reference corresponds to which 2nd appeal!
The fate of acknowledgements for the remaining three 2nd appeals is not known! In fact I had even sent a draft acknowledgment which
could have been torn off, appeal numbers filled in and posted in a plain
envelope costing only Rs 5/- against Rs 12/- spent for sending these two
printed post cards which did not make any sense!
9.2.Annx C1-H: These are the copies of four acknowledgements, all dated 11/7/13, received separately for
four 2nd appeals but again without identifying the respective 2nd
appeals. But in this case since the
dates of the appeals are shown as 2/7/13 and I had not submitted any 2nd
appeal with that date I have not been able to identify any of the appeals!
9.3.Annx C1-I1 and C1-I2: Annx C1-I1
is the covering letter, dated 22/4/14, under which four 2nd appeals were submitted to the KSIC and Annx C1-I2 copies of the three acknowledgements received without
identifying which file reference corresponds to which 2nd appeal!
10.
If the
provision of acknowledgements is bad, subsequent communications are worse.
Please see the notice for hearing sent by the KSIC attached as Annx C1-J. The 2nd appeal was
submitted on 3/9/12 to the APIO,
Collectorate, Palakkad and was forwarded by them to the KSIC on 6/9/12. There was no acknowledgement received from the
KSIC. The notice for hearing is dated 15/7/15.
The notice mentions the date of my application but not the reference of my 2nd
appeal itself! But it mentions the
complete reference and date of the PIO’s reply to the application! It also gives the complete reference of the
FAA’s reply to the KSIC! So the question that arises is: is the failure to give the correct and
complete reference of the 2nd appeal deliberate and malicious or
not?
11. The following facts need to be highlighted at this
stage:
11.1.
The
acknowledgements should be sent as per format specified in Kerala Govt Circular
No 168/AR 13(2)/09/UBPV dated 12 Jan 2009.
11.2.
The format can be
modified to accommodate more than one complaint/2nd appeal received
from a citizen at a time. The format shown in Annx C1-G1 can be used.
11.3.
Acknowledgements
should be sent in printed inlands so that the postal charges can be reduced to
41 percent of the current cost for sending even one acknowledgement through a
printed post card. The cost of sending an inland
Continued…6
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letter is only Rs 2.50
compared to sending a printed post card @ Rs 6/-. And there is no additional
cost for acknowledging multiple complaints/appeals!
11.4.
The
acknowledgements should have the complaint/appeal number assigned. There is no
need to intimate a file number and subsequently assign a complaint or appeal
number which is used as reference leading to creation of confusion only. In
fact a time tested system of identifying
cases is already available in our judiciary which can be easily replicated.
11.5.
The
acknowledgements could also be provided through electronic means like e mail
id, SMS etc where the appeal discloses availability of such facilities. This
would not only avoid the losses in transit but also save on postal charges.
12. The ultimate
disposal of complaints/appeals can easily be seen to be the best examples of
the ultimate white collar crimes, verging on treason! The following facts
are placed on record:
12.1.
There is no
need to break the queue in disposing complaints/appeals since the procedure is
simple and standard as outlined in para 3 above. First in-First out principle should be followed without exception.
12.2.
The ICs
should dispose atleast 30 appeals or 60 complaints per day. The rate of
disposal by the Central Information Commission is in this range. There is no
doubt that the rate of disposal by the KSIC, given in para 3.6 above, is
preposterous and indicates that the ICs are having paid holidays at the
taxpayers’ cost! There is one IC, Natarajan, who has not even disposed of a single
case in a whole year! If he has been provided salary and other perks
it needs to be recovered with penal interest.
12.3.
There is no need
to call the PIO, FAA and complainant/appellant for hearing. The complete
evidence is there on record and there can be nothing more or less that can be
averred by any of these parties to the complaint/appeal. It is just that the
law mandates punishment for the delinquent PIO and he needs to be given an opportunity
of being heard before the mandated penalty is imposed. The law nowhere states
that the hearing should be in person. If there is anything in the statement of
the PIO that could be construed as a justification for not imposing the penalty
then, and then only, should that fact be brought to the notice of the appellant
to convince him that the justification would indeed merit acceptance. If not,
his version should also be taken on record and brought out in the order.
12.4.
The
law mandates that penalty should be imposed on the defaulting PIO. Hence
summoning a different person after two or three years, then holding the
designation of PIO/FAA, for hearing should be construed as a willful fraud
being perpetrated by the KSIC. In fact the High Court of Punjab and Haryana has
Continued…7
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reportedly gone
further and declared that ‘if the public Information Officer (PlO) of a
department has been penalised by a State Information Commission on account of
withholding information the officer cannot appeal against the order through the state. The court has held that the PIO will have to approach the court in
personal capacity.
12.5.
The
same court has also held (in C.W.P. NO. 1924 of 2008) that ‘the Commission
could impose the penalty for the simple
reasons of delay in furnishing the information within the period specified
by sub-section (1) of Section 7 of the Act’. Strictly, the law mandates
imposing penalty, as the operative part of Sec 20 reads ‘…it shall impose a penalty…’ (emphasis
added). The failure to use this only teeth provided in the law can easily be
seen to be the single most important factor that has led to the subversion of
this law. However the beauty of the law is that it will unambiguously expose
the public servants who have failed for what they are- idiots or traitors!
13. The KSIC is not only guilty of
treason as evident from their orders but also of gross mismanagement. The
response of the PIO, KSIC, to an application seeking information on the status
of 2nd appeals pending with the Commission is revealing. Copy of the
application and the reply by the PIO are attached as annexures C1-K1 and C1-K2, respectively. The 2nd appeal is pending with
the KSIC since 3/5/12! The response to para 1 of the application itself is
evidence of the incompetence and indifference of the PIO. And there was no
response to the 1st appeal! The document at Annx C1-K3 is yet another response of the PIO to another
application dated 22/4/2014. It may be noted that many of the appeals are shown
not traceable and that there is no acceptable sequence in which the appeals are
taken for disposal.
14. Ultimately the treacherous nature of
the orders should be evident from a perusal of this order, attached as Annx C1-L. The CIC, KSIC has only reproduced
two of the requirements mentioned in the application leaving the others vague
Copy of the application is attached as Annx C1-L1. The information sought is at paras 2, 3 and 4. Copy of the 2nd appeal is also
attached as Annx C1-L2. Suffice to
say that while the CIC has been adequately convinced regarding the dates he has
not (repeat NOT) given a correct decision. There
is no reason why he has directed the PIO to provide copies of only the documents sought at para 2 of
the application and not the other
information sought at para 3 and 4 of the application! Now that I am in receipt some documents from
the current PIO it is clear that even the complete documents directed to be
provided by the CIC has not been provided. I have been provided copy of one
application, two decisions of the FAA of which one is against a different 1st
appeal (in other words the copy of the application leading to this decision has
not been provided!)
Continued…8
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and two orders of the CIC in one 2nd
appeal- the 1st order directing the current PIO to provide the
information sought and the 2nd order imposing the penalty. Copy of
this 2nd order is attached as Annx
C1-M. It is important to note the following facts:
14.1. During the hearing held on 14/9/2011 it was not the PIO who had denied the info who had attended the hearing.
14.2. During that hearing the CIC had
sought info on this PIO and it was
provided only through a letter dated 12/4/2012!
14.3. Notice to this PIO was sent only
through a communication dated 27/6/2012!
14.4.
The CIC has explicitly stated that
the penalty to be imposed is Rs 25,000/-
14.5.
Extraneous reasons have been quoted
to impose a lesser penalty of just Rs 3000/- only. The law nowhere lays the
limit of income of the PIO for being imposed the penalty @ Rs 250/- per day of
delay. Also the CIC has not been given any discretion to act like this in an
arbitrary manner. If this is not sufficient reason to prosecute the CIC under
Sec 219 of IPC then that section should not be there in IPC!
15. The CIC has also not complied (in Annx C1-L) with the requirements at paras
3 and 5 of the 2nd appeal. While both the lapses are deplorable,
the failure to impose the mandatory
penalty has not only resulted in loss to the public exchequer but also in
defanging the law. This crime also demands the CIC to be prosecuted under Sec
219 of the IPC especially since his attention had been drawn to this
provision of law in para 4 of the 2nd appeal.
16. The High Court of Delhi, in W.P.
(C) 3845/2007, has also held that ‘the impugned order to the extent it
discharges the sixth respondent of the notice under Section 19 (8) and does
not impose the penalty sought for has to be declared illegal.’ Paras 14 to 16 of the order are reproduced below for ready
reference.
14. xxx… Information seekers are to
be furnished what they ask for, unless the Act prohibits disclosure; they are
not to be driven away through sheer inaction or filibustering tactics of the
public authorities or their officers. It is to ensure these ends that time
limits have been prescribed, in absolute terms, as well as penalty provisions.
These are meant to ensure a culture of information disclosure so necessary for
a robust and functioning democracy.
15. In the above circumstances, Court
is of the opinion that the impugned order to the extent it discharges the sixth
respondent of the notice under Section 19 (8) and does not impose the penalty sought for has to be declared illegal.
In this case, the penalty amount (on account of the delay between 28.12.2005
and the first week of May, 2006
Continued…9
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when the information was given) would
work out to Rs.25,000/-. The third respondent is hereby directed to deduct the
same from the sixth respondent's salary in five equal installments and deposit
the amount, with the Commission.
16. In the circumstances of the case,
the third respondent shall bear the cost of the proceedings quantified at
Rs.50,000/- be paid to the petitioner within six weeks from today.
17. Thus it can be easily seen that all the functions of the KSIC,
from acknowledgement of complaints/appeals to the final decisions suffer from
serious deficiencies. Worse, apart from familiarity with the PIOs and FAAs and
some vested interests (like protecting info where the IC in his earlier avatar
as a bureaucrat had erred!) the only other logical reason for failing to impose
the mandatory penalty could be corruption. The PIOs who need to be penalised
with a stiff Rs 25,000/- fine can easily be persuaded to part with that amount
(or more, depending on the vulnerability of the PIO (like being in the
promotion zone etc) as bribe for being let off without the penalty. And even
when the appeal/complaint is dismissed with a mere direction to provide the
information sought the public exchequer is made to lose on account of the
information being provided at the cost of the exchequer. Para 17 of Govt of Kerala, General
Administration Department (Co-ord) Dept Circular 1, No 77000/cdn5/06/GAD dated
30 Oct 2006 is reproduced below for ease of reference.
Relief sought.
18. The functions of the KSIC should be
streamlined to make it transparent, effective and efficient. Hence directions
are required to be given to the Competent Authority, represented by the 2nd
respondent to do this under Sec 27 of the RTI Act. The following functions
should be streamlined:
18.1.
Complaints/appeals
should be acknowledged on the same day indicating the appeal number and the tentative date by which it will be disposed
of.
18.2.
The
cases should be disposed of on first come, first served basis. There is no need to have any exceptions. But still, in the
rarest of cases, if exceptions are found necessary, prior permission of the
Competent Authority should be taken
Continued…10
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to consider a case out of turn.
Also, all complaints/appeals should be disposed of within 90 days of receipt.
18.3.
The
summoning of PIOs, FAAs and complainants/appellants for hearing should be
stopped. However they may be informed if any hearing is scheduled and allowed
to appear at their own cost. (As it is appellants have to appear at their cost
but the PIOs and FAAs attend at the cost of the tax payer. This is clearly
against the spirit of the law and the decision of the High Court of Punjab and
Haryana in the matter of appealing against the decisions of the information
commissioner.)
18.4.
The
opportunity to being heard to be given to the PIO may be reduced to filing an
affidavit and if the PIO desires to personally appear for a hearing it should
be permitted at his cost only.
18.5.
The
mandated penalty should be imposed in all cases of failure to provide
disclosable information within the specified period.
18.6.
Since
appeals are also a consequence of failure of the public authorities to abide by
the law, cost of pursuing appeals, when claimed, should be allowed under Sec
19(8)(b) of the RTI Act.
18.7.
All
the PIOs whose appeals against the order the information commissioners are
pending in various courts should be told to pursue the appeals at their cost
and the cost incurred since the order of the High Court of Punjab and Haryana
should be sought to be refunded with interest.
18.8.
Also,
all PIOs and FAAs should be directed, through appropriate amendment to the RTI
rules, to disclose their names, besides their designations, while replying to
applications and appeals. And, if they get transferred during the pendency of
the complaint/appeal they should communicate their new address to the
complainant/appellant besides the KSIC.
18.9.
The
CIC should be prosecuted under Sec 219 of the IPC for his failure to enforce
the law which he had been tasked, empowered, equipped and paid to enforce.
Conclusion.
19. The failure of the information
commissioners can be identified as the singular reason for this first and only
law conforming to the requirements of a democratic society being killed in its
infancy. Not appointing the right persons as information commissioners and
failing to monitor their performance is the failure of the Competent Authority,
represented by the Chief Minister. Today, activists working in the area of
right to information peg our hopes on another by product of the failure of this
law: every application will help expose at least three public servants as
either idiots or traitors: the PIO, the FAA and the IC!
