HC dismisses DVAC's Writ Petition

I had written sometime back that DVAC has challenged the SIC's order, asking it to disclose information relating to investigations on corruption, in the Madras High Court. This came up before Justice Chandru, who has been disposing of a lot of RTI related cases in the past 10 days. He dismissed it without even giving notice to the respondents.

Actually this was stayed by the High Cout in Nov 2009. This has now been dismissed. There was no effort for this on my part. The case was heard last week, and I learnt about it only the day before, when Krishananth, the lawyer who is helping me out with the court cases, enquired about the case, learnt this and informed me. Immediately on Monday, at the end of the court, Krishnananth made a "mention" to the Judge that he was representing me, a respondent, and that we havent received notice for the case yet. The Judge said that he was anyway going to dictate the judgment the next day (Yesterday). So I was present in the court yesterday, and the judge just dictated two lines. "The Writ Petition is dismissed. The petitioner is ordered to supply the information sought for". Here are the media reports in this regard.

DVAC bound by RTI act: Court
Vigilance dept must give info on graft cases: HC
'DVAC must provide info on graft'
http://docs.google.com/View?id=dg3785zc_80dvgr34cz
DVAC not totally exempted from RTI: Madras HC

The SIC decision that was challenged can be seen here.

Meeting with the P&AR Secretary

Mr.Arasu (Anti Corruption Movement), Mr.Ranganathan (Transparency International) and I were part of the meeting with the P&AR secretary on 14th December 2009. We started the meeting with a follow-up based on a letter that AKV had sent to the Chief Secretary after a meeting with him.

We asked the P&AR secretary about a regular review by the Heads of Departments regarding RTI. He said he will consider it and if necessary pass necessary instructions to the various Heads of Departments.

On the issue of lack of awareness regarding Section 4 within the Government, he said that after the previous meeting with the Chief Secretary, an instruction had already been sent to all the secretariat heads of departments asking them to update their website regarding Section 4 disclosures. He also read aloud the instructions that went out to all of us, and also showed us the file having some acknowledgments some compliance reports etc.

When the issue of different departments not replying to RTI applications in time, and giving vague and incorrect replies, he said that he could not do anything about replies coming from other departments. When asked about training, he said that trainings are being given regularly through Anna Institute of Management.

As for the annual report to be placed before the Assembly, he said that the P&AR department had called for the report from the Commission during each of the last four years but the SIC did not submit the report.

Then we also pointed out that there was no procedure at the Information Commission for disposal of appeals, he said that it was upto the Commission to decide on such a procedure. Then Mr.Arasu pointed out that the Central Government had drafted a procedure, he asked Mr.Arasu to show him the relevant parts, which Mr.Arasu did. He seemed a bit surprised at this and said he would consider it.

Then we raised the issue of understaffing of the State Information Commission. I showed him a document given by the P&AR under RTI regarding the staff situation of the Commission. After looking at that, he said that he remembered sending some letter in this regard and immediately called up one of his juniors and asked him to look into the vacancies. He also told us that there are people available with him and that he can send these people to fill in the vacancies. I also showed him a press release where CIC was given 116 additional staff recently. For this he said that if the Information Commission needed more staff, they need to prepare a detailed justification saying something like, since so many appeals come in daily, 1 person can register so many appeals and thereby working out the staff requirement. Once a detailed requirement comes to them, he said he would consider it.

As for recovery of Penalties imposed by the State Information Commission (which, as per my memory, was agreed upon as the responsibility of the State Government at the previous meeting with the Chief Secretary. This was denied by the P&AR secretary) he said that the Government was not responsible and it was for the Information Commission to follow up on that.

On the whole, we could also see his unhappiness with the State Information Commission passing (in his opinion)strict orders against the Information Commission and also refused to comment anything about the Commission. He also said that the Commission was doing other people's work instead of just enquiring into appeals.

Vijayanand who arrived a bit late, could not join the meeting since the officers outside did not let them in, since the meeting had already started.

Writ against SIC's orders on IAS assets disclosure order filed ...

After a hectic 3 days, the writ petition has been filed today against TN SIC's order not allowing disclosure of IAS assests. It might come up for admission by Saturday. Of course the first step is that it will be admitted and the respondents will be sent notices, so there is not much to expect on saturday. It is just a formality. The case will most probably be taken up for detailed hearing only in Jan, since the respondents have to be given time to submit their response. Moreover, the high court is on leave from 23rd to New year. So things will start moving only in Jan. Similarly the case filed by the DVAC against the SIC's order ordering disclosure of information will also come up for hearing only in January. I have engaged the same advocate Mr.Krishnananth, who helped me with the MLA assets PIL for both of these. He is doing it purely for its public interest value. He does not depend on his practice for his income. So he refused to take any money, but after insistence my side, has asked me to just give him whatever I feel like.

The Secretary of P&AR department, had given an appointment for a meeting with him on Monday, in response to a request I gave a month back. The meeting was not entirely fruitful, in the sense that he was obviously unahppy with the SIC giving strongly worded orders against the government (he particularly referred to an order in my case, where I had complained that the implementation of RTI act in the P&AR dept itself was shabby). Also for any request that we make, he says he will consider it and that he will need the consent of the Chief Secretary. The present CS is not the person who will do anything good for RTI (If you recall, I had mentioned earlier that he was the commissioner of DVAC who pushed for the DVAC exemption from RTI). But there was one good news that came out of the meeting. It seems the CS wil retire in a month's time. That gives me some hope. Once the new CS comes in, we will see if anything positive can be expected from the government.

A few updates - DVAC, IAS officers Assets Disclosure etc

Here are the updates regarding a few things that I have been working on.

The State Information Commission had ordered that DVAC, which was exempted from the act, still has to give corruption related information. As expected, DVAC has challenged this decision in the High Court, and the HC has given an interim stay and will hear the case after 8 weeks. This has been mentioned today in the Times. I have been added as a respondent in the case, which saves me the effort of impleading myself :-). Past posts about this issue can be seen here, here and here.

I did an analysis of the number of cases in the High Court challenging SIC's orders. The registrar told me that there were 37 cases where an interim stay has been granted. This one is probably the 38th. Many of these have been challenging the pro-disclosure judgments of the high court, and some are challenging the penalties. A complete list can be seen here. I had given this information to Times of India and Dinamani a Tamil newspapers. Times of India clubbed it with the DVAC news and published it. Dinamani highlighted this separately which can be seen here.

TN State Information Commission has ordered that assets disclosure statements of IAS officers will not be disclosed. This decision was given as part of a long 12 page order. The idea, I think, was to give the impression of having made a well reasoned case, but the whole order is nothing but saying that the assets details are personal information and hence cannot be disclosed unless there is a prima facie credible allegation of corruption. A weird judgment considering that the Commission had earlier passed orders wherein it had ordered disclosure of all the officers of Tamil Nadu Pollution Control Board in 3 districts. Naturally, a prima facie allegation of corruption cannot exist for ALL the officers. But the real reason is that in the earlier case, it was about "ordinary" officers and not about IAS officers. Of course, I am challenging it in the High Court and have completed the inital draft of the affidavit. Will post it here once finalised. The writ challenging this order will be filed most probably next week, since Mr.Krishnananth, the advocate who also helped me with the MLA assets disclosure PIL, is back in Chennai only this saturday.

Another development on the SIC front apart from the Commission starting to follow up on Show Cause Notices issued eariler, is that I have obtained legal opinion from Ms.Sudha Ramalingam, a leading advocate, to the effect that there were no legal issues involved in issuing Show Cause Notices for penalties along with the summons itself. I have sent a covering letter along with the copy of the legal opinion to all the Commissioners and the Registrar. I sent this on 2nd December 2009. Let me see what the response is, if at all there is one.

On the Chief Central Information Commissioner appointment, the Delhi HC had dismissed the PIL filed. After that there has been a few things have happened. We were discussing whether we need to go the Supreme Court against the Delhi HC's judgment, and finally decided on getting a "Certificate" from the Delhi High Court to go directly on appeal to Supreme Court. If not, it seems, one needs to file a Special Leavel Petition (SLP) with the Supreme Court and then go for appeal. These were entirely new things to me, so I just let the better informed people on the group to decide things. Meanwhile, yesterday we learnt that the Chief Information Commissioner was in fact not moving to J&K because the SC had slapped Contempt Notices on the Commission for putting up controversial decisions given by them against the Supreme Court in RTI applications filed by Subhash Chandra Agarwal, an RTI activist, on their website. Supreme Court had already stayed these decisions too. The decisions can be downloaded from http://cic.gov.in/CIC-Orders/WB-24112009-01.pdf

Some relevant links are given below.
http://timesofindia.indiatimes.com/india/SC-stays-CIC-order-on-judges-appointment-and-correspondence/articleshow/5299228.cms
http://www.merinews.com/article/contempt-notice-to-cic-habibullah/15790132.shtml

That's it for now.

Delhi HC dismisses PIL on appointment procedure of Information Commissioners

A quick (and delayed) update. As mentioned before in this blog before, some of us has filed a PIL in the Delhi High Court seeking transparent appointment of Chief Central Information Commissioner. The Delhi HC dismissed this case saying that though the cause was good, the HC does not have the powers.

HC declines to issue direction for appointment of CIC
HC: Can't ask govt to frame rules for CIC appointment

The judgment can be seen here.

Previous related posts:
Chief CIC appointment - PIL in Delhi High Court
Arguments for Delhi HC Case

Follow-up of Show Cause Notices - Finally

Day before yesterday I went to the State Information Commission to meet the Registrar. He had been promising that he would initiate follow-up of Show Cause Notices. I have been pushing this for close to 6 months now, and finally the process has started. Till Thursday about 32 cases where show cause notices were issued previously were followed up on. The Registrar showed me a case where the penalty has been imposed since there was no reply to the Show Cause Notice. This is precisely what I wanted. The Registrar had also offered to allow me to go through all the files which I intend to do next week to see what are the different scenarios and to see what different Commissioners are doing with the Show Cause Notices they issued. But this is an important step forward.

The process right now being followed is that all cases where Show Cause Notices have been issued starting from Jan 2009 are being taken up for follow-up. First it is checked whether any reply has come from the Public Authority, and if so the file is placed before the same commissioner who first issued the Show Cause Notice, so that he considers whether the reply to the SCN has any explanation for why penalty should not be imposed. Even if there has been no reply, the file is sent to the Commissioner for imposition of penalty. The problems that will come up are how the

In a case that I saw, the Managing Director of a PSU was asked to pay a penalty of Rs.1000 as in a previous order he was asked to get a reply from the PIO of the PSU for the Show Cause Notice issued by the Commission, which he did not. This is not legally correct. The RTI act does not empower the SIC to levy penalty on anybody other than the PIO. This order might also mean letting off the PIO. Such issues need to be analysed. A more detailed report on what happened in those 32 cases will be available next week.

Arguments for Delhi HC Case

The Delhi High Court PIL that we had filed on the initiative of Rao of Mumbai was up for hearing today. It was eventually dismissed. But given below are our arguments, as compiled by Krishnaraj are as below. This note was prepared by contributions majorly from Krishnaraj and Suni Ahya, another RTI activist from Mumbai. This lays out why it is that arbitrary appointment of Information Commissioners is illegal.

CIC Selection & Transparency explained in a nutshell

The post of “Central Information Commissioner” (CIC) is not a constitutional post such as that of Governor or President. It is not created by the Constitution, but by Section 12 of the RTI Act. It is an Act meant for empowering the common citizens in seeking information from public authorities, and bringing about transparency and accountability. Therefore, the fairness or otherwise of CIC’s selection must be understood mainly from the standpoint of satisfactorily fulfilling the criteria laid out in Section 12, as well as the objectives of the Act laid out in its preamble.

The post of CIC is not a ceremonial post, but requires daily performance of many duties, such as continually applying a judicious mind to the requirements of the RTI Act, conducting dozens of hearings, expeditiously dictating orders, overseeing their compliance, liaisoning with public authorities at various levels, meeting citizens etc. However, there is no scope for CICs to “rise up from the ranks” through a process of promotions, as there are no lower positions such as, for example, Deputy Information Commissioners, Assistant Information Commissioners etc. This has created an unprecedented problem as to how to select suitable candidates who meet the requirements of eminence, competence, impartiality and judiciousness.

There is currently a vacuum – an absence of guidelines. It is essential that proper rules are framed to satisfy the requirements of the RTI Act. The competent body for framing such rules is DOPT, which is the de-facto governing body for implementation of RTI Act.

The petitioners contend that in the absence of such articulated rules and regulations, the methods of selection being currently followed ie. in-house selection without advertizing and inviting applications/nominations of eminent citizens, are an abomination and an injustice to the citizens of India. These selections are based on insider-information and undue influence . They are mala fide acts done in secrecy, taking advantage of the current lack of rules and guidelines. They defeat the purpose of the RTI Act. They are bad in law for the following reasons:

I. Present method of selection CICs fail to comply with the basic requirements of Section 12(5) of the RTI Act:

Section 12(5) stipulates: “The Chief Information Commissioner and Information Commissioners shall be 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.” It is inherent in the wording of this section, as well as the objectives stated in the preamble (of bringing transparency and accountability to public authorities), that the post of CICs must be predominantly occupied by eminent members of civil society. To attract such nominations and applications in sufficient numbers, it is self-evident that the government must advertise all over India; otherwise, how will they know when such vacancy arises?

Currently, the CIC’s post is used for giving retiring bureaucrats a 5-year extension. This is mala fide use of privileged information and position. Please note:

• A N Tiwari and Satyananda Mishra were both DoPT Secretaries immediately before being sworn in as Information Commissioner at the age of 59 years 10 months and 59 years 7 months respectively.
• Before becoming CIC at the age of 62, O P Kejriwal was Director General of All India Radio and earlier, CEO Prasar Bharati.
• Mrs Deepak Sandhu was working as Press Advisor to the Prime Minister, directly before taking oath at the age of 60 years 9 months.
• Mrs Sushma Singh was Secretary, Ministry of Information & Broadcasting, before taking oath at the age of 60 years 4 months.
• Mrs Omita Paul was CIC for one month between May and June ’09, between two assignments as Advisor to Pranab Mukherjee. In the 30-year span starting 1980 – she worked with the Information & Broadcasting ministry for about a decade. When not working in Pranab babu’s ministries, she held positions in All India Radio, Doordarshan, Press Information Bureau etc. When she took oath, her age was aged 60 years 6 months.
• Chief CIC Wajahat Habibullah worked in Indira Gandhi's PMO, facilitated the transition to Rajiv Gandhi's Prime Ministership after her assassination, headed Rajiv Gandhi Foundation, authored two chapters in a book titled Rajiv Gandhi's India and won the Rajiv Gandhi award for Excellence in Secularism.

How can so many retiring DOPT secretaries, PMO insiders and Government spokespersons qualify for the post of CICs -- WATCHDOGS OF THE CITIZENS’ RIGHT TO INFORMATION? Out of nine Information Commissioners, only two are members of Civil Society, viz. Shailesh Gandhi (Entrepreneur & Activist) and Prof. M M Tiwari (Academician). All the others held government jobs.

II. Present Method violates Article 16 of Constitution – Right to equality
in matters of State Employment

Two government reports express concern at the iniquitous preponderance of civil servants, which is not envisaged in any form by the RTI Act:

A) Report of Second Administrative Reforms Commission (ARC), June 2006 says this with regards to State Information Commissions (which is also true of Central Information Commission).

“5.2.4 The RTI Act 2005 visualizes a Commission wherein the Members represent different sections of the society. The State Governments are still in the process of appointing Information Commissioners, but an analysis of the background of the State Chief Information Commissioners indicates the preponderance of persons with civil service background. Members with civil services background no doubt bring with them wide experience and an intricate knowledge of government functioning; however to inspire public confidence and in the light of the provisions of the Act, it is desirable that the Commissions have a large proportion of members with non civil services background.”

B) Price WaterHouse Cooper’s Report on RTI Implementation says:

“5.6.3. The Information Commissioners who are ex-bureaucrats bring in the perception that they are “soft” while passing orders on the PIOs. As per the Section 12(5) and 15(5), the composition of the information commissions should be such that it should have people with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance. To implement these sections in spirit, it is recommended that the people who have worked in Government should be restricted to 50% (if not less) as recommended in the ARC report.”

It is possible to fulfill the requirements of equitable selection of Information Commissioners only if vacancies are widely advertised with clear statements of appointment criteria, where and how to apply etc. Furthermore, a framework for training and screening must be set out by DoPT. Petitioners seek this Courts directions for the same.

III. Present Method violates Principles of Natural Justice

Information Commissioner is an independent quasi-judicial authority appointed by the Parliament through RTI Act. He has strong investigative powers and judge-like powers which he is expected to exercise on behalf of dissatisfied applicants for information and various Government institutions. As per Section 18, 19 and 20, he is expected to decide whether or not a member of civil society has been improperly denied access to information by a public authority, and he is expected by the Parliament to facilitate civil society’s access to information by acting on the basis of (1) complaints (2) appeals (3) suo moto action. He is expected to objectively decide on various matters without fear or favour, and suitably impose penalties and recommend disciplinary action.

But how can he act without fear or favour if he owes his appointment to an arbitrary, non-transparent and unguided act of discretion of the DoPT and PMO?

In the words of Justice Sujata Manohar: “The principles of natural justice have evolved under common law as a check on the arbitrary exercise of power by the State. As the State powers have increased, it has become increasingly necessary to ensure that these powers are exercised in a just and fair manner.“ The petitioner contends that the Principles of Natural Justice are compromised on several counts:

a) Firstly, the citizen’s right to be heard by an unbiased tribunal is compromised, as the currently sitting CICs can barely be seen as unbiased.

b) The principle of Audi alteram partem (The person concerned must be heard before a decision is taken) is compromised at the stage of selection on two accounts:

i) While appointing Information Commissioners, not attracting applications and nominations from civil society through advertisements implies not hearing most persons who are eligible for appointment u/s 12(5).

ii) Also, appointing Information Commissioners in an opaque manner, without due notice, prevents those who may wish to register protest at a particular appointment. For example, citizens would surely have registered dissent at DOPT Secretaries and Government spokespersons being made CICs if proper notice had been given.

a) The principle of Nemo judex in causa sua (A person will not judge a case in which he is himself interested.) The petitioner contends that in order to facilitate impartial selections (i) either PMO and DOPT must distance themselves from the selection process by appointing suitably-empowered citizens committees to put up candidates before the Prime Minister’s selection committee as per Section 12(3), or (ii) they must declare as ineligible civil servants who are closely connected to these departments specifically, as also government spokespersons, media advisors etc.

b) A recent third principle is that the decision must give reasons. Reasons may be elaborate or brief, but necessary to ensure fair decision making. Every CIC’s appointment must be a reasoned process, where the pros and cons of various candidates are weighed and thought through. This reasoning must be made readily available on the website to the public. Currently, this principle is not being followed, and the process is completely opaque, even retrospectively.

IV. Present Method violates the following Supreme Court Orders
on recruitment criteria vis-à-vis Article 16, 14 etc:

1) In Suresh Kumar and Ors. v. State of Haryana and Ors., 2001 AIR SCW 2545, the Supreme Court upheld the judgment of Full Bench of Punjab and Haryana High Court quashing the appointments of 1600 Police Constables made without advertising the vacancies. The High Court had reached the conclusion that the process of selection stood vitiated because there had been no advertisement and no due publicity inviting applications from the eligible candidates at large.

2) Similarly, in Surinder Singh and Ors. v. State of Haryana and Ors., JT 2001 (5) SC 461, the apex Court quashed the appointments made over and above the number of vacancies duly advertised being violative of Articles 14 and 16 of the Constitution as candidates who possessed eligibility subsequent to the advertisement had no chance to be considered for recruitment. “Any appointment made without advertising the vacancy remains unenforceable being violative of the mandate of the Articles 14 and 16 of the Constitution and does not require to be protected and such an appointee cannot claim the relief of regularisation.”

3) In Excise Superintendent v. K.B.N. Visweshwara Rao, (1996) 6 SCC 216, the Supreme Court impliedly over-ruled its earlier judgment in Union of India and Ors. v. N. Hargopal and Ors., (1987) 3 SCC 308, wherein it had been held that appointment by calling the names from Employment Exchange was valid. The Court took the view that in addition to calling the names from the Employment Exchange, vacancy has to be advertised in local newspapers and the appointment only by calling the names from the Employment Exchange will be hit by the provisions of Articles 14 and 16 of the Constitution of India for the reason that those persons who could not get their names registered with, the Employment Exchange cannot be discriminated merely on that ground.

4) In Sita Ram Mali v. State of Rajasthan, 1994 (2) WLC 177, the Rajasthan High Court deprecated the practice to appoint even on daily wages without advertising the temporary/ad hoc vacancies, observing as under: "Making appointment on daily wages without the availability of the post and without following the provisions of Articles 14 and 16 suffers from patent illegality. Apparently for the reasons which are only extraneous, the Officers of the Department have given appointments on daily wages to few favoured.”

5) In Umesh Kumar Nagpal Vs. State of Haryana [(1994) 4 SCC 138 ] the supreme court held that, "As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post."

The actual details of why the Delhi HC dismissed it will come to me soon. Will post it as and when it comes up.