It is imperative to study
the effect of judicial failure on other institutions of the government,
particularly the institutions required to deliver services of the government to
the people, before I wind up this series. And here, I am reminded of Schopenhauer's Law of Entropy which states, ‘If you put a spoonful of wine in a
barrel full of sewage you get sewage. If you put a spoonful of sewage in a
barrel full of wine you get sewage!’
To anybody who
has read this series this far, there would not be any doubt how badly our
judiciary fares in fulfilling its assigned task of delivering justice to the
aggrieved. Its deleterious effect is there for all to see, nay experience. It
looks like everybody in government is forcing aggrieved citizens to approach
the courts where their cases can languish indefinitely and nobody can do
anything about it. The only alternative is to suffer in silence and ignominy. ‘When we transformed from subjects to
citizens, we forfeited our rights it seems, since what happens in our country now in the name of law is often rank
injustice’, wrote Renuka Narayanan in The New Indian Express of 20 Dec
2004 (‘Human rights, the genesis of justice is from religion' under her column 'Faith
line').
The Right to
Information Act, 2005 can be considered as the only pro-democracy, citizen
friendly law in the country. Its preamble has unambiguously stated its purpose
as: ‘to
promote transparency and accountability in the working of every public
authority’ and ‘to contain corruption
and to hold Governments and their instrumentalities accountable to the
governed’. The law is simple enough to be understood by anyone who has
passed 5th standard. But, horror of horrors, even this law has been subverted so badly that the information
commissions have turned out to be just rehabilitation centers for retired babus
for an additional 5 (now 3) years after their retirement.
Before listing
some case studies, let me list some important provisions of the Act, relevant to
understanding the treachery of the babus.
1.
The law
came into effect on 15 Jun 2005 for the public servants and 120 days later (12
Oct 2005) for the public. This was to enable the public servants to organize
their files and designate those responsible for dealing with applications (the
Public Information Officer, PIO) and appeals (the First Appellate Authority,
FAA, who is an authority superior to the PIO and the 2nd appellate
authority, the Information Commissioners, ICs, empowered to penalize defaulting
PIOs).
2.
Within
this period they were also required to suo moto disclose certain common
information listed under Section 4(1)(b) of the Act. Two of these- directory of
the public servants in the office and their remuneration- have been of
particular interest to me mainly for the ease of validating the compliance with
this requirement.
3.
The
PIOs cannot drive applicants from pillar to post saying that the information is
not available with them. They are bound to send the application to the public
servant who is expected to be holding the information. If this public servant
is in another office, this transfer is required to be done within 5 days of
receipt of the application and the applicant has to be informed of this
transfer. If the custodian of the information sought is in the same office the
information should be collected by the PIO and provided by him. If the public
servant holding the information, being in the same office, does not provide the
information to the PIO, then, as per the law, the one holding the information
is deemed to be the PIO and liable for penalty in case of delay.
4.
The
information sought has to be provided within 30 days from the date of receipt
of the application by the PIO. If any cost is required for copies of documents
or materials to be provided then the period between demanding the cost and production
of proof of payment, is excluded from this period.
5.
The
applicant has the choice of three languages-Hindi, English and official
regional language- to apply for information. Needless to say the replies are
expected to be in the same language as the application. Logically it applies to
appeals also, except that in the case of central government offices the 2nd
appeal will necessarily have to be in Hindi or English only. Hence it would be
advisable to seek information from central government offices (including Public
Sector Banks, industries and other service providers) in English or Hindi only.
6.
The
applicant also has the choice of paying the fees required with the application
and the cost, when demanded, by different means. Unfortunately, these methods
are not uniform for all the states, the Center and the judiciary. Worse, there
are many examples of PIOs imposing their own choices on unwary applicants.
7.
Time
frames are fixed-30 days, excluding the transit time for communication through
snail mail- for replying to application, submitting 1st appeal and
replying to 1st appeal. While
the 2nd appeal can be filed within 90 days of receipt of the reply
from the FAA, there is no time frame prescribed
for disposing of these appeals by the ICs. Worse, because it has not been
specified in the Act or rules, they are also not disposed of on 1st come 1st served basis.
There is no reason why this is not followed because the Act specifies only one class of applications to be dealt
with expeditiously- those dealing with life and liberty of individuals. This
is a gross failure of the competent
authorities with disastrous consequences.
8.
The Act
prescribes imposing a penalty of Rs 250/- per day of delay, beyond the 30 days
prescribed for providing the information sought. The onus is on the PIO to
prove that the reasons for not providing the complete information were beyond
his control (I can think of only one, that is, destruction as per laid down
policy).
9.
The Act
also provides for compensating the applicant for any loss or detriment
suffered.
10.
This Act
also has overriding effect vis-a-vis other laws in force.
11.
Even in
the matter of organizations exempted from the provisions of this Act, the
information pertaining to corruption and human rights violations and those in
public interest are required to be provided.
After
completing 18 years of the Act, it is appalling to note that there is gross
failure of the public servants in complying with the Act. Some failures are
listed below.
1.
The
disclosures required to be made suo moto have not been made by most, if not
any, of the public authorities. I can vouch for the failures of the Supreme Court,
Central and the Kerala State Information Commissions.
2.
The
PIOs/ appellate authorities do not acknowledge the receipt of the application/
appeal. Nor do they comply with the time frames and get away with it with impunity.
3.
The
PIOs do not comply with the requirement of transferring the applications to
other public authorities within the prescribed time and intimating the
applicant.
4.
Quite
often the applications are sent to other irrelevant authorities.
5.
The
PIOs and appellate authorities do not respond to the applications/appeals in
the language of the application/appeal.
6.
They
use devious methods like asking applicants to visit their office and peruse the
files and collect the information needed. Just imagine an applicant in Kerala
being asked to peruse the files and collect the information from an office in
Delhi.
7.
The
appellate authorities do not apply their mind to the incongruities/deficiencies/
defects brought out in the appeals. The FAAs invariably can be seen justifying
or overlooking the defaults of the PIO. The ICs too are seen glossing over the
shortcoming brought out in the 2nd appeal. Even in the rare cases
they order PIOs to provide some random information they fail to impose the
mandatory penalty. This is when, by the time the IC orders information to be
provided, there is already over 100 days of delay and the maximum penalty of Rs
25000/- is liable to be imposed. This has led to not only total subversion of
the law, but also loss to the exchequer.
8.
The
lapses of the PIOs when condoned without valid reason, gives room for
suspecting corruption. We are all familiar with the quip there are no free
lunches. These are cases prosecutable under Section 219 of the Indian Penal
Code which provides for 7 years in prison. But here the information seeker
faces two problems: one, is the need to get permission from one public servant
to prosecute another public servant and two, the impossibility of getting a
fair decision from the courts within any reasonable time.
9.
The
cost in terms of time and effort invested by the appellants are not taken into
account and they are invariably denied compensation for pursuing the appeals.
Some Case Studies
1. Palat Mohandas was the Chief Secretary to the
Government of Kerala when the RTI Act came into force. State Information
Commission should have been active at least by 01/11/2005 to receive the first
complaint under the RTI Act. But Mohandas had other plans and, amidst
controversy, he hopped from the office of the Chief Secretary on 31/10/2005 and
landed as the first Chief Information Commissioner on 21/12/2005. One more IC was
appointed along with him on the same day. Two more followed only on 24/05/2006.
The current CIC
of Kerala, Viswas Mehta, did it one better. He just stepped out of the CS’s
office on 28/02/2021 and into the CIC’s office on 01/03/2021. His appointment is
also mired in controversies. The most important of them is the opposition of Leader
of the Opposition who one of the members of the selection panel along with the
Chief Minister and another minister. The opposition was on the ground that he
had filed a complaint against him with the vigilance and anti-corruption bureau
“for his attempt to engage some private international consultancy firms in the
works and projects of Water Resource Department in a highly irregular manner”.
One is reminded
of a similar situation where the apex
court had dislodged P J Thomas, a Central Vigilance Commissioner, appointed
in 2010. His tenure lasted for just 6 months as he had to resign on 03/03/2011.
But the cause of his removal, being an accused in the Palmolien Import Scam,
which made news in 1991-92, remains unaddressed.
Shockingly,
Viswas Mehta continues in office even now and plumbing new depths in subverting
the law he has been tasked, empowered and paid to enforce.
We are also aware
how the apex court had found it imperative to intervene in the matter of
appointment of election commissioners who are also appointed in the same manner
as the information commissioners and other quasi judicial authorities.
Since these dubious appointments will continue till transparent and
stringent procedures are put in place and followed rigidly, we can only strive
for it, hoping that the efforts will yield result sooner than later.
2. Palat
Mohandas and his team of ICs had held a sitting at Palakkad on 19/02/2007. I
tried to attend the hearings held in the Conference Hall of the Collectorate.
The first shock was delivered when I was told that the hearings were being held
one to one and others were not permitted. That
is, it was not like public hearings held in open courts. Seeking to know the
number of complaints and/or appeals being heard also drew a blank. Fortunately
the hearings were over in about half an hour and there was a press conference
addressed by all the information commissioners. There was an effort to restrict
entry to only accredited media representatives but I made my way by arguing
that since it was an outreach program I wanted to seek some clarifications.
Clarifications sought on whether cases were being disposed of on first come,
first served basis and the rate of disposal of cases again drew blanks.
So this
information was sought under the RTI Act itself. Here are some pertinent
details.
(a)
Regarding information provided on
hearings held outside the Headquarter, the PIO could not provide the dates of
the hearings scheduled for the period immediately following his reply. The FAA
informed that there is no policy for holding such hearings. This straight away
validates the common perception that these hearings are scheduled to cover the
personal needs of the public servants. (Reminded of a media report of a Chairman of the State Human Rights
Commission, a former judge of the High Court, holding sittings at the temple
town of Guruvayur on the 1st day of every month of the Malayalam
Calendar.)
(b)
There were only 3 appeals and 2 complaints heard by the 4 ICs at Palakkad.
The PIO had informed that except for one appeal all the others came under the
category of information concerned with the life or liberty of a person, which
needed to be provided within forty-eight hours of the receipt of the request.
The FAA corrected that none were of this category. This is proof of the effort
to obfuscate information. Also, the lackadaisical and profligate manner in
which the information commissioners perform their tasks.
(c)
The FAA also amended the number of
older cases, from Palakkad, pending with the
Commission, compared to the oldest case heard
at the sitting on 19/02/2007, from 5 to 8. The
RTI Act treats all applications for information as equally important except
those concerning life and liberty. Hence there is no reason why all the cases,
other than those dealing with life and liberty, are not disposed of on a first
come, first served basis.
(d)
Regarding the cost to exchequer for the sitting held at Palakkad, the PIO
informed that it was actual Travelling Allowance (without, of course, giving
the specific figures which is what should have been provided) entitled to the
participants where as the FAA informed
that the information is not available. This again exposes the lack of
competence and/or of deliberate effort to deny information. The PIOs and FAAs
cannot take excuse of the law mandating provision of available information only because all these are information that
has to be available with the every public authority because they would be using
it on routine basis.
3.
It looks like I rubbed on the wrong
side of the information commissioners and the reprisal was swift. On
05/10/2007, the Kerala State Information Commission, wrote to the PIO, office
of the Revenue Divisional Office, Palakkad not to accept any ‘petitions’ under
the RTI Act and direct the petitioner to send the applications, complaints and
appeals directly to the public authorities concerned. This was in blatant violation of Section 5 of the RTI
Act and the instructions issued by the competent authority through two
circulars on 30/10/2006.
To
be continued…
P M Ravindran/ raviforjustice@gmail.com
/ 10 Feb 2024
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