P M Ravindran
2/18, 'Aathira', Sivapuri, Kalpathy-678003
Tele: 0491-2576042; E-mail: firstname.lastname@example.org
File: Comp/cm contpgm-ksic-110415 11 Apr 2015
CM’S JSP 2015, PALAKKAD: COMPLAINT- KERALA STATE INFORMATION COMMISSION (KSIC)
1. Refer the following documents:
1.1. My complaint , Comp/cm contpgm-ksic-22111 dated 22 Nov 2011 submitted through the DC Palakkad on the same day and registered vide their number 4516; followed up through e mail on 4/5/12 and in person on 30/6/12
1.2. General Admn (Co-ordination) Dept letter No 90105/Cdn.5/11/GAD dated 1/6/2012
1.3. My e mail of 21/6/12 addressed to email@example.com with copy to firstname.lastname@example.org, email@example.com
1.4. Sections 2(e), 15(3), 17, 25, 26, 27 and 28 of the RTI Act.
2. A perusal of the documents at para 1.1 and 1.2 above will reveal that no action has been taken on my complaints submitted during the Jan Samparkka Paripadi held in 2011.
3. A perusal of the documents at para 1.2 and 1.3 above will reveal that the public servants who have dealt with the complaint are either idiots or traitors. Considering the cost to exchequer they cannot be dismissed as idiots but have to be tried under our laws for treason. Or atleast under Sec 217, 218 and 219 of the IPC.
4. There has been no response to my email referred to in para 1.3.
5. The document at para 1.2 and sections of the RTI Act referred to in para 1.4 above prove that you are a mere puppet in the hands of the clerks-whether they are of the LDC, UDC or IAS categories- who are supposed to help you perform your duties effectively and efficiently. It is worthwhile recollecting the remarks of the Kerala High Court while dismissing a PIL against your Jana Samparkka Paripadi. As reported in the media, the court had opined that it was necessary because the bureaucracy was defunct!
6. Evidently, while there has been no action taken by the KSIC on my complaint, forwarded to them by GAD as claimed in their letter at para 1.2 above, it is obvious that things have only gone from bad to worse.
7. As on 8/4/2015, the info availble on the website -http://www.keralasic.gov.in/-of the KSIC is as given below:
7.1. The current information commissioners are: Dr(?) Siby Mathew, M N Gunavardhan, Soni Thengamom, K Natarajan and CS Sasikumar! Dr Kurias Kumbalakuzhy has demitted office on 20/3/2015. This implies that the information has been updated atleast on 20/3/2015.
7.2. But when it comes to the information on orders/decisions of the information commissioners, there is NO such info for 2015! Does it mean that during the past 3 months the information commissioners have been having paid holidays at the tax payers‘ cost?
7.3. So we go on to the information available for 2014 and here it is: Siby Mathew-52 cases, Gunavardhan-59 cases, Soni Thengamom-12, Sasi Kumar-16, Kurias Kumbalakuzhy-17! Mind you this is for the whole of 2014 or in other words for almost 300 working days! And what about Natarajan-0 (yes, zero!) cases!
8. The other day I also heard your own party MLA, V T Balaram, making an allegation on a video news channel, that the KSIC has not submitted its Annual Report to the Kerala Legislative Assembly for the last three years! I do not know if he had ever brought it up on the floor of the Assembly or other approppriate forums and what action has been taken on it. Maybe the CIC has decided to discontinue such an act
because of its futility. May be he must also be hoping that citizens also give up submitting complaints/ appeals, realising its futility, so that he and the other traitors like him can enjoy their sinecures without any interruptions!
9. Coming to the tasking of the information commissioners it is obvious that their job is easier than that of a munsif. Disposing of complaints should not take more than a minute. In the matter of appeals, it could be 10 minutes per appeal. The commissioners should be able to decide the basic questions of law involved- whether the info sought is disclosable or not and if disclosable the extent of default on a simple perusal of the appeal. There after the only thing required for the information commissioner to do is to provide an opportunity to being heard to the PIO seeking reasons for not imposing the penalty. After providing this opportunity, which need not be through a personal hearing, if the reasons given are not satisfactory or in precise terms, legally tenable the IC is required to mandatorily impose the prescribed penalty. Various high courts across the country have while dealing with cases involving the RTI Act, ruled that penalty has to be imposed even for mere delays and that reasons like records are not traceable/not available cannot be accepted as valid and the information commissioners can order inquiry to trace such records or to find out the reasons why those records are not available. Relevant extract s of certain orders of high courts and information commissioners are appended to this complaint.
10. That the information commissioners have grossly failed to fulfill their assigned tasks should be adequately clear from the above mentioned facts. But to add fuel to the fire they have also been sending wrong messages to public authorities through various letters like their letter No6009/SIC-Gen2/2007 dated 5/10/07 to the PIO, RDO, Palakkad and 15134/SIC-admn/2012 dated 28/12/12 to the District Collector, Palakkad.
11. Not only their failure to impose mandatory penalty has murdered the law for transparency, the loss to exchequer can be considered to be of the magnitude of the Vadhragate or 2G and Coalgate scams put together! There is also a valid suspicion that the information commissioners may actually be corrupt in that they could be taking bribes from defaulting PIOs only to fail to impose the mandatory penalty! This may need to be investigated by the CBI under the supervison of the apex court itself!
12. While there is a need to introduce transparency right from the appointment of information commissioners, the government cannot absolve itself of its responsibility when it comes to making these public servants deliver what they are tasked, empowered and paid to deliver. Specifically in the context of the RTI Act, Sec 26 and 27 needs to be implemented in letter and spirit by the government and defaulters should be punished exemplarily.
(P M Ravindran)
EXTRACTS OF CERTAIN HIGH COURT/ INFORMATION COMMISSION ORDERS
IN THE MATTER OF RTI ACT
1. High Court of Delhi in W.P. (C) 3845/2007:
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 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.
2. High Court of Punjab and Haryana in C.W.P. NO. 1924 of 2008:
A plain reading of sub-section (1) of Section 20 of the Act makes it obvious 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.
3. Madras High Court in W.P.NO.20372 of 2009 and M.P.NO.1 of 2009:
The right to information having been guaranteed by the law of Parliament, the administrative difficulties in providing information cannot be raised. Such pleas will defeat the very right of citizens to have access to information.
4. High Court of Punjab and Haryana in C.W.P. NO. 15850 of 2010:
The primary contentions raised in the affidavit are the shortage of staff, joining of the petitioner after the notice had been issued, the extension of time for registration of the plots by the Government which led to the rush of registration of plots by the owners and essential duties of Census as per the directions of the Election Commission. These are internal matters which
have to be dealt with and taken care of by the Administration and cannot be taken as a ground or a defence for not supplying the information within the time stipulated under the 2005 Act itself. The provisions as contained under the 2005 Act have to be given effect to achieve the objective of this Act which are to bring transparency and accountability of public officials and to establish the right of the citizen to have the information and these excuses, if taken into consideration, the 2005 Act itself will be rendered ineffective and the purpose with which the Statute has been brought into existence would be frustrated. Therefore, the reasons assigned for not supplying the information at an early date to the complainant cannot be accepted.
5. High Court of Punjab and Haryana (as reported in the media)
Chandigarh: Creating a precedent the Punjab and Haryana High Court has ruled 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.
6. Delhi HC (as reported in the media):
The Delhi HC said the Chief Information Commission can direct a government department to inquire into "missing" files "wherever it is claimed...information sought is not traceable."
7. CIC, New Delhi in File No CIC/DS/A/2013/001788-SA:
13. Based on the above discussion, the Commission thus holds: Unless proved that record was destroyed as per the prescribed rules of destruction/ retention policy, it is deemed that record continues to be held by public authority. Claim of file missing or not traceable has no legality as it was not recognized as exception by RTI Act. By practice ‘missing file’ cannot be read into as exception in addition to exceptions prescribed by RTI Act. It amounts to breach of Public Records Act, 1993 and punishable with imprisonment up to a term of five years or with fine or both. Public Authority has a duty to initiate action for this kind of loss of public record, in the form of ‘not traceable’ or ‘missing’. The Public Authority also has a duty to designate an officer as Records Officer and protect the records. A thorough search for the file, inquiry to find out public servant responsible, disciplinary action and action under Public Records Act, reconstruction of alternative file, relief to the person affected by the loss of file are the basic actions the Public Authority is legitimately expected to perform.
8. CIC, New Delhi in Appeal No. CIC/SM/A/2011/000278/SG:
There are numerous instances where RTI applications have been transferred by one public authority to another and none of them appears to know where the information is. In this scenario for public authorities to take a position that they will only transfer to one public authority is unreasonable and the law certainly does not state this. Public Authorities claim that it would be difficult to transfer RTI applications to multiple authorities since it would mean putting a lot of resource. …. If public authorities do not meet commitments implied in the RTI Act, the citizen cannot be denied his fundamental right.
The Commission rules that DOPT’s office memorandum no. 10/02/2008-IR dated 12/06/2008 is not consistent with the law.
The PIO is directed to transfer the RTI application to various public authorities before 25 June 2011, who must provide information for the last two years to the Appellant as per the provisions of the RTI Act.
9. SIC, Maharashtra in Appeal no. 489 + 331/Pune, Dashrath Ghenbhau Shevkari versus First Appellate Authority and District Collector, Pune
"One month had been granted earlier for conducting a diligent search of the lost file, as mentioned eariler in this Order. That period is now being extended for another one month i.e. till 15.12.2007. The relevant information should then be promptly provided to the appellant. In case the file is yet not found then an FIR should be lodged against the concerned officer / staff member. This would be the responsibility of the Appellate Authority and the Collector, Pune. Completion of this procedure should be reported to the Commission by the Collector, Pune by