RTI-EXPOSING THE IDIOTS AND TRAITORS AMOUNG PUBLIC SERVANTS

-P M RAVINDRAN, raviforjustice@gmail.com, http://raviforjustice.blogspot.in, 02 Mar 2018

PART 2- GLITCHES

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.

In the first part of this series an attempt was made to have a bird’s eye view of the strong points
of the law. Here the effort is to analyze the clauses that have been exploited as loop holes. 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.

Vagueness is not an attribute that gels with good laws. The RTI Act suffers from this malady at a
few places. The first such occurrence is at Sec 2(h)(d) where under the definition of public
authority the term ‘substantially’ financed is used in the cases of certain organizations, including
NGOs, which are owned, controlled or financed (directly or indirectly) by the government. There
are a large number of cases where educational institutions, co operative societies and even
airport operators have argued that they do not come under the purview of the Act and the
question of substantially financed had been the ground of contention. Unfortunately the
standards have still not been prescribed. One thumb rule set out by the apex court is the answer
to the question whether the survival of the entity would itself be at stake if denied the financial
support from the government. However, as per a report in the Mathrubhumi daily of 18 Jan
2015, activists in Kerala were agitating about a single bench decision of the Kerala High Court
that government aided private schools would not come under the purview of the law for
transparency! (For the less informed, the salary of the teachers are paid by the government in
these ‘aided’ schools!)

The other glitch is more substantial. It’s got to do with the delegation of rule making powers to
state governments and even to the chief justices of the supreme court and high courts, through
the definition of competent authority in Sec 2(e) and prescription of powers to make rules in Sec
28. Though it is more in keeping with the federal nature of our governance, in retrospect it
definitely looks unwarranted because it has been one of the most abused provisions of the law.
The worse thing is it all began with the courts! Two things need to be highlighted here. One,
while the Central Government and almost all the state governments prescribed an application
fee of Rs 10/- and Rs 2/- as the cost of an A4 size page of information (here I have made a
distinction between fee and cost for the amount paid with the application and the amount paid
for information provided though the term fee is used commonly in both the Act and the Rules),
the courts prescribed an application fee of Rs 500/- and Rs 5 per page of info. Adding insult to
injury, the courts also introduced a fee for the 1st appeal when the 1st appeal itself has been
provided merely to help the public authority to undo any deficiencies in the response/actions of
their PIO! The simple solution would have been to cap the fee and cost at the rates prescribed
by the Central Government!

This glitch has been abused in another way too. And that is the non-standard modes of payment
of fees/cost. Typical case is of the Kerala Government making one set of fee/cost and modes of
payment applicable to its departments and another set for others! While cash, court fee stamp,
deposit in treasury, demand draft, banker’s cheque or pay order were prescribed for fee and all
of them less court fee stamp for cost, for the departments of the government, court fee and
deposit in treasury were not applicable for payment of cost for others. But it had not been so
initially when the Kerala Right to Information (Regulation of Fee and Cost Rules), 2006 was
notified in Extraordinary Gazette No 893 of 18 May 2006. The changes were effected through an
amendment to these rules through a notification in the Kerala Gazette No 2290 of 22 Dec 2007!
There were two changes that were introduced: one, it made the rates of cost prescribed in its
Rules applicable only in cases where ‘no other fee is prescribed’ and two, the modes of payment
of cost were restricted to cash and Demand Draft/banker’s cheque/Pay order for public
authorities other than government departments! And in a weird case, Palat Mohandas, 1st Chief
information Commissioner of Kerala State Information Commission sitting in a bench with
another information commissioner, V V Giry, decided on 21 Dec 2007 that the fee paid through
court fee stamp and cost paid through treasury to the Kerala State Pollution Board should be
deemed not paid! The treachery may not be evident until it is clarified that the fee was paid with
the application on 17 Jul 2006 and the cost was paid on 12 Sep 2006 based on the then valid
Rules. The argument of the information commissioners was that the public authority has the
prerogative of deciding the mode of payment of fee and cost! That it is the prerogative of the
applicant to choose the mode of payment has been reiterated by the commission in many of its
subsequent decisions. This case shall be discussed in some more detail later.

The third glitch takes the cake and makes one wonder whether the whole law had been enacted
to pull wool over the eyes of the public and essentially create a rehabilitation center for retiring
bureaucrats, of the ‘favorite’ kind, to spend another five years of their retired life in gay abandon
at the cost of the tax payer! There are three clauses that have contributed to creation of this
situation. Firstly, the selection of information commissioners is by a committee comprising the
Prime Minister (Chief Minister at State level), the Leader of the Opposition (LoP) in the Lok
Sabha (Legislative Assembly for States) and a cabinet minister. Interestingly, the LoP is just a
scare crow or a mannequin as the selection need not be unanimous. Next is the qualitative
requirements prescribed by Sec 12(5) and 15(5) for central and state information
commissioners respectively-persons of eminence in public life with wide knowledge and
experience in law, science and technology, social service, management, journalism, mass media
or administration and governance. Nothing is wrong there, apparently. But, as they say, the devil
lies in the details. The politicians being familiar mostly, if not only, with their bureaucrats and
the short listing being done by these very same bureaucrats, it was only to be expected that
most of the appointments as information commissioners would be taken away by this class,
forgetting the fact that this is a class that should have been barred from such appointments due
to ‘vested interests’. Situations where they could be called upon to disclose their own
controversial records could not be ruled out and in such cases subversion of the law was only to
be expected. And not to mention the fraternity spirit that had driven them during their days in
office! And lastly, is the equation of CICs and ICs with Chief Election Commissioner/Election
Commissioner/Chief Secretary to the State Government making it such a lucrative position that
retiring bureaucrats would fall over one another to grab it. And it is this provision that actually
leaves no room for doubt that these commissions have been constituted to rehabilitate retiring
bureaucrats. This needs to be analysed in a little more depth.

If I say the job of an information commissioner is simpler than that of a munsif that would be an
understatement. As has been brought out earlier, this is a standalone law and if there is any
conflict with any other law this is the law that would prevail. So the information commissioners
need know nothing more than this law and the rules made under it by the competent authority.
Next, is the procedure required to be followed by the information commissioner for taking the
final decision. And that too is so simple that one may rightly ask why the government is
spending so extravagantly on the pay and perks of these quasi judicial authorities! The
complaints are so simple that they can be disposed off with a cursory look. So let us take the
case of appeals. Copies of the application, reply by the PIO, first appeal, reply by the FAA all form
part of the documents submitted as the 2nd and final appeal. Of relevance are only the
application and the reply from the PIO. A simple reading of the application should suffice to
decide what all information sought needed to be disclosed. Going through the reply by the PIO
would then establish if these information had been provided or not and if provided whether it
was within the prescribed time frame or not. If not provided completely or provided with delay,
the reason has to be ascertained from the PIO. And this reason has to be a legally valid one and
not something irrelevant like the originally designated PIO being on leave or the file being with a
superior authority etc. And there is the decision staring you in the face! But it is this simple
procedure that has been turned into something that is preposterously illogical and illegal too.

What is happening is that after months, if not years, of receipt of the appeal the information
commissioner decides to conduct a hearing with anybody from the public authority and the
appellant or his representative, which is both unwarranted and illegal. Unwarranted, because,
the lapses of the PIO is and has to be absolutely clear by a simple perusal of the application and
his reply, as explained earlier. Illegal because, once the default has been established it is
necessary to penalize the defaulter, and as demanded by natural justice, only such defaulter has
to be given an opportunity to being heard before the penalty is imposed. So conducting a
hearing with anybody else from the public authority is only a waste of time and resources, at the
cost of the tax payer! This is because the public servants from the public authority obviously
participate in it and claim allowances as applicable while the appellant obviously does it at his
own cost! And, often the notice period do not even provide for the time required to arrange the
move! (In one of my own cases, the Central Information Commission ordered the Commission
itself to compensate me for my move to a Video Conferencing facility in a neighbouring district
after the respondent public authority (in this case the Delhi High Court) failed to send their
representatives for the hearing citing lack of adequate notice!)
What follows after this hearing is even worse! After this ‘preliminary’ hearing even when the IC
would direct the PIO attending the hearing to provide the information sought, there would be a
direction for a further hearing with the ‘original’ PIO to decide why mandated penalty should not
be imposed! And, again, quite illegally, no notice of this hearing is given to the appellant nor are
the reasons given by the PIO and the decision of the IC communicated to the appellant! Just
imagine a court declaring an accused person as guilty in open court and then the judge having a
closed door meeting with the (now) ‘convicted’ person and thereafter nobody ever knows what
happened to the final punishment! As an activist working in this area I have openly been
exposing this as an opportunity for corruption wherein the IC can seek and collect a bribe from
the PIO and this amount can even be more than the maximum penalty that could be imposed
under the law and it could depend on the vulnerability of the PIO who may be in a promotion
zone and would not like to spoil his record through an official punishment!

Though this list of glitches cannot be deemed complete, for the purpose of this part of the
exposures, what I would include as the last but not the least important ‘glitch’ is the provision
for the removal of the ICs. Strictly speaking they cannot be considered to be glitches because
they have more to do with the competence of the President of India and the Governors of the
States who have been empowered to remove the ICs even if ‘in their opinion’ they are unfit to
continue in office by reason of infirmity of mind or body (Secs 14(3)(d) of the RTI Act applies to
the President to remove the ICs of the Central Information Commission and 17(3)(d) for the
Governors in the States to remove the ICs of the respective State Information Commissions.)
These provisions are in keeping with the logical empowerment of the appointing authorities to
remove the appointees for proven incompetence/unsatisfactory performance and reflect the
coming of age of our law makers burdened with an undemocratic, illogical and impractical
impeachment procedure for removing incompetent judges or judges with questionable integrity.
But sad to say, even with such simple and straight forward provisions in the law, the law
continues to be subverted with impunity speaks volumes of the incompetence of the authorities
empowered to use them. As a fact on record, in it’s almost 13 years of existence only one
information commissioner has been removed and that was the Chief Information Commissioner
of Uttar Pradesh-Justice M A Khan- when Ms Mayawati had been the Chief Minister! (And it had
been reported in the media that he had committed suicide within a year of that removal!) In
Kerala, an IC, K Natarajan, who had been a DIG earlier with the Kerala Police, was accused of
trying to influence an investigation in a criminal case and was kept away from official work for
nearly half of his tenure, all the while enjoying the perks of his office at the tax payers’ cost, of
course!

Sec 217, 218 and 219 of the Indian Penal Code provide for prosecuting public servants who
falsify records and disobey the law. In the case of ICs, to whom Sec 219 applies, the punishment
could be as much as seven years rigorous imprisonment or fine or both!

In the next part we shall see some cases that will reveal how preposterously, blatantly and with
impunity, this law has been subverted by the very authorities tasked, empowered, equipped and
paid to enforce it!