RTI-EXPOSING THE IDIOTS AND TRAITORS AMOUNG PUBLIC SERVANTS

-P M RAVINDRAN, raviforjustice@gmail.com, http://raviforjustice.blogspot.in, 28 Feb 2018

PART 1- INTRODUCTION

Save Right to Information Campaign-Mission Statement:

Save right to information. Use Right to Information Act.

Get information or......
Expose at least three idiots/traitors* amoung public servants!
1. The Public Information Officer
2. The First Appellate Authority (and the Head of the Public Authority, where the head of the
public authority is not the FAA!) and
3. The Information Commissioner

* An idiot is one who does not know the job s/he is getting paid to do and a traitor is one who
knows it but does not do it!

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.

Firstly, let us analyze what are the strong points of this law.

The purpose of this law, as stated in its preamble, is:

… whereas democracy requires an informed citizenry and transparency of information

which are vital to its functioning and also to contain corruption and to hold Governments
and their instrumentalities accountable to the governed;

And whereas revelation of information in actual practice is likely to conflict with other
public interests including efficient operations of the Governments, optimum use of limited
fiscal resources and the preservation of confidentiality of sensitive information;

And whereas it is necessary to harmonise these conflicting interests while preserving the
paramountcy of the democratic ideal;

Now, therefore, it is expedient to provide for furnishing certain information to citizens

who desire to have it.
And, no doubt, there can be no doubt on the aim. It is as clear as clear can be!

The next is, the law has identified certain information that the law makers have identified as
would be of common interest to all its citizens and has provided for public authorities to disclose
them pro actively. That is there is no need for citizens to apply for them or get them on payment
of prescribed cost. This information is required to be disseminated through all possible means at
the disposal of the public authority, right from collecting them in a file and retaining it with a
designated public servant to enable members of the public to refer it whenever they choose to,
to publishing them on their websites. This information, listed under 12 subparagraphs under Sec
4(1)(b) of the Act, includes the organization structure, tasking of employees, records maintained
by each one of them, their pay and allowances etc and was required to be published within 120
days of the enactment of the Act, that is from 15 Jun 2005! For ease of understanding, it is
necessary to state here that none of the public authorities have complied with this requirement
till date, except the Central Information Commission. Obviously, there could be more exceptions
that I have not come across but this assertion is based on a sufficiently large number of websites
of public authorities browsed, right from the website of the President of India to the Kerala State
Road Transport Corporation and Palakkad Municipality.

Taking cognizance of the tendency of our ‘public servants’ to send the public on wild goose
chases, the law makers have also provided two important clauses, Sec 5(2) and 6(3). The former
mandates designation of Assistant Public Information Officers at all public authorities at sub
divisional level to accept applications and appeals from the public and forward them to the
concerned Public Information Officer(PIO), First Appellate Authority (FAA) and the Information
Commission (IC) as the case may be. The latter, that is Sec 6(3), mandates that the Public
Information Officers who receive the applications, if they do not have the information sought,
either partly or completely, they have to forward the application(s) to the Public Information
Officer of that public authority who has the information, to provide that missing part. The most
important point about this clause is that there is no limit on the number of public authorities to
whom this application has to be transferred because as per Sec 13 of the General Clauses Act,
1897 (still in vogue!) singular also implies plural. This has been amply clarified by Shailesh
Gandhi, information Commissioner with the Central Information Commission, in his decision in
Appeal No CIC/SM/A/2011/000278/SG dated 16 Jun 2011. He has also quoted sufficient number
of case laws from high courts and even the Supreme Court to reinforce it. But sad to say even
the current Chief Information Commissioner of the Kerala State Information Commission and
former Director General of Police, Vinson M Paul, has been going around telling PIOs that they
need to provide only information held with them and for information not held with them they
should tell the applicant to apply to concerned public authorities separately! On providing a
copy of the Shailesh Gandhi’s decision of 16 Jun 2011, his first response was that the decisions of
the Central Information Commission were not applicable to him and on querying about the apex
court judgments quoted therein, he had no answer! But the fact remains the law stands
subverted by the Chief Information Commissioner himself in Kerala. (To be true to him, he is not
the only information commissioner to subvert it. More on this, later.)
The third important provision of the law is Sec 19. It provides for a complaint against non receipt
of any decision from the PIO or first appeal against the decision of the PIO to an authority
superior to the PIO, designated as the FAA and a final appeal to the IC. And as per Sec 19(5), in
all appeal proceedings the onus to prove that a denial of a request was justified shall be on the
PIO who denied the request. This Section, 19, also provides for the information commission to
compensate the complainant for any loss or other detriment suffered(Sec 19(8)(b)) and also to
impose any of the penalties provided under this Act (Sec 19(8)(c)). The failure to comply with
these provisions of the law has, needless to say, totally subverted it. Also, the failure to impose
the mandated penalties has caused considerable loss to the exchequer. This scam, let us call it
RTIgate, has not only subverted the law, caused heavy loss to the exchequer but also given
another avenue for corruption which the law was intended to curb! The how of it shall be
explained later. For now it will suffice to say that RTIgate could be a scam bigger than 2G,
Coalgate and Vadragate put together!

The tooth of the Act is in Sec 20 which mandates that a penalty of Rs 250/- per day of delay be
imposed on the defaulting PIO. This is subject to a maximum of Rs 25000/-. That is, if the PIO,
who is required to provide the information within 30 days of receipt of the application, does not
provide it within that period, any period after that, till the complete information he has is
provided is counted as delay. And if this delay is 100 days or more he has to be penalized with
the highest amount permitted, that is Rs 25,000/-. It is only to help him avoid being penalized to
the maximum extent that a FAA has been designated to consider a complaint or first appeal
against the PIO and take corrective action where required. But unfortunately, in most of the
cases, the FAAs are merely seen parroting the words of the PIO, or defending them irrationally,
leading to an appeal with the information commission and the delay extending to more than 100
days.

Sec 20 (1) of the RTI Act, states as follows:

Where the Central Information Commission or the State Information Commission, as the
case may be, at the time of deciding any complaint or appeal is of the opinion that the
Central Public Information Officer or the State Public Information Officer, as the case may
be, has, without any reasonable cause, refused to receive an application for information
or has not furnished information within the time specified under sub-section (1) of section
7 or malafidely denied the request for information or knowingly given incorrect,
incomplete or misleading information or destroyed information which was the subject of
the request or obstructed in any manner in furnishing the information, it shall impose a
penalty of two hundred and fifty rupees each day till application is received or
information is furnished, so however, the total amount of such penalty shall not exceed
twenty-five thousand rupees:

Provided that the Central Public Information Officer or the State Public Information
Officer, as the case may be, shall be given a reasonable opportunity of being heard
before any penalty is imposed on him:
 Provided further that the burden of proving that he acted reasonably and diligently
shall be on the Central Public Information Officer or the State Public Information Officer,
as the case may be.

I have added the emphasis to highlight the three important components of this Section. One, the
reasons for the default are independent of each other and the defaulting PIO can be penalized
for default on any one of the grounds listed. That is a PIO can even be penalized only for the
mere delay in providing the information sought. High Court of Punjab and Haryana, in its
decision dated 8 Feb 2008 in C.W.P. NO. 1924 OF 2008 has clarified this as stated below.

A plain reading of sub-section (1) of Section 20 of the Act makes it obvious that the
Commission could impose the penalty for the simple reasons of delay in furnishing the
information within the period specified by sub-section (1) of Section 7 of the Act.
According to sub-section (1) of Section 7 of the Act, a period of 30 days has been provided
for furnishing of information. If theinformation is not furnished within the time specified
by sub-section (1) of Section 7 of the Act then under sub-section (1) of Section 20 of the
Act, public authorities failing in furnishing the requisite information could be penalised.

Two, if any one of the reasons for the default has been established the information commission
has to mandatorily impose the penalty (see the term used is shall and not may!) at the
prescribed rates. Now the question arises that if there is factual delay, as evident from the data
on record, can the information commission have an opinion that there has been no delay? And,
in the opinion of the information commission, can there be any reasonable ground for the PIO to
not accept an application? Absolutely no, never! (Please recollect Sec 6(3) of the Act which
mandates that the PIO shall transfer the application or such part of it as may be appropriate to
that public authority, which is holding that information!)

The third component is the opportunity to being heard to be given to the defaulting PIO before
imposing the mandated penalty. Here again there are two factors to be considered:

(a) The sequence of events. That is, the information commission has to establish the
default, the reason for the default and the scope for imposing the mandated penalty
before the need arises to give the opportunity to being heard to the defaulter. This
obviously can be done by just a cursory study of the documents on record as they are
related to the date of receipt of application by the public authority and the date of reply
by the PIO and the contents of that reply.
(b) The nature of hearing. Nowhere does the clause mention that the hearing has to be
personal and one to one (between the information commissioner and the PIO). It could
as well be a legally valid affidavit taken on record. This is important because calling
defaulting PIOs for hearing, even through video conferencing, is a time consuming and
costly affair and both these are at the cost of the exchequer for the PIOs and avoidable
for the appellant. Incidentally, even when the law mandates opportunity to being heard
be given to the defaulting PIO only, information commissions can be seen calling PIOs
 and FAAs or even their representatives for an initial hearing and then, in rare cases,
calling for explanations from the original defaulting PIO for not penalizing!

A corollary to the third component is the provision that the burden of proving that he acted
reasonably and diligently shall be on the Public Information Officer. This is of course only a
reiteration of Sec 19(5) of the RTI Act. While Sec 19(5) simply states that the onus to prove that a
denial of a request was justified shall be on the PIO, this proviso to Sec 20(1) makes it mandatory
for the PIO to prove that he had acted reasonably and diligently too.

The next strong point of this law is that it has over riding effect over other laws (Sec 22). That is
no other law can be quoted to undo the purpose of this law and its implementation. Even in the
case of intelligence and security organizations which are exempted from this law, Sec 24 of this
law states that in matters of human rights violations and corruption, available information has to
be disclosed; and in the matter of human rights violations permission from the information
commission has to be taken before disclosing such information and to cater for it an additional
15 days have been provided for providing such information.

Overall this is as good a law as could be legislated, given our inheritance of a colonial
administration and judiciary that have withstood reforms for over half a century even after
adoption of a democratic and republican form of government. There are a few short comings
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. Details in the
next part….!