Monday, 17 October 2011

National Convention on RTI: Uncovered Areas

In her notes to the Report of the National Commission to Review of the Working of the Constitution, Ms Sumitra Kulkarni, the only woman member of the 11 member Commission, made the following remarks:

I, Sumitra Gandhi Kulkarni am signing this document with grave concerns and reservations. My concerns and reservations should be a part of the record of this Commission’s work and its final report. My signature on this final report is conditional to the reservations and concerns as highlighted below:

1.      The Commission was set up to contemplate the challenges faced by the existing Constitution in dealing with issues that India will face in the 21st century and beyond – and consequently make recommendations in areas where the Constitution can be strengthened. This commission was not setup as a platform for fence sitting. We as members were expected to identify, debate and finally take a stand on issues – We have not done justice to this task as was expected of us.

2.       I have always believed that for a Constitution to be an effective framework for governance it must first be a framework for unification. I believe in a Unified and truly Secular India. However, the Commission debates seemed often to reduce the Constitution to being a platform for divisiveness and not unification.

3.      The Commission did not initiate or promote sincere debate in the public with regards to the issues that it was contemplating. The efforts was more to “evade and defer” instead of to “identify issues, table them for debate, and to deal with them”.

This is an apt critique of the 6th National Convention on RTI as well.

In all the discussions on every topic covered, more than two thirds of the time was taken by the few eminent persons on the panel harping on the same issues – proactive disclosure, amendments, dilution, file notings, protection of whistle blowers etc. – that had been covered by the media on so many earlier occasions. The idea was obviously to deny / inhibit a properly proactive debate at the convention.

Perhaps the one new subject introduced this time was Public Private Partnership projects and whether they should be and could be brought under the purview of the transparency law, and the why and how of it. One can say there was a near consensus in the house on the need to have all PPP projects covered by the RTI Act. And the best suggestion for doing it was by having a clause in the partnership contract itself to that effect.

In this context, one is reminded of the self financing college conundrum created by the then Chief Minister of Kerala (present Union Defence Minister A.K. Antony). While promising the people of Kerala that every two SFCs will be equal to one government college (meaning that 50% seats in every SFC will be filled up as per the norms for a government college and the rest left to the management), it was conveniently ‘forgotten’ while granting the licenses. As a result, the admission processes have been riddled with problems ever since and continue to be nightmarish for students and guardians even now!

Again, in the context of PPP projects, a small bit of information that was glossed over was that during the next Five Year Plan, almost 50% investment in infrastructure projects is expected to come from the private sector. This makes one wonder whether the message from the on-going protest on Wall Street is wasted on our planners and policy makers.

Coming back to RTI, there are quite a few issues that have never made it to the media so far, which could have been covered during the convention, if only grassroots activists had been given adequate opportunity to share their experiences.

First in this genre is the provision regarding Assistant Public Information Officers and their tasking, which is covered in Sec 5 of the RTI Act (the one that immediately follows Sec 4 dealing with proactive disclosures!)

The law states 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’.

When one understands how this clause has been interpreted by public authorities, including the Kerala State information Commission, all doubts regarding how the administration of this country has gone to dogs, vanish!

To clarify, we all know that even a village office is a public authority under the RTI Act. Now, can a village office in Kerala appoint an APIO in a sub-division or sub-district of Kerala, leave alone the whole country? So the only logically correct and pragmatic interpretation would be that every public authority at the sub-divisional or sub-district level has to appoint an APIO to fulfil those tasks specified.

In order to get the interpretation of the Kerala SIC on record, an application was submitted under the RTI Act seeking information on who were its APIOs in the sub-districts of Palakkad district. The reply, rather prompt, was that since the SIC did not have any office at the sub-district level, no APIOs have been appointed.

Worse, the Kerala SIC then directed the PIO of the RDO, Palakkad (sub-district) not to accept any applications addressed to other public authorities. This was not only in flagrant violation of Sec 5 of the Act, but in blatant violation of the orders issued by the competent authority (Govt of Kerala) on the subject.

As on date, CAPIOs have been appointed at various Head Post Offices, but unfortunately they have a list of central public authorities whom alone they serve, whereas such limitations should not be there as per the law.

It needs to be placed on record that every amendment made to its rules by the Govt of Kerala has been retrograde. First, it reduced the flexibility of payment of fees and cost by reducing the options for such payment to other than govt departments, that is, to the various boards, commissions etc. Next, they created problems for citizens seeking information by restricting the cost prescribed under the rules to only such information for which no cost has been prescribed otherwise, leading to public authorities demanding even Rs 200/- for a sketch on an A4 size paper and providing only photocopies of such sketches!

The office procedures of the information commissions are an apology for any procedure. This author can vouch for this fact based on experiences with the Central Information Commission and the Kerala SIC. Firstly, not even an acknowledgement is provided, and when provided randomly, it is useless as it does not carry any reference to the complaint/appeal. The age-old and well-established practice of assigning complaint/petition or appeal numbers (as in our courts) is not adopted while acknowledging complaints/appeals.

But the Kerala SIC is at least now hearing cases of 2009 vintage, as also some very recent ones. How such disparities can exist is beyond comprehension!

It may be pointed out that the job of an information commissioner is child’s play when compared to even the job of a munsif in our judiciary. On receipt of the 2nd appeal, along with connected documents, itself the IC can find answers to the following questions: is the information sought disclose-able? If yes, what is the information that has not been disclosed? How much is the delay in providing whatever information has been provided? What is the delay till date? Is it more than 100 days? Then the only thing required to be done by the IC is to direct the PIO to provide the information yet to be provided, and confirm, and simultaneously seek an explanation why the mandated penalty should not be imposed.

On receipt of confirmation of compliance and explanation, unless there are legally valid reasons for condoning the delay, the penalty as prescribed for the whole delay should be imposed. Also, if the complainant/applicant had demanded cost/compensation for the additional effort/agony in pursuing the matter up to the Information Commission, that should also be ordered to be made good by the public authority as provided for by the law. By not imposing the mandatory penalty, not only are information commissioners subverting the law that they have been tasked to enforce, they are also causing immense loss to the exchequer, for which they are themselves liable to be punished.

The penalty imposed on rare occasions also warrants questioning the very motives of the information commissioners. The law being unambiguous, mandates penalty for even delays only; hence, charges of corruption against information commissioners cannot be ruled out. In a case where a penalty of Rs 25,000/- is to be imposed, there is no way it can be proved or denied that the information commissioner who fails to impose that penalty had not accepted a bribe of, say Rs 15,000/- from the delinquent PIO!

Sections 217 to 219 of the Indian Penal Code can be used to charge the information commissioners for dereliction of duty. But we are seeing how messy the affairs of the judiciary itself are. As per a report of Transparency International, the judiciary is the second most corrupt institution in the country, next only to the police!

How many times have we seen judges invoke contempt powers to harass/threaten honest critics than to enforce their own orders? What do citizens do in these frustrating and exasperating times? The writer is not surprised at the exponential growth in crime rate and radicalism in society as a whole.

To take a leaf from the famous novel, the ‘Other Side of Midnight’, we may say that more crimes have been committed in our country in the name of justice than by all the undertrials and criminals in jail put together!

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