RTI: Exposing the traitors among public servants - I
by P M Ravindran on 27 Mar 2018 2 Comments

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 (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.


It is our contention that the traitors among public servants include [1] The Public Information Officer, [2] The First Appellate Authority (and Head of the Public Authority, where the head of the public authority is not the FAA, and [3] The Information Commissioner.


Let us analyze what are the strong points of this law. Its purpose, 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, there can be no doubt on the aim. It is as clear as clear can be!


The law has identified certain information that the law makers have identified as would be of common interest to all citizens and has provided for public authorities to disclose them proactively. 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 sub-paragraphs under Sec 4(1)(b)  of the Act, includes the organisation 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 (from 15 Jun 2005). No public authority has complied with this requirement till date, except the Central Information Commission. There could be more exceptions that I have not come across, but I have browsed a sufficiently large number of websites of public authorities, 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 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. Sec 6(3) mandates that Public Information Officers who receive applications, if they do not have the information sought, either partly or completely, have to forward the application(s) to the Public Information Officer of that public authority who has the information, to provide the 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 quoted sufficient number of case laws from high courts and even the Supreme Court to reinforce it.


However, 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 Shailesh Gandhi’s decision of 16 June 2011, his first response was that the decisions of the Central Information Commission were not applicable to him, but fell silent when asked about the apex court judgments quoted therein. Thus, the law stands subverted by the Chief Information Commissioner himself in Kerala (though he is not the only information commissioner to subvert it).


Another 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. 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 totally subverted it. Also, the failure to impose the mandated penalties has caused considerable loss to the exchequer. This scam, let us call it RTI-gate, has also given another avenue for corruption which the law was intended to curb, as shall be explained later.


The tooth of the Act is in Sec 20 which mandates a penalty of Rs 250/- per day of delay on the defaulting PIO, subject to a maximum of Rs 25,000/-. Thus, 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 - Rs 25,000/-.


To help him avoid being penalized to the maximum extent, an FAA has been designated to consider a complaint or first appeal against the PIO, and take corrective action, where required. Unfortunately, in most cases, the FAAs merely parrot the words of the PIO, or defend them irrationally, leading to an appeal with the information commission and delay extending to more than 100 days.


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

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 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 Rs. 250/day till application is received or information furnished; however, the total amount of such penalty shall not exceed Rs. 25,000/-.


Provided that the Central Public Information Officer or 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.


Three important components of this Section deserve notice. 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. A PIO can even be penalized only for the mere delay in providing the information sought. The High Court of Punjab and Haryana, in its decision dated 8 Feb 2008 in C.W.P. NO. 1924 OF 2008 clarified this:


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 the information 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 (the term used is shall and not may) at the prescribed rates. So 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 (recollect that Sec 6(3) of the Act 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 of being heard to be given to the defaulting PIO before imposing the mandated penalty. Here again there are two factors to be considered:


1] 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 of being heard to the defaulter. This can be done by 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 contents of that reply.


2] The nature of hearing. Nowhere does the clause mention that the hearing has to be personal and one to one (between information commissioner and 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. Incidentally, even when the law mandates opportunity of 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 this is the provision that the burden of proving that he acted reasonably and diligently shall be on the Public Information Officer. This is 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 organisations 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 seven decades after adoption of a democratic and republican form of government.


(To be continued…)

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