Sunday 25 February 2024

JUDICIAL PERFIDES-30 VALIDATING SCHOPENHAUER-PART-2

 

The failure of the judiciary can easily be attributed to the failure of the Constitution to provide the necessary systemic checks and balances, particularly for accountability of the judges. But the bureaucracy does not have such freedom. In fact, we can easily automate their functions and provide their services through kiosks placed at vantage points all over populated areas. It is just a matter of linking the needs of citizens to the resources available and provisions of laws. However the babus, who have reduced government administration to a synonym for corruption and treason, have survived, nay, thrived, by riding on the failure of the judiciary. If it had been under a shroud earlier, the RTI Act has helped to simply remove that shroud.

 

I have not only used this law extensively but also helped many to use it for seeking information right from Village Offices and Gram Panchayats to Rashtrapati Bhavan and PMO. Positive results have been almost negligible but the failures have helped in exposing the underbelly of what we call the government, in its widest sense. Yes, the sense in which we have three organs, one each for legislating, executing and arbitrating/adjudicating. In the narrow sense we know that it is just the President and Cabinet of Ministers headed by the Prime Minister at the Centre and the Governor and Cabinet of Ministers headed by the Chief Minister in the States.

 

So, here are more examples of how various public authorities, read government offices, have responded to the RTI Act. 

 

1.      Soon after the law came into force, I had sought information on the tenures of District Collectors and District Superintendents of Police (now re-designated as District Police Chiefs). While the General Administration Department of the Government of Kerala did not have the information, the application was forwarded to all the districts and information was provided by the district offices directly. (Just as an aside, it revealed that the DCs had a tenure of less than one year and the Police Chiefs less than 10 months, with rare exceptions. Interestingly, after this, at least in my district, both these public servants have been having 2 years plus tenures. But, did it help in improving the administration or law and order in the district? Unfortunately, it has to be a ‘no’.)

In contrast, shortly thereafter, I had sought information from the office of the DC about the digitization of land records and, horror of horrors, I was asked to approach the taluk offices. The reason? In the first step towards subversion of the RTI Act, the babus began claiming that the Act only mandated transferring the application to the other public authority (singular) and not authorities (plural). They were either ignoramuses themselves or simply exploiting the ignorance of the public about the provision of the General Clauses Act whose Section 13 has stated that ‘words importing the masculine gender shall be taken to include females’ and ‘words in the singular shall include the plural and vice versa’. 

It took Shailesh Gandhi, one of the rare RTI activists to be appointed as an information commissioner, to quote this clause and other apex court verdicts to rule unequivocally that the application will have to be send to as many other public authorities as were required.

I had the opportunity to quote this decision, dated 16/06/2011 in Appeal Number CIC/SM/A/2011/000278/SG, to a Chief Information Commissioner of Kerala, Vinson Paul, a former DG of Police. His response was that he was not bound by the decisions of Central Information Commissioners. He had no response when confronted with the query that it was not the Central Information Commissioner’s decision that was pertinent but the laws and apex court verdicts quoted by him.

 

Unabashedly, he was learnt to have gone one step further and advised the PIOs in the State that, if they did not have the information sought, they could direct the applicant to apply directly to the concerned offices, while providing the details of those offices if they had them.

 

2.      I had submitted an application for some information from the Kerala State Pollution Control Board, Thiruvananthapuram regarding a bio-medical waste incineration plant set up by the Indian Medical Association in the catchment area of the Malampuzha reservoir in Palakkad. Confining myself just to the subversion of the RTI Act by the information commission, here are some facts.

The application was submitted, in accordance with Sec 5 of the RTI Act, through the Assistant PIO of the office of the Revenue Divisional Office at Palakkad on 17/07/2006. The PIO had received the application on 31/07/2006. He demanded a cost of Rs 40/- through his letter of 26/08/2006. 30 days prescribed for providing the information was getting over on 29/08/2006. This meant that the PIO had just 3 days to send the information after receipt of payment of cost or proof of such payment. The payment was demanded as cash or through Demand Draft.

As per the prevailing rules, the applicant had the choice of making this payment at a government treasury also. Rule 4(3), extracted from Kerala Right to Information (Regulation of Fee and Cost Rules), 2006, published on 18/05/2006 in Kerala Gazette (Extraordinary) Volume 51, Number 893, is given below:

The fee specified in sub-rules (1) and (2) shall be collected by way of cash against proper receipt or by remitting the amount in the Treasury under the head of account “0070-other administrative services-60 other services-800 other receipts-42 other items” or by demand draft, or bankers cheque or pay order payable to the concerned State Public Information Officer.

The treasury receipt was sent through the same APIO on 13/09/2006 and received by the PIO on 04/10/2006. He sent a reply on 4/11/2006 (32 days later instead of the available 3 days) stating that the copies of the documents were enclosed. There was a delay of 29 days. This was received by me on 14/11/2006. But there were no copies of any document. The bluff was called as the value of the stamps on the envelope proved that 20 pages of documents could not be sent for that amount. Also, if it had been inadvertently left behind I should have received the same by post shortly thereafter. This also did not happen. My letter of 14/11/2006, communicating this fact, was received by the PIO on 21/12/2006, as claimed by him. An unbelievable 37 days later.

The PIO then sent the copies on 29/12/2006. It was received by me on 01/01/2007, just 3 days later.

I sought refund of the cost I had paid, as the RTI Act mandates provision of information free of cost after 30 days. There was no response.

1st appeal was filed on 23/01/2007 which was disposed of on 18/04/2007, without any corrective action. Presuming that the appeal had been delivered to the FAA 15 days later, there was a delay of more than 40 days in the FAA’s reply.

The 2nd appeal was submitted to the Information Commission at Thiruvananthapuram, through the APIO of the office of RDO, Palakkad on 31/05/2007 and received by the Commission on 13/06/2007, 13 days later. The Commission’s order dated 21/12/2007 in this appeal, numbered as AP 452/2007/SIC, is a classic example of subversion of the law itself.

The appeal was decided by a bench of 2 commissioners, Palat Mohandas, the CIC and V V Giry, IC. Just for the record, the RTI Act does not provide for multimember benches and most of the decisions can be seen to be that of single information commissioners only.

The appeal was dismissed on the following grounds:

Ø  Since the appellant had not made remittance towards cost of providing the information as per the provisions in the relevant rules, the information shall be deemed to have been given free of cost and therefore refund of cost does not arise

Ø  Since the appellant had not made remittance towards cost of providing the information, as per rules, the respondents were not under any obligation to provide the information and therefore the other reliefs sought for in the appeal are irrelevant.

Both these conclusions were absolute frauds, being lies that the appellant had not made remittance towards cost of providing the information as per rules. It had definitely been paid as per rules but not as per the choice of the PIO.

Interestingly, on 22/12/2007, the Government of Kerala published an amendment to the rules in Volume 52, Issue Number 2290 of the Kerala Gazette (Extraordinary). Para 3(b) of this amendment is extracted below. 

In rule 4, - (i) in sub-rule (1), after the words “the fee shall be charged at the following rates” the words “in case no separate fee is prescribed” shall be inserted. (ii) after sub-rule (3), the following proviso shall be inserted, namely:- “Provided that in the case of public authorities other than the Government Departments, the fee shall be remitted to the account of such public authority as provided in clauses (c ) and (d) of rule 3.

It can be seen that the amendments were made only to validate the order but it came a day too late. This was a typical case of the proverbial thief leaving his fingerprints. It is also pertinent that this amendment cannot apply to the fees/cost paid prior to 22/12/2007. And one can imagine who all were complicit in this foul play.

 

3.      Now, let me cite an example of trying to pay the fees/cost by cash to a PIO in the State Secretariat itself. I had got a demand for Rs 6/- for copies of three pages from the General Administration Department (GAD). I approached the PIO and offered to pay cash. But it was not accepted. I was told to pay it in the treasury and produce the receipt. I refused. I was directed to the FAA, a Joint Secretary to the Government of Kerala. She also parroted the PIO’s words. On refusing to pay by any mode other than cash, she simply directed the PIO to provide the copies free of cost. I accepted it and immediately submitted a complaint at the Chief Minister’s Grievances Cell functioning in the same office. Nothing happened. Even under the RTI Act the only information that was provided was that it had been forwarded to the GAD.

 

4.      Without going into details let me list some more examples:

(a)   The Office of the District Collector did not have information about 2 touch screen kiosks installed in its premises, not even the purpose for which they had been installed. A third one was made functional for checking one’s data in the electoral rolls.

(b)   The District Collector is the Chairperson of the Palakkad Indoor Stadium Complex Society established in 1994. In 2010 this was left in limbo and a new society was formed as Palakkad Indoor Stadium Society. Land was handed over to the society for construction of an indoor stadium and the construction began but was left incomplete. Under RTI Act it was revealed that (i) sanction for construction had not been accorded by the local self governing body, (ii) the estimated cost was Rs 13.25 Crores, (iii) expected completion date was 31/12/2013, (iv) expenditure of Rs 6.2 Cr had been incurred till 31/03/2013 when work had stopped. However, a gym had been allowed to function there illegally in connivance with some corrupt public servants. Though the gym has been closed now, no action has been taken against the defaulting/corrupt public servants. A complaint with the District Collector is pending action.

(c)    Two hoardings had been displayed in front of a girls’ school in Palakkad. They alleged corruption by the MLA in the digitalization of the school. The photographs of these hoardings were sent to the District Collector for action. It was forwarded to the Deputy Director of Education who submitted a report that during his visit he did not find the hoardings. This preposterous report was accepted by the District Collector.

(d)   Plachimada, in Kerala gained international media attention due to the struggle of adivasis against Coca Cola which had contaminated their fresh water sources and depleted the ground water. In an incidence of destruction of houses of two adivasi families there, coming under the purview of the SC/ST (Preventions of Atrocities) Act, neither the DC nor the District Police Chief had taken any action mandated by the Act.

(e)   Orders were being circulated by the General Administration Department of the Government of Kerala to every office that receipts should be provided to all citizens submitting documents to the office. This was not being followed. In 2009, two additional paragraphs were found introduced- one specifying the format of the receipt and the other the size of a board on which this information, along with the format of the receipt, had to be displayed. Complaints about non-compliance followed by applications under the RTI Act had the DC’s Office providing receipts but the board has still not been displayed. The reason once given by the DC, in a file noting, is that it will be complied with when funds are allotted for it.

(f)     In 2018 there were floods all over Kerala. Application under the RTI Act revealed that the Executive Engineer, Irrigation Division, Malampuzha had been writing to the DC/RDO Palakkad since 19/07/2018 about the dam getting filled. By 04/08/2018, it was only 0.03 meter short but only spillways were opened to some extent. On 09/08/2018, the water level had risen 15 cms above the permitted maximum level when the shutters were raised by 100 cms each. People who were affected by the flood lost much more than money could buy, like professors losing their handwritten notes, and improved over the years, used for teaching. It was certainly a heavy price to pay for the incompetence and indifference of the district administration.

(g)   Post election of 2014, information was sought on the dues from candidates towards cost of anti-defacement effort of the District Collector in his role as the District Electoral Officer. It was provided as Rs 2,78,812/- from various parties/candidates. However no information had been provided about any recovery made. (Graffiti/banners put up by candidates/parties in public places illegally is called defacement, defacing the defacement by blackening it, is called anti defacement)

(h)   During the 2019 elections, the CEC had introduced an app called eVigil to report complaints about election code violations. I tried it but failed because the GPS was not working, though it was working perfectly with Googlemaps. However, complaints were submitted through emails to dcpkd@kerala.nic.in, pkd-colt.msg@kerala.gov.in,  pkd_collectorate@messaging.kerala.gov.in,  contactus@ceo.kerala.gov.in and complaints@eci.gov.in about the compound wall of an extension of my plot being defaced with posters of one of the candidates. In the complaint I had specifically mentioned that if they were not removed and the wall cleaned within 48 hours I would clean them and the cost will have to be reimbursed  along with compensation of Rs 50,000/-.  No responses from any except from ECI and that too only a cryptic ‘we have raised a complaint to the concern officers through our NGS portal’. They did not disclose who these concerned officers were even to an application under the RTI Act. Persistently following up the complaint resulted in the Election Department of the Government of Kerala providing me a copy of a letter dated 19/05/2023 from the District Collector making a false claim that as soon as the complaint was received the anti-defacement squad had removed the posters and cleaned the wall, when it had actually been done by me after the expiry of 48 hours of my email.

5.      If this is the state of affairs in the case of an office headed by a member of the IAS, one can well imagine the condition in other offices/institutions of government. Or, may be, it could even be that the failures are due to the office being headed by a member of the IAS. The members of this cadre indeed have a reputation of their own. And one of them is that India is doing well in the areas of space and atomic energy only because these are two areas where the members of the IAS do not have any control.

I have read an article, dated 02/11/2015, by Sam Pitroda ‘When Rajiv Gandhi fired two babus’ at https://www.outlookindia.com/amp/story/books/when-rajiv-gandhi-fired-two-babus-news-295761. He had written:

…he(water secretary) and the agriculture secretary were bureaucrats, not specialists. They didn't get into the details. They were responsible for planning, but they didn't feel that a technical understanding was essential for the planning function, or at least for their function. In their presentation to Rajiv they had shown a kind of feel-good, advertisement-type video on India's water and food production—pretty generalities with little substance. Rajiv was a nuts-and-bolts kind of guy. I understood how those presentations must have infuriated him. No wonder he had stopped them midway and fired them.

to be continued..

 

P M Ravindran/ raviforjustice@gmail.com / 12 Feb 2024

 

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