Saturday, 19 September 2015

Subversion of the RTI Act: Complaint to the Kerala Lokayukta

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



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,, 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.
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.

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:—
            (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:


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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  ?<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.


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


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


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!)

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

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

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.
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!