RIGHT TO INFORMATION ACT- A CASE STUDY FOR SUBVERSION OF LAWS BY PUBLIC SERVANTS
P M RAVINDRAN, firstname.lastname@example.org, http://raviforjustice.blogspot.in
“Laws are like cobwebs, insects get caught, birds just fly through”
1. The above quote could not have been more true than in the Indian context and the RTI Act proves it, if any such proof was needed. For a change, this is one law that is as simple as simple can be, clear and unambiguous and can be understood by anyone who has actually passed 5th standard. And the way it has been subverted is something that should make any citizen worth the name sit up and act!
The original sins.
2. Competent Authorities and Rules. Sec 2(e) read with Sec 28 which defines certain competent authorities and empowers them to prescribe the fees/additional fees (cost). In the event most of the courts have prescribed exorbitant fees/cost and even fees for 1st appeal, in violation of the provision at Sec 7(5) of the Act and definitely in flagrant violation of the spirit of the law as provided in Sec 4(2) of the Act (It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of sub-section (1) to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information.) And as was bound to happen, the Kerala Govt has emulated this and amended its own rules in 2007 to the disadvantage of the citizen (Refer Kerala Gazette (EO) No 2290 dated 22/12/2007)!
3. Selection Committees. Sec 12(3) and 15(3) on the constitution of the committees for selecting information commissioners. The Leaders of the Opposition have been included to project some objectivity but in the absence of a mandate for unanimity they are just like scarecrows!
4. Status, pay and perks of Information Commissioners. Sec 13(5) and 16(5) have conferred the status of CEC, EC and Chief Secretary to the State Government to information commissioners whose job is simpler and much less demanding than that of the munsif. This has led to information commissions being reduced to rehabilitation homes for the worst public servants retiring from service!
The Crimes of Nodal Departments.
5. The DoPT. This is the nodal dept of the Central Govt dealing with RTI. However their resistance to disclosing file notings and confrontation with the Central Information Commission has been adequately reported. But their blatant subversion of the law through an OM (No F10/2/2008-IR dated 24 Sep 2010) directing, in effect, to bury Sec 6(3) of the law, has not been reported at all. Worse, even those ‘great’ RTI campaigners like Aruna Roy, Aravind Kejriwal etc seem to have not noticed it! By the way, the claim that it has the approval of the CIC of the Central Information Commission has been proved to be a lie! However, this OM has been promptly circulated in Kerala by the GAD through their letter No 73209/Cdn.5/10/GAD dated 18 Oct 2010 and is being complied with by almost every public authority with impunity!
6. GAD, GoK. Two of their anti-RTI acts have already been highlighted in para 2 and 5. Worse, to complaints submitted to the CM during his public contact programs (copies are available at http://raviforjustice.blogspot.com/2011/11/chief-ministers-public-contact-program.html
and http://www.slideshare.net/raviforjustice/comp-cmk-jsp2015ksic110415 ) this dept had replied saying that ‘’being a constitutional body State Govt could not interfere in the functioning of the SIC’ (their letter No 90105/Cdn5/11/GAD dated 1/6/12 refers). This not only exposes their incompetence but total ignorance of their job. Sec 27(2)(e) and (f) are unambiguous about the responsibility of the government regarding regulating the procedures followed by the information commissions and any other matter which is required or may be prescribed! It is worth recollecting that in UP Mayawati- headed government had actually removed their CIC, a former judge of the high court, who later reportedly committed suicide! In Kerala, in contrast, an information commissioner has been reportedly paid Rs 34 lakhs and kept on the rolls without doing even a paisa worth of job for the last three years even when complaints and appeals have been piling!
7. Failure to impose mandated penalty. As has been brought out earlier the information commissions, as with other quasi judicial organisations, had been evidently envisaged as rehabilitation homes for the worst public servants after their retirement from their regular employment. The information commissioners have to be held singularly responsible for the murder of the RTI Act. The most important of their lapses is, of course, the failure to comply with Sec 20 of the Act which mandates imposing penalty for lapses, including delay in providing information sought. Even while directing information to be provided the lapse of the commissioners to impose the mandated penalty has led to (a) subversion of the law, (b) loss to the exchequer to the tune of crores of rupees every month and (c) apprehensions of corruption whereby the commissioners can be logically believed to have accepted bribes from the defaulting PIOs to ‘fail’ to impose the penalty!
8. Failure to streamline their office functions. Right from acknowledging receipts of complaints and appeals to their disposal smacks of whims and fancies, arbitrariness and waywardness ruling the roost. (Please see the following blogs :
http://raviforjustice.blogspot.in/2011/10/national-convention-on-rti-uncovered.html, http://raviforjustice.blogspot.com/2012/01/rti-old-application-to-president-to.html, http://raviforjustice.blogspot.in/2012/06/rti-act-shailesh-gandhi-and.html, http://raviforjustice.blogspot.in/2012/10/a-saga-of-blatant-treason-seven-years.html etc
9. Blatantly subversive orders. The information commissioners have been issuing blatantly subversive orders. In fact looking for correct orders would be like looking for the proverbial needle in a hay stack! Some of these have again been published at the website http://raviforjustice.blogspot.in as a series under the title Exposing the idiots and traitors amoung public servants.
10. The 1st instance that comes to mind is the notorious case popularly known as the judges assets case. To an application by a citizen, Subhash Agarwal, the then CJI, K G Balakrishnan, had infamously claimed that his office was out of purview of the RTI Act. Needless to say, it only exposed his ignorance and incompetence to hold that high office of this nation! In the event, a bench comprising all the information commissioners of the Central Information Commission (not that the numbers mattered!) held the CJI wrong and this decision was upheld by a single bench and division bench of the Delhi High Court too. It is now pending with the apex court. But one good thing happened in the meanwhile. A couple of judges came out openly to disclose not only whether they had submitted their statements of assets to the CJ but even their statements! This had a catalytic effect and now the statements of assets of most of the judges are available in public domain! (And, like they say in our own courts, the judge can infer the reasons why the rest have not disclosed their statements!)
11. Amoung the other questionable actions of our judiciary, in the context of the RTI Act, one more example is considered pertinent. We are all aware that the High Court of Kerala had held bandhs illegal and this decision was upheld by the apex court too. But the same activity is now being perpetrated in a different name now-hartals! So it was deemed necessary to clarify whether it was the term bandh that was held illegal or the activities that are identified with it. And application to the Home Dept got transferred to the Law Dept and finally to the High Court itself where the PIO decided that since it pertained to a judicial matter it is not to be disclosed as per the High Court RTI Rules!
12. Now that the RTI Act has been laid to rest, unceremoniously, anybody wishing to use this law should do it with the explicit purpose of only exposing atleast three idiots/traitors among public servants- the public information officer, the 1st appellate authority and the information commissioner!