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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