Having discussed the strong points of the law, we shall analyse the clauses that have been exploited as loopholes. There are some shortcomings, but whether these are deliberate or not cannot be judged because the way it has been implemented suggests that some loopholes were left deliberately and some unintentionally.

Vagueness is not an attribute that gels with good laws. The RTI Act suffers from this malady at a few places. For instance, at Sec 2(h)(d) where under the definition of public authority the term ‘substantially’ financed is used in the cases of certain organisations, including NGOs, which are owned, controlled or financed (directly or indirectly) by the government. There are a large number of cases where educational institutions, cooperative 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 Mathrubhumi daily (Jan. 18, 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 (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 (I make 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 Dec. 21, 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 July 17, 2006 and the cost was paid on Sept. 12, 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. Three clauses have contributed to this situation.

First, 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 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 wrong there, but, as they say, the devil is in the details.

Politicians being familiar mostly, if not only, with their bureaucrats and the shortlisting being done by these very same bureaucrats, it was only to be expected that most appointments as information commissioners would be taken away by this class, forgetting the fact that this class 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. Not to mention the fraternity spirit that drove them during their days in office!

Last 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 stated earlier, this is a stand-alone 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. 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 of 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 information sought needed to be disclosed. Going through the reply by the PIO would then establish if the 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, what I would include as the last but not the least important ‘glitch’ is the provision for 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 (Sec 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 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 straightforward provisions in the law, the law continues to be subverted with impunity, which speaks volumes for the incompetence of the authorities empowered to use them. As a fact on record, in its 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 was Chief Minister. (It was reported in the media that he committed suicide within a year of removal).

In Kerala, an IC, K. Natarajan, who had been a DIG 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 office at tax payers’ expense. 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.

(To be continued…)