RTI-EXPOSING THE IDIOTS AND TRAITORS AMOUNG PUBLIC
SERVANTS
PART 1- INTRODUCTION
Save Right to Information Campaign-Mission Statement:
Save right to information. Use Right to Information
Act.
Get information or......
Expose at least three idiots/traitors* amoung public
servants!
1. The Public Information Officer
2. The First Appellate Authority (and the Head of the
Public Authority, where the head of the public authority is not the FAA!) and
3. The Information Commissioner
* An idiot is one who does not know the job s/he is
getting paid to do and a traitor is one who knows it but does not do it!
The Right to Information
Act is the only citizen friendly and pro democracy law in India as on date. It
is simple, clear and unambiguous, as any law should be so that those affected
by the law understand it and follow it and those who are required to enforce
the law also enforce it fairly and fearlessly. Unfortunately, a decade plus
down the line, since the law was enacted in 2005, this law provides an eloquent
case study for how even such a simple law can be subverted and with impunity by
our public servants.
Firstly, let us analyze
what are the strong points of this law.
The purpose of this law,
as stated in its preamble, is:
… whereas democracy requires an informed
citizenry and transparency of information which are vital to its functioning
and also to contain corruption and to hold Governments and their
instrumentalities accountable to the governed;
And whereas revelation of information in
actual practice is likely to conflict with other public interests including efficient
operations of the Governments, optimum use of limited fiscal resources and the
preservation of confidentiality of sensitive information;
And whereas it is necessary to harmonise
these conflicting interests while preserving the paramountcy of the democratic
ideal;
Now, therefore, it is expedient to
provide for furnishing certain information to citizens who desire to have it.
And, no doubt, there can
be no doubt on the aim. It is as clear as clear can be!
The next is, the law has
identified certain information that the law makers have identified as would be
of common interest to all its citizens and has provided for public authorities
to disclose them pro actively. That is there is no need for citizens to apply
for them or get them on payment of prescribed cost. This information is
required to be disseminated through all possible means at the disposal of the
public authority, right from collecting them in a file and retaining it with a
designated public servant to enable members of the public to refer it whenever
they choose to, to publishing them on their websites. This information, listed
under 12 subparagraphs under Sec 4(1)(b)
of the Act, includes the organization structure, tasking of employees,
records maintained by each one of them, their pay and allowances etc and was
required to be published within 120 days of the enactment of the Act, that is
from 15 Jun 2005! For ease of understanding, it is necessary to state here that
none of the public authorities have complied with this requirement till date,
except the Central Information Commission. Obviously, there could be more
exceptions that I have not come across but this assertion is based on a
sufficiently large number of websites of public authorities browsed, right from
the website of the President of India to the Kerala State Road Transport
Corporation and Palakkad Municipality.
Taking cognizance of the
tendency of our ‘public servants’ to send the public on wild goose chases, the
law makers have also provided two important clauses, Sec 5(2) and 6(3). The
former mandates designation of Assistant Public Information Officers at all
public authorities at sub divisional level to accept applications and appeals
from the public and forward them to the concerned Public Information Officer(PIO),
First Appellate Authority (FAA) and the Information Commission (IC) as the case
may be. The latter, that is Sec 6(3), mandates that the Public Information
Officers who receive the applications, if they do not have the information
sought, either partly or completely, they have to forward the application(s) to
the Public Information Officer of that public authority who has the
information, to provide that missing part. The most important point about this
clause is that there is no limit on the number of public authorities to whom
this application has to be transferred because as per Sec 13 of the General
Clauses Act, 1897 (still in vogue!) singular also implies plural. This has been
amply clarified by Shailesh Gandhi, information Commissioner with the Central
Information Commission, in his decision in Appeal No CIC/SM/A/2011/000278/SG dated 16 Jun 2011. He has also quoted
sufficient number of case laws from high courts and even the Supreme Court to
reinforce it. But sad to say even the current Chief Information Commissioner of
the Kerala State Information Commission and former Director General of Police,
Vinson M Paul, has been going around telling PIOs that they need to provide
only information held with them and for information not held with them they
should tell the applicant to apply to concerned public authorities separately!
On providing a copy of the Shailesh Gandhi’s decision of 16 Jun 2011, his first
response was that the decisions of the Central Information Commission were not
applicable to him and on querying about the apex court judgments quoted
therein, he had no answer! But the fact remains the law stands subverted by the
Chief Information Commissioner himself in Kerala. (To be true to him, he is not
the only information commissioner to subvert it. More on this, later.)
The third important provision of the law is Sec 19. It
provides for a complaint against non receipt of any decision from the PIO or first
appeal against the decision of the PIO to an authority superior to the PIO,
designated as the FAA and a final appeal to the IC. And as per Sec 19(5), in
all appeal proceedings the onus to prove
that a denial of a request was justified shall be on the PIO who denied the
request. This Section, 19, also provides for the information commission to
compensate the complainant for any loss
or other detriment suffered(Sec 19(8)(b)) and also to impose any of the penalties provided under this Act
(Sec 19(8)(c)). The failure to comply with these provisions of the law has,
needless to say, totally subverted it. Also, the failure to impose the mandated
penalties has caused considerable loss to the exchequer. This scam, let us call
it RTIgate, has not only subverted the law, caused heavy loss to the exchequer
but also given another avenue for corruption which the law was intended to
curb! The how of it shall be explained later. For now it will suffice to say
that RTIgate could be a scam bigger than 2G, Coalgate and Vadragate put
together!
The tooth of the Act is in Sec 20 which mandates
that a penalty of Rs 250/- per day of delay be imposed on the defaulting PIO.
This is subject to a maximum of Rs 25000/-. That is, if the PIO, who is
required to provide the information within 30 days of receipt of the
application, does not provide it within that period, any period after that,
till the complete information he has is provided is counted as delay. And if
this delay is 100 days or more he has to be penalized with the highest amount
permitted, that is Rs 25,000/-. It is only to help him avoid being penalized to
the maximum extent that a FAA has been designated to consider a complaint or
first appeal against the PIO and take corrective action where required. But
unfortunately, in most of the cases, the FAAs are merely seen parroting the
words of the PIO, or defending them irrationally, leading to an appeal with the
information commission and the delay extending to more than 100 days.
Sec 20 (1) of the RTI Act, states as follows:
Where the Central Information Commission or the
State Information Commission, as the case may be, at the time of deciding any
complaint or appeal is of the opinion that the Central Public Information
Officer or the State Public Information Officer, as the case may be, has,
without any reasonable cause, refused to receive an application for information
or has not furnished information within the time specified under
sub-section (1) of section 7 or malafidely denied the request for
information or knowingly given incorrect, incomplete or misleading
information or destroyed information which was the subject of the
request or obstructed in any manner in furnishing the information, it
shall impose a penalty of two hundred and fifty rupees each day till
application is received or information is furnished, so however, the total
amount of such penalty shall not exceed twenty-five thousand rupees:
Provided that the Central Public Information Officer
or the State Public Information Officer, as the case may be, shall be given a
reasonable opportunity of being heard before any penalty is imposed on him:
Provided further that the burden of proving that he
acted reasonably and diligently shall be on the Central Public
Information Officer or the State Public Information Officer, as the
case may be.
I have added the emphasis to highlight the three
important components of this Section. One, the reasons for the default are
independent of each other and the defaulting PIO can be penalized for default
on any one of the grounds listed. That is a PIO can even be penalized only for
the mere delay in providing the information sought. High Court of Punjab and
Haryana, in its decision dated 8 Feb 2008 in C.W.P. NO. 1924 OF 2008 has clarified this
as stated below.
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. According to sub-section (1) of Section 7 of the Act, a period of 30 days
has been provided for furnishing of information. If theinformation is not
furnished within the time specified by sub-section (1) of Section 7 of the Act
then under sub-section (1) of Section 20 of the Act, public authorities failing
in furnishing the requisite information could be penalised.
Two, if any one of the reasons for the
default has been established the information commission has to mandatorily
impose the penalty (see the term used is shall
and not may!) at the prescribed
rates. Now the question arises that if there is factual delay, as evident from
the data on record, can the information commission have an opinion that there has been no delay? And, in the opinion of the
information commission, can there be any reasonable ground for the PIO to not
accept an application? Absolutely no, never! (Please recollect Sec 6(3) of the
Act which mandates that the PIO shall transfer the application or such part of
it as may be appropriate to that public authority, which is holding that
information!)
The third component is the opportunity to
being heard to be given to the defaulting PIO before imposing the mandated
penalty. Here again there are two factors to be considered:
(a) The sequence of events. That is, the information
commission has to establish the default, the reason for the default and the
scope for imposing the mandated penalty before the need arises to give the
opportunity to being heard to the defaulter. This obviously can be done by just
a cursory study of the documents on record as they are related to the date of
receipt of application by the public authority and the date of reply by the PIO
and the contents of that reply.
(b) The nature of hearing.
Nowhere does the clause mention that the hearing has to be personal and one to
one (between the information commissioner and the PIO). It could as well be a
legally valid affidavit taken on record. This is important because calling
defaulting PIOs for hearing, even through video conferencing, is a time
consuming and costly affair and both these are at the cost of the exchequer for
the PIOs and avoidable for the appellant. Incidentally, even when the law
mandates opportunity to being heard be given to the defaulting PIO only,
information commissions can be seen calling PIOs and FAAs or even their
representatives for an initial hearing and then, in rare cases, calling for
explanations from the original defaulting PIO for not penalizing!
A corollary to the third component is the
provision that the burden of
proving that he acted reasonably and diligently shall be on the Public Information Officer. This is of course only
a reiteration of Sec 19(5) of the RTI Act. While Sec 19(5) simply states that the onus to prove that a denial of a request
was justified shall be on the PIO, this proviso to Sec 20(1) makes it
mandatory for the PIO to prove that he had acted reasonably and diligently too.
The next strong point of this law is that
it has over riding effect over other laws (Sec 22). That is no other law can be
quoted to undo the purpose of this law and its implementation. Even in the case
of intelligence and security organizations which are exempted from this law,
Sec 24 of this law states that in matters of human rights violations and
corruption, available information has to be disclosed; and in the matter of
human rights violations permission from the information commission has to be
taken before disclosing such information and to cater for it an additional 15
days have been provided for providing such information.
Overall this is as good a law as could be
legislated, given our inheritance of a colonial administration and judiciary
that have withstood reforms for over half a century even after adoption of a
democratic and republican form of government. There are a few short comings but
whether they are deliberate or unintentional cannot be judged because the way
it has been implemented some look like loopholes left deliberately and some
unintentional. Details in the next part….!
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