Some days ago, I received a mail from an RTI activist stating that another RTI activist has been murdered in Gujarat, taking the toll of RTI activists murdered there to eleven. While any crime has to be condemned and murder is the worst, I was left wondering whether the RTI Act was still surviving in Gujarat. The Central Information Commission and the Kerala State Information Commission have murdered the law itself.

Previously, I have shown the modus operandi of the Kerala State Information Commission and the authorities responsible for ensuring that the Commission performs its tasks properly. Things have not been better with the Central Information Commission and the authorities responsible for ensuring that it performs its tasks effectively and efficiently.

The trouble started with the first Chief Information Commissioner (CIC) Wajahat Habibullahh, a former Secretary to the Government of India and member of the Indian Administrative Service (IAS), supposedly the steel frame of government. The case law I am going to narrate will make any thinking citizen wonder if this body should continue at all.

On Aug. 22, 2005 I handed over a complaint (dated Aug. 17, 2005) to the President, National Consumer Disputes Redressal Commission (NCDRC). It stated that the President of the Kerala State Consumer Disputes Redressal Commission (KSCDRC), Hassan Pillai, a former judge of the Kerala High Court, had unlawfully declared holidays for the Commission during summer, similar to the holidays of the high court.

A consumer organization, Consumer Vigilance Center, Thiruvananthapuram, had taken up the matter with the Kerala High Court, where the President filed a false affidavit stating that he had not declared the holidays. He was proven wrong and this was clearly mentioned in the judgment in the case (Consumer Vigilance Center vs. State of Kerala, 2004(3) KLT 1073).

While the holidays were cancelled, no action was taken against the President who was guilty of perjury. In earlier complaints against the Commission, the Government of Kerala took the stand that the administrative control of the state commission was vested with the national commission, hence this complaint was submitted to the national commission on behalf of the Save Consumer Courts Action Council, a collective of consumer organizations in the State.

The complaint was handed over to the President, M.B. Shah, former judge of the apex court, personally and it was accepted after all his queries had been satisfactorily answered. But, no action was taken and no response could be elicited either. So the matter was pursued under the RTI Act. A simple application to provide information on action taken on the complaint got an irrelevant reply that the matter should be taken up with the Government of Kerala.

Since this was certainly not the information sought the matter was taken up with the Central Information Commission. And horror of horrors, a complaint against a delinquent central public authority to the Central Information Commission was forwarded to the Kerala State Information Commission for further action. The matter was taken up with the CIC, Wajahat Habibullahh, through e-mail, and promptly got a reply that the matter will be looked into.  On getting no further communication even after considerable lapse of time, a copy of the complaint was resent to the CIC. Again, it was also forwarded to the KSIC.

Thereafter, a complaint was submitted to the President of India to remove the CIC under the provisions of Sec 14(3)(d) of the RTI Act which states that ‘the President may by order remove from office the Chief Information Commissioner or any Information Commissioner if the Chief Information Commissioner or Information Commissioner, as the case may be, is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body’. Needless to say nothing happened.

(See copy of complaint at

http://raviforjustice.blogspot.com/2012/01/rti-old-application-to-president-to.html)

In the Judges’ assets case also, Wajahat Habibullah flouted the law he was tasked, empowered, equipped and paid to enforce. In the decision of Jan. 6, 2009 in Appeal No CIC/WB/A/2008/00426, it was stated that the full bench of the Commission heard the matter on Nov. 5, 2008, but it was signed by only three ICs including the CIC. Now, the RTI Act doesn’t make any difference between ‘single bench’ and ‘multi bench’ of the Commission. So the lack of confidence of the CIC in dealing with the matter alone should be seen as lack of competence arising from ignorance of the law which he is expected to be totally conversant with.

Even the multi-member bench could only decide that the information sought needed to be provided. They failed to take cognizance of the fact that even if the information was provided on their directions, the period for imposing the maximum penalty of Rs 25,000/- on the defaulting PIO had been long over on March 15, 2008. They also directed the wrong PIO to provide the information sought and not the actual custodian who is the deemed PIO in this case. And this deemed PIO being the Chief Justice of India, it was required that the penalty of Rs. 25,000/- be imposed on K.G. Balakrishnan for failing to provide the information sought within the prescribed period of 30 days, by Dec. 9, 2007.

It would be the height of naivety to believe that the PIO of the Supreme Court Registry was not aware of Sec 5(4) and 5(5) of the RTI Act and could not seek the assistance of the CJI who was the de facto custodian of the information sought. Worse, in spite of the multi-bench decision of the Information Commission, the PIO only sought to prolong the case by appealing to a single bench and later to a division bench of the Delhi High Court. The matter is now pending before the apex court. Knowledgeable citizens ask how the apex court could sit in judgment in a case involving itself as a defendant. But one positive fall out has been that at the initiative of a couple of judges of some high courts, not merely the information sought – whether judges are submitting their property returns to the CJI/CJs of high courts – but the contents of the returns themselves are now available in public domain.

The best decision I have received from an IC is from Annapurna Dixit of the Central Information Commission in Appeal No CIC/OK/A/2008/00766-AD. Through the application on Oct. 1, 2007 I had sought information on the railway over-bridges being constructed in the original Palakkad Division of Southern Railways. The original Palakkad Division had been divided into Palakkad and Salem divisions and the application was submitted to the PIO, Palakkad Division. Suffice to say that the information was not provided in time and quite a bit was provided on May 25, 2009 just one day before the hearing on the 2nd appeal.

The IC while ordering provision of the remaining information and issuing notice to the PIO on imposing penalty, also directed the public authority to pay a compensation of Rs 1,000/- stating, ‘It is the Commission’s considered opinion that ‘public interest’ is central to democracy and the nature of government itself and that the Appellant has suffered detriment in pursuit of an important issue in the interest of ‘general welfare’ and ‘common well being’ in terms of physical and mental harassment which he had to undergo and also of expenses incurred by him on stationery and on secretarial assistance.’ By an adjunct, dated June 16, 2009 to this decision, the IC imposed a penalty of only Rs 7,000/- taking into consideration the period from her decision (dated May 19, 2009, though the 1st hearing was conducted on May 25) to June 16, 2009 (date of hearing on notice for imposing penalty and confirming compliance with earlier decision) though the delay had to be calculated from Nov. 9, 2007 (40 days from date of submission of application including 5 days for transfer and 5 days for transit).

(For more details, see

http://www.slideshare.net/raviforjustice/the-best-order-by-an-information-commissioner-under-the-right-to-information-act)

After four years I sought an update on the information provided on June 12, 2009 based on the decision of Annapurna Dixit. The application was submitted on Sept.19, 2013 and on not getting any reply the 1st appeal was submitted on Nov. 18, 2013. The 2nd appeal was submitted on Jan. 19, 2014. Vijai Sharma, the then CIC decided the appeal, No. CIC/VS/ A/2014/000322, on July 8, 2015. The decision was shockingly wrong, right from recording of facts to deductions and the decision.

He wrongly recorded that the CPIO had responded on Oct. 4, 2013. He completely overlooked the information sought in para 2 of the application – Please provide the status as on 31 Aug 2013 for all the ROB/RUB in that list. (The reference of the list was given in para 1 as Ref your letter No W351/1/1/CN/P1/117 dated 12/6/2009). Even the information sought in para 3 – additional details about the RoB at serial no. 76 of the list – had not been provided, but the CIC was just informed that the RoB was opened and though that was not the information sought, he presumed it to be complete and end of the issue(s). He also failed to take cognizance of the information sought at para 4 – about additional RoBs/RuBs –sanctioned after the earlier information was provided. Clearly, many ICs do not even go through the complaint/appeal submitted by the citizens through painstaking effort.

(For details, see http://raviforjustice.blogspot.in/2015/08/prosecute-vijay-sharma-chief.html)

Shailesh Gandhi was a rare case of an RTI activist getting appointed as an IC with the Central Information Commission and he is credited with a few good decisions, besides raising the benchmark for disposal of cases. One of his most important decisions was in the matter of Sec of 6(3) of RTI Act mandating PIOs who do not have all the information sought to forward the application to the PIOs of such public authorities who hold those information.

However the language used in the Act being singular, the PIOs were taking advantage of it to deny information sought. The Department of Personnel & Training, nodal department of the Government of India for implementing the law, aggravated the problem by issuing an Office Memorandum, No F 1O/2/2008-lR dated Sept. 24, 2010 directing, in effect, to bury Sec 6(3) of the law. 

Shailesh Gandhi while deciding Appeal No CIC/SM/A/2011/000278/SG on June 16, 2011 quoted the General Clauses Act and enough case laws of the apex court to clarify that Sec 6(3) has to be applied even in cases where the application will have to be transferred to more than one other public authority. But even he floundered when deciding an appeal against the PIO of the Central Information Commission itself, who had failed to provide information on the action taken and status of four appeals pending with the Commission for almost a year. He proved the truism in Schopenhauer's Law of Entropy which says, ‘If you put a spoonful of wine in a barrel full of sewage you get sewage.’

(See http://raviforjustice.blogspot.in/2012/06/rti-act-shailesh-gandhi-and.html)

In the above case, of the four appeals whose status was sought, two were submitted under a proper covering letter indicating that there were two appeals and both pertained to the State Bank of India. While one of the appeals was decided by the then CIC, A.N. Tiwari, on Dec. 8, 2010, the other has not been disposed of till now though by the work allotment at Central Information Commission, the same IC should have decided that appeal also at the same time. But that is only if he, or even his subordinates, had at least browsed through the pages of the documents submitted.

The judiciary never needed a law like the RTI Act to get exposed as a failed and corrupt institution. But how it has tried to subvert the RTI Act by introducing exorbitant fee/cost  and even introducing a fee for 1st appeal has been discussed previously. While some corrections have been made to those, one sore point that persists is the exemption of the judicial part of the court functions from the purview of the RTI Act. In fact even copies of court orders are denied on the specious ground that they are part of the judicial proceedings. In a petition I had filed with the High Court of Kerala when the order was delivered almost after three years, it simply stated that the matter had been decided in OP 31427/2000 and hence this petition is dismissed. When I sought a copy of the decision in OP 31427/2000 it was rejected as part of judicial proceedings.

In another important case involving the decision of the Kerala High Court holding bandhs illegal, which decision was upheld by the apex court, I sought copies of the orders from the Home Department of the Government of Kerala. It got transferred to various other departments, including Law, from where it was transferred to the High Court itself. No prize for guessing what was the reply from the PIO of the high court.

At times, some helpful PIO informs that the information (copy of the orders) is on the website, whereas it seems to be hiding from anyone looking for it. The same thing happened in the case of the orders on bandhs with could only be searched using the catch word ‘bandh’ and the response was ‘no results’. In any case, it was reported in the New Indian Express (Jan, 13 2015) that the Delhi High Court had ruled that RTI Act can be used even if information is available through other means.

Here are a couple of case studies involving our apex court/high courts and the RTI Act.

In what is popularly known as the Namit Sharma case, a single bench of Swatantar Kumar of the apex court, on Sept. 13, 2012, wanted the information commissions to work in benches with one of them being a judicial member whose appointment should be made in consultation with the CJI or CJ of the respective high courts. (Recall how the apex court institutionalised the Collegium by giving a new meaning to the simple term ‘consultation’ used in Article 124 of the Constitution?). Thanks to opposition from all quarters, this part of the order was stayed by a division bench of A.K. Patnaik and A.K. Sikri on April 16, 2013.

Further, on Sept. 3, 2013 the same division bench, quoting Order XL of Supreme Court Rules 1966, recalled the original judgment stating ‘this Court can review its judgment or order on the ground of error apparent on the face of record and on an application for review can reverse or modify its decision on the ground of mistake of law or fact. As the judgment under review suffers from mistake of law, we allow the Review Petitions, recall the directions and declarations in the judgment under review and dispose of Writ Petition (C) No. 210 of 2012’.

Another interesting case pertains to Writ Petition No. 478 of 2008 and Writ Petition No. 237 of 2011, decided together by a division bench of D.G. Karnik and F.M. Reis of the High Court of Mumbai at Goa on Nov. 14, 2011. The argument of the petitioners in both cases was that the Governor of Goa was not a public authority. Thankfully both the Goa State Information Commission and the High Court ruled this out.

But two conclusions of the high court are interesting: one, the relationship between the President of India and the Governor of a State is not fiduciary and two, the State Information Commission has to be a multi-member body consisting of the State Chief Information Commissioner and at least one (but not exceeding ten) State Information Commissioner/s. The State Information Commission cannot function only with one member.

(To be concluded…)