RTI-EXPOSING THE IDIOTS AND TRAITORS AMOUNG PUBLIC
SERVANTS
PART 2- GLITCHES
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.
In the first part of this series an
attempt was made to have a bird’s eye view of the strong points of the law.
Here the effort is to analyze the clauses that have been exploited as loop
holes. 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.
Vagueness is not an attribute that gels
with good laws. The RTI Act suffers from
this malady at a few places. The first such occurrence is at Sec 2(h)(d) where
under the definition of public authority the term ‘substantially’ financed is
used in the cases of certain organizations, including NGOs, which are owned,
controlled or financed (directly or indirectly) by the government. There are a
large number of cases where educational institutions, co operative societies
and even airport operators have argued that they do not come under the purview
of the Act and the question of substantially financed had been the ground of
contention. Unfortunately the standards have still not been prescribed. One
thumb rule set out by the apex court is the answer to the question whether the
survival of the entity would itself be at stake if denied the financial support
from the government. However, as per a report in the Mathrubhumi daily of 18
Jan 2015, activists in Kerala were agitating about a single bench decision of
the Kerala High Court that government aided private schools would not come
under the purview of the law for transparency! (For the less informed, the
salary of the teachers are paid by the government in these ‘aided’ schools!)
The other glitch is more substantial. It’s
got to do with the delegation of rule making powers to state governments and
even to the chief justices of the supreme court and high courts, through the
definition of competent authority in Sec 2(e) and prescription of powers to
make rules in Sec 28. Though it is more in keeping with the federal nature of
our governance, in retrospect it definitely looks unwarranted because it has
been one of the most abused provisions of the law. The worse thing is it all
began with the courts! Two things need to be highlighted here. One, while the
Central Government and almost all the state governments prescribed an
application fee of Rs 10/- and Rs 2/- as the cost of an A4 size page of
information (here I have made a distinction between fee and cost for the amount
paid with the application and the amount paid for information provided though
the term fee is used commonly in both the Act and the Rules), the courts
prescribed an application fee of Rs 500/- and Rs 5 per page of info. Adding
insult to injury, the courts also introduced a fee for the 1st
appeal when the 1st appeal itself has been provided merely to help
the public authority to undo any deficiencies in the response/actions of their
PIO! The simple solution would have been to cap the fee and cost at the rates
prescribed by the Central Government!
This glitch has been abused in another way
too. And that is the non-standard modes of payment of fees/cost. Typical case
is of the Kerala Government making one set of fee/cost and modes of payment
applicable to its departments and another set for others! While cash, court fee
stamp, deposit in treasury, demand draft, banker’s cheque or pay order were
prescribed for fee and all of them less court fee stamp for cost, for the
departments of the government, court fee and deposit in treasury were not
applicable for payment of cost for others. But it had not been so initially
when the Kerala Right to Information (Regulation of Fee and Cost Rules), 2006
was notified
in Extraordinary Gazette No 893 of 18
May 2006. The changes were effected through an amendment to these rules
through a notification in the Kerala Gazette No 2290 of 22 Dec 2007! There were two changes that were introduced: one, it
made the rates of cost prescribed in its Rules applicable only in cases where ‘no
other fee is prescribed’ and two, the modes of payment of cost were
restricted to cash and Demand Draft/banker’s cheque/Pay order for public
authorities other than government departments!
And
in a weird case, Palat Mohandas, 1st Chief information Commissioner
of Kerala State Information Commission sitting in a bench with another information
commissioner, V V Giry, decided on 21
Dec 2007 that the fee paid through court fee stamp and cost paid through
treasury to the Kerala State Pollution Board should be deemed not paid! The
treachery may not be evident until it is clarified that the fee was paid with
the application on 17 Jul 2006 and
the cost was paid on 12 Sep 2006
based on the then valid Rules. The argument of the information commissioners
was that the public authority has the prerogative of deciding the mode of
payment of fee and cost! That it is the prerogative of the applicant to choose
the mode of payment has been reiterated by the commission in many of its
subsequent decisions. This case shall be discussed in some more detail later.
The third glitch takes the cake and makes
one wonder whether the whole law had been enacted to pull wool over the eyes of
the public and essentially create a rehabilitation center for retiring
bureaucrats, of the ‘favorite’ kind, to spend another five years of their
retired life in gay abandon at the cost of the tax payer! There are three clauses
that have contributed to creation of this situation. Firstly, the selection of
information commissioners is by a committee comprising the Prime Minister
(Chief Minister at State level), the Leader of the Opposition (LoP) in the Lok
Sabha (Legislative Assembly for States) and a cabinet minister. Interestingly,
the LoP is just a scare crow or a mannequin as the selection need not be
unanimous. Next is the qualitative requirements prescribed by Sec 12(5) and 15(5) for central and state
information commissioners respectively-persons of eminence in public life with
wide knowledge and experience in law, science and technology, social service,
management, journalism, mass media or administration and governance. Nothing is
wrong there, apparently. But, as they say, the devil lies in the details. The
politicians being familiar mostly, if not only, with their bureaucrats and the
short listing being done by these very same bureaucrats, it was only to be
expected that most of the appointments as information commissioners would be
taken away by this class, forgetting the fact that this is a class that should
have been barred from such appointments due to ‘vested interests’. Situations
where they could be called upon to disclose their own controversial records
could not be ruled out and in such cases subversion of the law was only to be
expected. And not to mention the fraternity spirit that had driven them during
their days in office! And lastly, is the equation of CICs and ICs with Chief
Election Commissioner/Election Commissioner/Chief Secretary to the State
Government making it such a lucrative position that retiring bureaucrats would
fall over one another to grab it. And it is this provision that actually leaves
no room for doubt that these commissions have been constituted to rehabilitate
retiring bureaucrats. This needs to be analysed in a little more depth.
If I say the job of an information
commissioner is simpler than that of a munsif that would be an understatement.
As has been brought out earlier, this is a standalone law and if there is any
conflict with any other law this is the law that would prevail. So the
information commissioners need know nothing more than this law and the rules
made under it by the competent authority. Next, is the procedure required to be
followed by the information commissioner for taking the final decision. And that too is so simple that one may
rightly ask why the government is spending so extravagantly on the pay and
perks of these quasi judicial authorities! The complaints are so simple that
they can be disposed off with a cursory look. So let us take the case of
appeals. Copies of the application, reply by the PIO, first appeal, reply by
the FAA all form part of the documents submitted as the 2nd and
final appeal. Of relevance are only the application and the reply from the PIO.
A simple reading of the application should suffice to decide what all
information sought needed to be disclosed. Going through the reply by the PIO
would then establish if these information had been provided or not and if
provided whether it was within the prescribed time frame or not. If not
provided completely or provided with delay, the reason has to be ascertained
from the PIO. And this reason has to be a legally valid one and not something irrelevant
like the originally designated PIO being on leave or the file being with a
superior authority etc. And there is the
decision staring you in the face! But it is this simple procedure that has been
turned into something that is preposterously illogical and illegal too.
What is happening is that after months, if
not years, of receipt of the appeal the information commissioner decides to conduct
a hearing with anybody from the public authority and the appellant or his
representative, which is both unwarranted and illegal. Unwarranted, because,
the lapses of the PIO is and has to be absolutely clear by a simple perusal of
the application and his reply, as explained earlier. Illegal because, once the
default has been established it is necessary to penalize the defaulter, and as
demanded by natural justice, only such defaulter has to be given an opportunity
to being heard before the penalty is imposed. So conducting a hearing with
anybody else from the public authority is only a waste of time and resources,
at the cost of the tax payer! This is because the public servants from the
public authority obviously participate in it and claim allowances as applicable
while the appellant obviously does it at his own cost! And, often the notice
period do not even provide for the time required to arrange the move! (In one of
my own cases, the Central Information Commission ordered the Commission itself
to compensate me for my move to a Video Conferencing facility in a neighbouring
district after the respondent public authority (in this case the Delhi High
Court) failed to send their representatives for the hearing citing lack of
adequate notice!)
What follows after this hearing is even
worse! After this ‘preliminary’ hearing even when the IC would direct the PIO attending
the hearing to provide the information sought, there would be a direction for a
further hearing with the ‘original’ PIO to decide why mandated penalty should
not be imposed! And, again, quite illegally, no notice of this hearing is given
to the appellant nor are the reasons given by the PIO and the decision of the
IC communicated to the appellant! Just imagine a court declaring an accused person
as guilty in open court and then the judge having a closed door meeting with
the (now) ‘convicted’ person and thereafter nobody ever knows what happened to
the final punishment! As an activist working in this area I have openly been
exposing this as an opportunity for corruption wherein the IC can seek and
collect a bribe from the PIO and this amount can even be more than the maximum
penalty that could be imposed under the law and it could depend on the
vulnerability of the PIO who may be in a promotion zone and would not like to
spoil his record through an official punishment!
Though this list of glitches cannot be
deemed complete, for the purpose of this part of the exposures, what I would
include as the last but not the least important ‘glitch’ is the provision for
the removal of the ICs. Strictly speaking they cannot be considered to be
glitches because they have more to do with the competence of the President of
India and the Governors of the States who have been empowered to remove the ICs
even if ‘in their opinion’ they are unfit to continue in office by reason of
infirmity of mind or body (Secs 14(3)(d) of the RTI Act applies to the
President to remove the ICs of the Central Information Commission and 17(3)(d) for the Governors in the States to
remove the ICs of the respective State Information Commissions.) These
provisions are in keeping with the logical empowerment of the appointing
authorities to remove the appointees for proven incompetence/unsatisfactory
performance and reflect the coming of age of our law makers burdened with an
undemocratic, illogical and impractical impeachment procedure for removing
incompetent judges or judges with questionable integrity. But sad to say, even
with such simple and straight forward provisions in the law, the law continues
to be subverted with impunity speaks volumes of the incompetence of the
authorities empowered to use them. As a fact on record, in it’s almost 13 years
of existence only one information commissioner has been removed and that was
the Chief Information Commissioner of Uttar Pradesh-Justice M A Khan- when Ms
Mayawati had been the Chief Minister! (And it had been reported in the media
that he had committed suicide within a year of that removal!) In Kerala, an IC,
K Natarajan, who had been a DIG earlier with the Kerala Police, was accused of
trying to influence an investigation in a criminal case and was kept away from
official work for nearly half of his tenure, all the while enjoying the perks
of his office at the tax payers’ cost, of course!
Sec 217, 218 and 219 of the Indian Penal Code
provide for prosecuting public servants who falsify records and disobey the
law. In the case of ICs, to whom Sec 219 applies, the punishment could be as
much as seven years rigorous imprisonment or fine or both!
In the next part we shall see some cases
that will reveal how preposterously, blatantly and with impunity, this law has
been subverted by the very authorities tasked, empowered, equipped and paid to
enforce it!
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