This part begins with Palat Mohandas, 1st Chief Information Commissioner (CIC) of Kerala State Information Commission (KSIC), whose manipulations started with his appointment as CIC. He was Chief Secretary to the Government of Kerala when the Right to Information Act (RTI Act) came into force on June 15, 2005. The law had provided for suo moto disclosures, appointment of information commissioners and notification of the rules within 120 days of the law coming into effect, that is, by Oct. 12, 2005.

In his eagerness to grab the post for himself, forgetting that he was due to retire only towards the end of the year and dumping Sec 15(6) of the RTI Act, he got himself appointed as 1st CIC of the KSIC. When the threat arose of the matter being taken to court on grounds of violation of Sec 15(6) which mandated that the IC could not hold any other office of profit, the appointment was cancelled.

But implementation of the Act was held in limbo till Dec. 19, 2005 when the KSIC was constituted through a gazette notification. The notification provided for the CIC and five ICs, of which the CIC and one IC were appointed with effect from Dec. 21, 2005. No prize for guessing who the CIC was! The appointment of the other ICs was left to the new government that was to be sworn in May 2006. This was in keeping with the bonhomie that prevails between political parties, irrespective of the colour of their flags and whatever they do to impress the public.

Now as per data regarding the number of complaints /appeals registered and disposed of as on Dec. 31, 2006 and Jan. 22, 2007, the total complaints /appeals disposed from Jan. to Dec. 2006 was 120/50 and from Jan. 2006 to 22 Jan. 2007 was 123/52. This means that only 3 additional complaints and 2 additional appeals were disposed of during the period Jan. 1, 2007 to Jan. 22, 2007. The three additional complaints disposed of are one each of June, Aug. and Sept. 2006 and the 2 additional appeals are of Oct. and Nov. 2006.

Two issues need to be highlighted here: One, in Jan. 2007 there were 4 information commissioners, including the CIC, posted in the Commission. Two, the cases, whether complaints or appeals, were not disposed of on first-come first-served basis. For 2006, it works out to about 45 complaints /appeals per IC (including the CIC). And that works out to approximately Rs 80,000/- per complaint /appeal disposed, presuming an expenditure of Rs 1.5 crores. (Exact figures are not available for that year but the expenditure was Rs.116.18 lakh and Rs. 265.44 lakh for financial years 2007-08 and 2010-11 respectively.) Apart from the arbitrary manner of disposal of cases, the failure of the law makers to prescribe a time limit for disposal of each case by the ICs is also a matter that should agitate the people.

That quasi-judicial organisations are constituted and tasked in such a manner that they merely turn out to be rehabilitation centers for chosen bureaucrats to enjoy life at tax payers’ cost is an open secret. Here are some instances.

The CIC and other ICs of the KSIC conducted a sitting at Palakkad on Feb. 19, 2007. The number of cases (complaints /appeals) heard: only 5. The hearing was conducted behind closed doors with only parties to each case being present in their turn. This was followed by a press conference addressed by the CIC and attended by the other ICs. And in less than two hours, all of them were free to enjoy their visit to Palakkad with its tourist spots like the Malampuzha Dam, Rock Garden and Tipu Sultan’s fort!

This writer was naturally agitated as a few of my own appeals had been pending with the Commission, without response. I submitted an application to the PIO of KSIC for information on the details, including dates of filing of complaints and appeals considered by the Commission during its sitting at Palakkad, details of other complaints and appeals from Palakkad pending with the Commission and the cost to the exchequer for the hearing at Palakkad.

Needless to say, not even the dates of filing of complaints / appeals taken up for hearing at Palakkad were provided by the PIO. The first appellate authority (FAA) corrected that mistake and my worst fears were confirmed – the complaints /appeals taken up for hearing were filed between Aug. 14, 2006 and Oct. 16, 2006, whereas one of my appeals of July 17, 2006 had not been taken up. Clearly, the KSIC was not taking up cases on first-come first-served basis when there was no reason to take up cases out of turn. But even the FAA did not provide the info about cost!

One fallout of the above pursuit of information was that the KSIC issued a letter on Oct. 5, 2007 addressed to the PIO, Office of the RDO, Palakkad directing him not to accept any petitions under the RTI Act, but request the petitioners to send them to the public authorities directly. This is in clear violation of Sec 5 of the RTI Act and also the clear directions issued by the competent authority through two circulars dated Oct. 30, 2006.

The application to get a copy of the file notings leading to the issue of this letter has proved futile. In fact, periodic applications under the RTI Act to get the status of specific appeals submitted and pending with the Commission was also futile except in one case when the PIO provided the shocking information that appeals could also go missing from the Commission.

Now, it is logical that one submits the copies of the application, response of the PIO, first appeal and the response of the FAA along with the 2nd appeal to the information commission. But when the 2nd appeal is against the PIO/FAA of the Commission itself, is there need to re-submit copies of these documents which are already with the Commission? Nobody in his senses can deny that it would be mere wastage of stationary and nothing more. But, the KSIC will dismiss the appeal on that ground also.

Here are two typical responses from the PIO of the KSIC to certain information sought:

Application dated May 21, 2015: How many cases are pending in the courts, as on 30 Apr 2015, against the decisions of the information commissioners? Provide details to include the address of the court, case number, the KSIC File and appeal numbers, the name of the appellant, the date of decision, penalty /administrative action imposed /recommended, the name of the PIO/FAA who has approached the court, his/her designation and the address of the public authority, present status.

Response of PIO, dated June 3, 2015: A suit register is maintained in State Information Commission. Information as sought by you is not consolidated and maintained.

The points to be noted here are: one, the KSIC would be the 1st respondent in any appeal against the order of the Commission; second, the penalty is imposed on the defaulting PIO and he has to pay the penalty in his individual capacity. As per a report in the media, the High Court of Punjab and Haryana had ruled that if the Public Information Officer (PlO) of a department has been penalised by a State Information Commission on account of withholding information the officer cannot appeal against the order through the state. The court has held that the PIO will have to approach the court in personal capacity.

Application dated Nov. 30, 2015: Provide an example of the pay order mentioned in 3(2)(d) and 4(3) of Kerala Right to Information (Regulation of Fee and Cost Rules), 2006.

Response of PIO, dated Dec. 15, 2015: The inforamtion sought by you doesn’t come under Sec 2(f) of the RTI Act.

Moreover, the public authorities in Kerala have not been accepting the Indian Postal Order, which is a Pay Order, and the Commission has not been acting on complaints in this regard. Hence the clarification sought from them.

Application dated Nov.30, 2015: The list of the 5 oldest complaints /2nd appeals pending with each information commissioner as on 30 Nov 2015. Provide details to include the appeal numbers, date of filing the appeal, the name of the appellant, the public authority involved.

Response of PIO, dated Dec. 15, 2015: Information has not being maintained and kept in this public authority as pointed out in this manner.

The point to note here is that the watchdog of transparency doesn’t track the progress of its own primary task. An associated issue is that though the information was not asked in any prescribed format the public authority was bound to give it in any format prescribed by the applicant because Sec 7(9) of the RTI Act provides that ‘An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question.’

Palat Mohandas, CIC, had earned notoriety by deciding that the office of the Finance Minister (and by logical extension any other minister) of Kerala is not a public authority (See proceedings of SIC in Complaint CP No. 882/2007/SIC dated March 31, 2008).

His decision, dated Dec. 21, 2007 in AP 452/2007/SIC is another of that genre exposing the stupidity (or arrogance) of public servants appointed to important public offices at exorbitant cost to the exchequer. Part of this, about fees paid through court fee stamp and cost paid through treasury, as per the then valid rules, being deemed not paid, has been discussed previously.

An issue that needs to be highlighted here is the interpretation of Sec 5(2) of the RTI Act, which mandates that ‘every public authority shall designate an officer, within one hundred days of the enactment of this Act, at each sub-divisional level or other sub-district level as a Central Assistant Public Information Officer or a State Assistant Public Information Officer, as the case may be, to receive the applications for information or appeals under this Act for forwarding the same forthwith to the Central Public Information Officer or the State Public Information Officer or senior officer specified under sub-section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be .’

Now, there is no doubt that even a Village Office is a public authority. The question then arises: can the Village Office designate an APIO at all the sub divisional levels? No! So the first part of the interpretation has to be that every public authority at each sub divisional level should designate an APIO. Next, the law does not limit the task of these APIOs to accepting applications and 1st appeals pertaining to that public authority only. They are implicitly required to accept applications and appeals to any public authority. While wording the clause, one more transaction had been left out, that is payment of the cost of information. It is only in the spirit of the law that this is also collected by the APIO and processed correctly. But when the aim of the public servant is to delay, deny and frustrate the information seeker, does this logic and ‘spirit’ of the law matter?

On Dec. 18, 2007 the CIC came to Palakkad to participate in a function at Palakkad Municipal Town Hall Annex. Thirteen activists, including retired professors, representatives of consumer rights organizations and farmers’ organizations staged a peaceful protest outside the venue, holding banners with slogans like ‘Save RTI-Sack CIC’. They were all arrested and falsely implicated in a criminal case at the behest of the CIC. The case was finally over in Dec 2009 with all activists acquitted despite the efforts of the police to rope in the gardener and security guard of the premises to provide false testimonies.

If the CIC could be so treacherous, the less said about his colleagues the better. And, for the record, none of their successors have been any better.

Copies of a complaint submitted to the Governor, Kerala, on Nov. 7, 2007 is available at http://blogs.rediff.com/pmravindran/2007/11/27/sack-the-chief-information-commissioner/

Another submitted to the Chief Minister on Nov. 22, 2011 is at

http://raviforjustice.blogspot.com/2011/11/chief-ministers-public-contact-program.html

On following up the latter persistently, a letter was received from the General Administration Department stating that the complaint had been forwarded to the Secretary KSIC for necessary action as the Commission being a Constitutional body (what?) the government could not interfere in its functions.

This was criminal abdication of responsibility because Sec 27(2)(e) and (f) of the RTI Act clearly empowers the appropriate government to make rules to provide for the procedure to be adopted by the Commissions for deciding appeals, and also any other matter which is required to be, or may be, prescribed. It may be recollected that in Uttar Pradesh, the CIC, M.A. Khan, who had been a former high court judge, was removed by the then government headed by Ms. Mayawati.

(To be continued…)