RTI-EXPOSING THE IDIOTS AND TRAITORS AMOUNG PUBLIC SERVANTS
PART 3.1- THE TREACHERY AND THE TRAITORS
Why should a criminal be afraid of the crime being detected, investigated, and prosecuted in a country where the entire justice apparatus has fallen?
-Asian Human Rights Commission Slams India’s Scofflaw Officialdom Oct 19, 2012
“There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.”- Montesquieu, The Spirit of the Laws
Of necessity this part has to begin with Palat Mohandas, the 1st Chief information Commissioner (CIC) of Kerala State Information Commission (KSIC) because the manipulations started with his initial appointment itself as CIC. He was the Chief Secretary to the Government of Kerala when the Right to Information Act (RTI Act) came into force on 15 Jun 2005. The law had provided for suo moto disclosures, appointment of information commissioners and notification of the rules within 120 days of the law coming into effect, that is, by 12 Oct 2005. In his eagerness to grab the post for himself, forgetting that he was due to retire only towards the end of the year and dumping Sec 15(6) of the RTI Act, he got himself appointed as the 1st CIC of the KSIC. It was then that the threat arose of the matter being taken to court on the ground of violation of Sec 15(6) which mandated that the IC could not hold any other office of profit. That appointment was cancelled. But the implementation of the Act was held in limbo till 19 Dec 2005 when the KSIC was constituted through a Gazette Notification! The notification provided for the CIC and five ICs of which the CIC and one IC were appointed with effect from 21 Dec 2005. No prize for guessing who the CIC was! The appointment of the other ICs was left to the new government that was to be sworn in May 2006. This was in keeping with the bonhomie that prevails between the political parties, irrespective of the colour of their flags and whatever they do to impress the public otherwise!
Now as per two tables giving the number of complaints/appeals registered and disposed of as on 31/12/2006 and 22/01/2007, the total complaint/appeals disposed from Jan to Dec 2006 was 120/50 and from Jan 2006 to 22 Jan 2007 was 123/52.That is, there are only 3 additional complaints and 2 additional appeals disposed of during the period 1/1/2007 to 22/01/2007. The three additional complaints disposed of are one each of Jun, Aug and Sept 2006 and the 2 additional appeals are of Oct and Nov, 2006. There are two issues that are required to be highlighted here: One, in Jan 2007 there were 4 information commissioners, including the CIC posted in the Commission and two, the cases, whether complaints or appeals, are not being disposed off on first come first served basis. Of course for 2006, it works out to about 45 complaints/appeals per IC (including the CIC). And that works out to approximately Rs 80,000/- per complaint/appeal disposed, presuming an expenditure of Rs 1.5 crores. (The exact figures are not available for that year but the expenditure was Rs.116.18 lakhs and Rs.265.44 lakhs for the financial years 2007-08 and 2010-11 respectively.) Apart from the arbitrary manner of disposal of cases, the failure of the law makers to prescribe a time limit for disposal of each case by the ICs is also a matter that should agitate the sovereign entities of this democracy, its people!
That the quasi judicial organizations are constituted and tasked in such a manner that they merely turn out to be rehabilitation centers for the chosen bureaucrats to enjoy life in gay abandon at tax payers’ cost should be an open secret. The information commissions are no exceptions. Here are some instances to prove this. Straight from the horse’s mouth!
The CIC along with other ICs of the KSIC had conducted a sitting at Palakkad on 19/2/2007. The number of cases (complaints/appeals) heard: only 5! Hearing was conducted behind closed doors with only the parties of each case being present in their turn. This was followed by a press conference addressed by the CIC and attended by the other ICs too. And in less than two hours all of them were free to enjoy their visit to Palakkad with its tourist spots like the Malampuzha Dam, Rock Garden and Tipu Sultan’s fort! I was naturally agitated since a few of my own appeals had been pending with the Commission and there had been no response from them! So I submitted an application to the PIO of KSIC seeking information on the details, including the dates of filing of the complaints and appeals considered by the Commission during its sitting at Palakkad, the details of other complaints and appeals, from Palakkad, pending with the Commission and the cost to the exchequer for the hearing conducted at Palakkad. Needless to say not even the dates of filing of the complaints/ appeals taken up for hearing at Palakkad were provided by the PIO! The FAA corrected that mistake and my worst fears got confirmed- the complaints/appeals taken up for hearing were filed between 14/8/2006 and 16/10/2006 whereas one of my own appeals of 17/7/2006 had not been taken up for the hearing! Obviously the KSIC was not taking up the cases on first come first served basis when there was no reason why any case should be taken up for disposal out of turn! But even the FAA did not provide the info about cost!
One fall out of the above pursuit of information was that the KSIC issued a letter on 5/10/2007 addressed to the PIO, Office of the RDO, Palakkad directing not to accept any petitions under the RTI Act from anybody but request them to send them to the public authorities directly. This is in clear violation of Sec 5 of the RTI Act and also the clear directions issued by the competent authority through two circulars dated 30/10/2006.
Application to get a copy of the file notings leading to the issue of this letter has proved futile. In fact, periodic applications under the RTI Act to get the status of specific appeals submitted and pending with the Commission had also been futile except in one case when the PIO provided the shocking information that appeals could also go missing from the Commission.
Now, it is logical that one submits the copies of the application, response of the PIO, first appeal and the response of the FAA along with the 2nd appeal to the information commission. But when the 2nd appeal is against the PIO/FAA of the Commission itself, is there a need to resubmit copies of these documents which are already with the Commission? Nobody in his sense can deny that it would be a mere wastage of stationary and nothing more. But yes, the KSIC will dismiss the appeal on that ground also!
And here are two typical responses from the PIO of the KSIC to certain information sought:
Application dated 21/5/15: How many cases are pending in the courts, as on 30 Apr 2015, against the decisions of the information commissioners? Provide details to include the address of the court, case number, the KSIC File and appeal numbers, the name of the appellant, the date of decision, penalty/administrative action imposed/recommended, the name of the PIO/FAA who has approached the court, his/her designation and the address of the public authority, present status.
Response of the PIO, dated 3/6/15: A suit register is maintained in state Information Commission. Information as sought by you is not consolidated and maintained.
The points to be noted here are: one, the KSIC would be the 1st respondent in any appeal against the order of the Commission; second, the penalty is imposed on the defaulting PIO and he has to pay the penalty in his individual capacity. As per a report in the media the High Court of Punjab and Haryana had given a ruling 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.
Application dated 30/11/15: Provide an example of the pay order mentioned in 3(2)(d) and 4(3) of Kerala Right to Information (Regulation of Fee and Cost Rules), 2006.
Response of the PIO, dated 15/12/15: The inforamtion sought by you doesn’t come under Sec 2(f) of the RTI Act.(!)
The point to note here is that the public authorities in Kerala have not been accepting the Indian Postal Order, which is a Pay Order and the Commission has not been acting on the complaints in this regard. Hence the clarification sought from them.
Application dated 30/11/15: The list of the 5 oldest complaints/2nd appeals pending with each information commissioner as on 30 Nov 2015. Provide details to include the appeal numbers, date of filing the appeal, the name of the appellant, the public authority involved.
Response of the PIO, dated 15/12/15: Information has not being maintained and kept in this public authority as pointed out in this manner.
Point to note here is that the watchdog of transparency doesn’t track the progress of its own primary task! Another associated issue is that though the info was not asked in any prescribed format the public authority was bound to give it in any format prescribed by the applicant because Sec 7(9) of the RTI Act provides that ‘An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question.’
Palat Mohandas, CIC, had also earned notoriety by even deciding that the office of the Finance Minister (and by logical extension any other minister too) of Kerala is not a public authority! (Refer proceedings of the SIC in Complaint CP No. 882/2007/SIC dated 31/3/2008). His decision, dated 21/12/2007, in AP 452/2007/SIC is another one of that genre exposing the stupidity (or is it arrogance?) of public servants appointed to important public offices and at exorbitant cost to the exchequer. Part of this, about fees paid through court fee stamp and cost paid through treasury, as per the then valid rules, being deemed not paid, has been discussed earlier in Part 2. One more issue that needs to be highlighted here is the interpretation of Sec 5(2) of the RTI Act which mandates that ‘every public authority shall designate an officer, within one hundred days of the enactment of this Act, at each sub-divisional level or other sub-district level as a Central Assistant Public Information Officer or a State Assistant Public Information Officer, as the case may be, to receive the applications for information or appeals under this Act for forwarding the same forthwith to the Central Public Information Officer or the State Public Information Officer or senior officer specified under sub-section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be .’ Now, there is no doubt that even a Village Office is a public authority. The question then arises: can the Village Office designate an APIO at all the sub divisional levels? No! So the first part of the interpretation has to be that every public authority at each sub divisional level should designate an APIO. Next is, the law does not limit the task of these APIOs to accepting applications and 1st appeals pertaining to that public authority only. That is, they are implicitly required to accept applications and appeals to any public authority. Now, while wording the clause one more transaction had been left out, that is payment of the cost of information. It is only in the spirit of the law that this is also collected by the APIO and processed correctly. But when the aim of the public servants is to delay, deny and frustrate the information seeker does these logic and ‘spirit’ of the law matter?
On 18 Dec 2007 the CIC had come to Palakkad to participate in a function at the Palakkad Municipal Town Hall Annex. 13 activists, including retired professors, representatives of consumer rights organizations and farmers' organizations staged a peaceful protest outside the venue, holding banners with slogans like ‘Save RTI-Sack CIC’. But they were all arrested and falsely implicated in a criminal case at the behest of the CIC. The case was finally over in Dec 2009 with all the activists being acquitted in spite of the efforts of the police to rope in the gardener and security guard of the premises to provide false testimonies!
Now if the CIC could be so treacherous, the less said about his colleagues the better! And, for the record, none of their successors have been any better!
Copies of a detailed complaint submitted to the Governor, Kerala, on 7/11/2007, is available at http://blogs.rediff.com/pmravindran/2007/11/27/sack-the-chief-information-commissioner/ and another one submitted to the Chief Minister, on 22/11/2011, is at http://raviforjustice.blogspot.com/2011/11/chief-ministers-public-contact-program.html
On following up the latter persistently, a letter was received from the General Administration Department stating that the complaint had been forwarded to the Secretary KSIC for necessary action as the Commission being a Constitutional body (now what is that?) the government could not interfere in its functions! This, no doubt, was criminal abdication of responsibility because Sec 27(2)(e) and (f) of the RTI Act clearly empowers the appropriate government to make rules to provide for the procedure to be adopted by the Commissions for deciding appeals and also any other matter which is required to be, or may be, prescribed! It may also be recollected that in UP the CIC, M A Khan, who had been a former high court judge, was removed by the then government headed by Mayavati.