RTI-EXPOSING THE IDIOTS AND TRAITORS AMOUNG PUBLIC
SERVANTS
PART 3.2- THE TREACHERY AND THE TRAITORS
When
the opposing party violated the Rules and the law, I filed motions. I quickly realized that the judges would
protect the opposing party and attorney no matter what, but I did not let that
stop me. Every time I filed a Motion for
Sanctions and the judge denied it for bogus reasons, I had more proof of
judicial corruption. I also had another
appeal. And when the appellate court
protected the corrupt judge and the corrupt attorney for the other party, I had
more proof of judicial corruption. My
goal will always be to obtain as much proof as possible of the corruption.
-
William M. Windsor How to
Fight Judicial Corruption Tuesday, 24 May 2011 10:48 http://www.lawlessamerica.com/index.php?option=com_content&view=article&id=379:how-to-fight-judicial-corruption&catid=109:legal-options&Itemid=105
A
couple of days back I received a mail from an RTI activist informing that
another RTI activist has been murdered in Gujarat taking the toll of RTI
activists murdered there to 11! While any crime has to be condemned and murder
is the worst among them, I was left wondering whether the RTI Act was still
surviving in Gujarat! The Central Information Commission and the Kerala State
Information have definitely murdered the law itself. The only reason rare activists
persist in using the law has been aptly explained by William M Windsor, as
quoted above. The mission statement of Save RTI Campaign also states this in
different words.
In
Part 3.1 I have delved adequately into the modus operandi of the Kerala State
Information Commission and also the authorities responsible for ensuring that
this Commission performs its tasks effectively and efficiently. It has not been any better with the Central
Information Commission and the authorities responsible for ensuring that it
performs its tasks effectively and efficiently.
The
treason started with the first Chief Information Commissioner (CIC) Wajahat
Habibulla who had been earlier a Secretary to the Government of India. He was a
member of the Indian Administrative Service (IAS) which had supposedly
inherited the mantle of the Indian Civil Service (ICS) touted as the steel
frame of government administration during the colonial days! The case law I am
going to narrate will make any thinking citizen wonder if this is the quality
of the steel frame of modern government administration and whether it should
continue at all!
It
all started with me handing over a complaint, dated 17 Aug 2005, to the
President, National Consumer Disputes Redressal Commission (NCDRC) on 22 Aug
2005. The complaint was against the President of the Kerala State Consumer
Disputes Redressal Commission (KSCDRC), Hassan Pillai, a former judge of the
Kerala High Court, who had unlawfully declared holidays for that Commission
during the summer, similar to the holidays, availed by the high court itself. A
consumer organization, Consumer Vigilance Center, Thiruvananthapuram, had taken
up the matter with the Kerala High Court where the President filed a false
affidavit stating that he had not declared the holidays. He was proved wrong
and the judgment in the case had mentioned it clearly (Refer Consumer Vigilance
Center Vs State of Kerala, 2004(3) KLT 1073. But except for the holidays not
materializing no action had been taken against the President who was actually
guilty of perjury! Since in earlier complaints against the Commission the
Government of Kerala had taken the stand that the administrative control of the
state commission was vested with the national commission this complaint was
submitted to the national commission on behalf of the Save Consumer Courts
Action Council, a collective of consumer organizations in the State. The
complaint was handed over to the President, M B Shah, former judge of the apex
court, personally and it had been accepted after all his queries had been
satisfactorily answered. But, as it usually happens with these public
authorities, there was no action taken and no response either! So the matter
was pursued under the RTI Act. A simple application to provide information on
action taken on the complaint got an irrelevant reply that the matter should be
taken up with the Government of Kerala! Since this was certainly not the
information sought the matter was taken up with the Central Information
Commission. And horror of horrors, a complaint against a delinquent central
public authority to the Central Information Commission was forwarded to the
Kerala State Information Commission for further action! The matter was taken up
with the CIC, Wajahat Habibullah, through e mail and promptly got a reply that
the matter will be looked into. On
getting no further communication even after considerable lapse of time, copy of
the complaint was resend to the CIC. And again, it was also forwarded to the
KSIC! And it was then that a complaint was submitted to the President of India
to remove the CIC under the provisions of Sec 14(3)(d) of the RTI Act which
states that ‘the President may by order
remove from office the Chief Information Commissioner or any Information
Commissioner if the Chief Information Commissioner or a Information
Commissioner, as the case may be, is, in the opinion of the President, unfit to
continue in office by reason of infirmity of mind or body’ (For details
please see the copy of the complaint at http://raviforjustice.blogspot.com/2012/01/rti-old-application-to-president-to.html . Needless to say nothing happened on that also!
In
the Judges’ assets case also Wajahat Habibulla can be seen flouting the law he
was tasked, empowered, equipped and paid to enforce. Firstly, in the decision of
6/1/2009, in Appeal No
CIC/WB/A/2008/00426 it is stated that the full bench of the Commission
heard the matter on 5/11/2008 but it has been signed by only 3 ICs including
the CIC. Now, the RTI Act doesn’t make any difference between ‘single bench’
and ‘multi bench’ of the Commission. So the lack of confidence of the CIC in
dealing with the matter alone should be seen as his lack of competence arising
from the ignorance of the law itself which he is expected to be totally
conversant with. And even the multi-member bench could only decide that the
information sought needed to be provided. They failed to take cognizance of the
fact that even if the information was provided on their directions the period
for imposing the maximum penalty of Rs 25,000/- on the defaulting PIO had been
long over on 15/3/2008. They also directed the wrong PIO to provide the information
sought and not the actual custodian of the information sought who is the deemed
PIO in this case! And this deemed PIO being the CJI himself it was required
that the penalty of Rs 25000/- was imposed on K G Balakrishnan, the then CJI,
for failing to provide the information sought within the prescribed period of
30 days, that is by 9/12/2007. It would be the height of naivety to believe
that the PIO of the Supreme Court Registry was not aware of Sec 5(4) and 5(5)
of the RTI Act and could not seek the assistance of the CJI who was the de
facto custodian of the information sought. Worse thing is that in spite of the
multi bench decision of the information commission the PIO only sought to
prolong the case by appealing to a single bench and later to a division bench
of the Delhi High Court. The matter is now pending before the apex court
itself! And knowledgeable citizens have been asking how the apex court could
sit in judgment in a case involving itself as a defendant. But one positive
fall out has been that at the initiative of a couple of judges of some high
courts not merely the information sought-whether judges are submitting their
property returns to the CJI/CJs of high courts – but the contents of the
returns themselves are now available in public domain!
The best decision I have received from an IC
is that of Annapurna Dixit of the Central Information Commission in an appeal,
No CIC/OK/A/2008/00766-AD.
Through the application I had submitted on 1/10/2007 I had sought information
on the railway over bridges being constructed in the original Palakkad Division
of the Southern Railways. The original Palakkad Division had been divided into
Palakkad and Salem divisions and the application was submitted to the PIO,
Palakkad Division. Suffice to say that the information was not provided in time
and quite a bit of it was provided on 25/5/2009 just one day before the hearing
on the 2nd appeal, through video conference, scheduled for 26 May
2009. The IC while ordering provision of the remaining information and issuing
notice to the PIO on imposing penalty also directed the public authority to pay
a compensation of Rs 1000/- stating as much as ‘ It is the Commission’s considered
opinion that ‘public interest’ is central to democracy and the nature of
government itself and that the Appellant has suffered detriment in pursuit of
an important issue in the interest of ‘general welfare’ and ‘common well being’
in terms of physical and mental harassment which he had to undergo and also of
expenses incurred by him on stationery and on secretarial assistance.’ But by an adjunct, dated 16 Jun 2009, to
this decision the IC imposed a penalty of only Rs 7000/- taking into
consideration the period from her decision (dated 19/5/2009, but please do not
ask me how the decision was published on 19/5/2009 when the 1st
hearing itself had been conducted on 25/5/2009) to 16/6/2009 (the date of
hearing on the notice for imposing penalty and confirming compliance with her earlier
decision) though the delay had to be calculated from 9/11/2007 (40 days from
the date of submission of application including 5 days for transfer and 5 days
for transit.) More details of this case is available at http://www.slideshare.net/raviforjustice/the-best-order-by-an-information-commissioner-under-the-right-to-information-act
After four
years I sought an update on the information provided on 12/6/2009, based on the
decision of Annapurna Dixit. The application was submitted on 19/9/13 and on
not getting any reply the 1st appeal was submitted on 18/11/13.
Again there was no response and the 2nd appeal was submitted on 19/01/2014.
Vijai Sharma, the then CIC decided the appeal, No.CIC/VS/ A/2014/000322, on 8/7/15. The decision was shockingly wrong
right from recording of the facts to the deductions and the decision. He had
wrongly recorded that the CPIO had responded on 4/10/2013. He had completely
overlooked the information sought in para 2 of the application- Please provide the status as on 31 Aug 2013 for all
the ROB/RUB in that list. (The reference of the list was given in para 1 as Ref your letter No W351/1/1/CN/P1/117 dated
12/6/2009).
Even the information sought in para 3 – additional details about the RoB at ser
76 of the list-had not been provided to me but the CIC was just informed that
the RoB was opened and tough that was not, repeat not, the information sought, he
presumes it to be complete and end of the issue(s). He also failed to take
cognizance of the information sought at para 4 of the application-about
additional RoBs/RuBs-sanctioned after the earlier information was provided. At
least to my mind this CIC should not have been employed even as a Class IV
employee in any government office. For more details see my blog at http://raviforjustice.blogspot.in/2015/08/prosecute-vijay-sharma-chief.html
It is not only Vijay Sharma and the above case that established the fact
that the ICs do not even go through the complaint/appeal submitted by the
citizens through pain staking effort.
Shailesh Gandhi was a rare case of an RTI activist getting appointed as
an IC with the Central Information Commission and he is credited with a few
good decisions besides raising the benchmark for disposal of cases. One of his
most important decisions was in the matter of Sec of 6(3) of RTI Act mandating
PIOs, who do not have all the information sought, to forward the application to
the PIOs of such public authorities who hold those information. However the
language used in the Act being singular the PIOs were taking advantage of it to
deny information sought. And the Department of Personnel and Training, the
nodal department of the Government of India for implementing the law, had
aggravated the problem by issuing an Office Memorandum, No F 1O/2/2008-lR dated
24 Sep 2010 directing, in effect, to bury Sec 6(3) of the law. Shailesh Gandhi while deciding Appeal No
CIC/SM/A/2011/000278/SG on 16 Jun 2011 has quoted the General Clauses Act and
enough case laws of the apex court to clarify that Sec 6(3) has to be applied even
in cases where the application will have to be transferred to more than one
other public authority. But even he floundered when deciding an appeal against
the PIO of the Central Information Commission itself, who had failed to provide
info on the action taken and status of 4 appeals pending with the Commission
for almost a year. He just proved the truism in Schopenhauer's Law of Entropy
which states that ‘If you put a spoonful of wine in a barrel full of sewage you
get sewage.’ For more details please visit the blog http://raviforjustice.blogspot.in/2012/06/rti-act-shailesh-gandhi-and.html
In the above case, of the 4 appeals whose status was sought, two had
been submitted under a proper covering letter indicating that there were two
appeals and both pertained to the State Bank of India. While one of the appeals
was decided by the then CIC, A N Tiwari, on 8/12/2010, the other has not been
disposed of till now though by the work allotment at Central Information
Commission, the same IC should have decided that appeal also at the same time.
But that is only if he, or even his subordinates, had at least browsed through
the pages of the documents submitted!
The judiciary never needed a law like the RTI Act to get exposed as a failed
and corrupt institution. But how it has tried to subvert the RTI Act by
introducing exorbitant fee/cost and even
introducing a fee for 1st appeal has been dealt with in Part 2 of
this series. While some corrections have been made to those, one sore point
that is persisting is the exemption of the judicial part of the court functions
from the purview of the RTI Act. In fact even copies of court orders are denied
on the specious ground that they are part of the judicial proceedings. In a
particular petition I had filed with the High Court of Kerala when the order
was delivered almost after 3 years, it simply stated that the matter had been
decided in OP 31427/2000 and hence this petition is dismissed.
When I sought a copy of the decision in OP 31427/2000 it was simply rejected
because it is part of judicial proceedings!
In another important case, involving the decision of the Kerala High
Court holding bandhs illegal, and which decision was upheld by the apex court
also, I sought copies of these orders from the Home Department of the Govt of
Kerala. It again got transferred to various other departments, including Law,
from where it was transferred to the High Court itself. No prize for guessing
what was the reply from the PIO of the high court.
At times, some helpful PIO informs that the information (copy of the
orders) is on the web site whereas it seems to be hiding from anyone looking
for it. The same thing had happened in the case of the orders on bandhs with
could only be searched using catch word bandh and the response was ‘no
results’. In any case it had been reported in the New Indian Express of 13/1/15
that the Delhi High Court had ruled that RTI Act can be used even if info is
available through other means.
Here are a couple of case studies involving our apex court/high courts and
the RTI Act.
In what is popularly known as Namit Sharma
case, a single bench of Swatantar Kumar of the apex court, on 13/9/2012, wanted
the information commissions to work in benches with one of them being a
judicial member whose appointment should be made in consultation with the CJI
or CJ of the respective high courts! (Remember how the apex court institutionalized
the Collegium by giving a new meaning to the simple term ‘consultation’ used in
Article 124 of the Constitution?). Thanks to opposition from all possible
quarters this part of the order was stayed by a division bench of A K Patnaik
and A K Sikri on 16/4/2013. But till then, presumably, the information
commissioners and their staff should have had a long holiday at the tax payers’
cost. Further, on 3/9/2013, the same division bench, quoting Order XL of
Supreme Court Rules 1966, recalled the original judgment stating ‘this Court can
review its judgment or order on the ground of error apparent on the face of
record and on an application for review can reverse or modify its decision on
the ground of mistake of law or fact. As the judgment under review suffers from
mistake of law, we allow the Review Petitions, recall the directions and
declarations in the judgment under review and dispose of Writ Petition (C) No.
210 of 2012’.
We also have an interesting case
in Writ
Petition No. 478 of 2008 and Writ Petition No. 237 of 2011 decided together by a
division bench of D.G. Karnik and F.M. Reis of the High Court of Mumbai at Goa
on 14 Nov 2011. The argument of the petitioners in both the cases was that the
Governor of Goa was not a public authority. Thankfully both the Goa State
Information Commission and the High Court ruled this out. But two conclusions
of the high court are interesting: one, the
relationship between the President of India and the Governor of a State is not
fiduciary and two, the State
Information Commission has to be a multi-member body consisting of the State
Chief Information Commissioner and at least one (but not exceeding ten) State
Information Commissioner/s. The State Information Commission cannot function
only with one member.
So much for the rule of law and the whimsical decisions of our honorable
judges!
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