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.

How RTI exposed a Judge violating a Government rule...

and how the Judge had me taken to a Police Station for my daring to question it. Here is a gist of my experience yesterday, part of which was being detained at a Police Station for close to 4 hours. It is interesting on many fronts: The powers that Judges wield, how they cannot stand somebody questioning them, the way Police bend over backwards for Judiciary, how wonderfully supportive people like Sudha Madam, Nityanand and Ossie Fernandes and his whole team were, and how RTI exposed the the Judge's violation of the Government Rule.

On 6th Nov 2009, while going on bike along with my friend Bhaskar (who worked with me in Infosys and is now doing Health work in AID India), I saw a white Ambassador car with a red revolving light on it. While standing at the signal waiting for the green light, I asked the driver who this car belongs to and why a red light was there. I did not see that a judge was inside the car. I had asked these questions because I keep hearing about officials misusing this privilege by using it when they are not eligible for it. But since I asked these questions, the judge, who happens to be a Labour Court judge, S.F.Akbar got wild, and ordered his personal security officer to take me to a police station and register a complaint against me. So he promptly took me to a police station and filed a complaint. I was detained at the Police Station for 4 hours. From about 1.45 PM to 5.30 PM. Thanks to the terrific support of Ms.Sudha Ramalingam, a well known advocate and human rights activist in Chennai, Nityanand, Mr.Ossie Fernandes, Indra, Rajesh and Veni of Human Rights Federation, I was let off with a warning. Throughout my detention at the Police Station, I did not know who the judge was. After coming back to office, I googled for him a bit, and after checking with Sudha Madam and another advocate Mr.Krishnananth I confirmed that this judge was of the cadre of District Judge. As per the Goverment Letter(Page 1 and Page 2), which I had received under RTI, filed at the request of Sudha madam some time back, district judges are not eligible for revolving red lights. Only Judges of the high court were eligible for the red revolving light. Once I realised that the judge had been violating the rule, I immediately informed the media. Sudha madam also told Deccan Chronicle about this and I sent a copy of the Government Letter to my media contacts. Deccan Chronicle talked to the judge to get his view of the whole thing. Only when this reporter from DC cited the GO to him did the Judge seem to realise that he had been wrong. He seemed to have said that he did not know the rules, and that the vehicle was given to him by the High Court, and he has been using it as it was given. After the DC reporter talked to the Judge, the PSO who was the one who initially took me to the Police Station (and also called me a "mental" 3-4 times for my impertinence to ask questions) called me up and asked me why I went to the media on this. He also asked me why I was doing this to a senior Judge who will soon be promoted to the High Court. I told him that the Judge violated the rules and I was made to sit in the Police Station for 4 hours. He also asked me why I did not inform him before doing this. I told him that now that the information has reached the media, I cannot do anything now. The whole thing seemed to have shook the Judge up. Thanks to RTI, I could lay my hands on that letter. And thanks to RTI, I had the last laugh, though I had to spend 4 hours in a police station.

A more detailed narration will come up shortly. Meanwhile here are the news items on the incident. They are understandably (though not justifiably) not very critical of the violation of the Judge. Deccan Chronicle came closest to stating clearly that the Judge was wrong: "It seemed that the judge has ignored the order". It was thanks to Deccan Chronicle that the Judge learnt that what he did was wrong. The Hindu said that the incident did not have "News Value" and did not cover it :-)

http://www.deccanchronicle.com/chennai/judge-sees-red-over-car-beacon-879
http://timesofindia.indiatimes.com/city/chennai/Duo-detained-for-questioning-judges-driver-on-red-light-on-his-car/articleshow/5204799.cms
http://tinyurl.com/yhxlwa3

Now as next steps, Sudha Madam has suggested that I prepare a narration of the events and we can submit it to the Chief Justice of the High Court, SHRC and NHRC. I will also file a complaint with the Police asking them to remove the red light on the Judge's car, as the PSO himself had admitted to it in his complaint against me at the Police Station.

Chief CIC appointment - PIL in Delhi High Court

The Chief Central Information Commissioner Mr.Wajahat Habibullah, had resigned sometime back so that he can take up the post of the State Information Commissioner for Jammu and Kashmir, which has now got its own Right to Information act, which is heavily based on the National RTI act. (Though not relevant to this post, I would like to point out here, that one important feature of the J&K RTI act is that only people in that state can use the J&K can use the act). Now the Central Government is on the lookout for a new Chief Information Commissioner. Meanwhile Arvind Kejriwal has launched a high profile campaign asking for Kiran Bedi to be installed as Chief Information Commissioner.

In this context, Mr.Krishnaraj Rao, an activist from Maharashtra, started a telegram/phonogram campaign to the PM and others to choose the CIC in a transparent manner. After that he also took initiative to file a Public Interest Litigation with the Delhi High Court asking it to direct the Government to put in place a transparent mechanism, where criteria are declared clearly and openly, applications are called for and then the choice is made. He asked me if I would also be one of the petitioners. The idea is that if people from different states are petitioners, then it will add weight to the PIL. Since I was trying to get something done on the arbitrary appointments in TN SIC, I gladly agreed. There is one person from Andhra Pradesh too, Mr.C.J.Karira, who is a petitioner. Krishnaraj himself is from Mumbai. There are 3 other petitioners from Mumbai. The PIL is being argued by a lawyer Mr.Rasheed Qureshi from New Delhi who is a friend of Mr.Krishnaraj. The petition can be seen here.

The whole case was initiated by Mr.Krishnaraj. This already came up for hearing once on 9th November 2009. Mr.Prashant Bhushan was to argue for this. But since he was also looking at other cases, on that day, when the turn of this case came, he was not there. Hence Mr.Rasheed himself argued the case. The next hearing for the case is shceduled for Nov 18th, Wednesday. Let us see what happens. Meanwhile I did three awareness sessions for volunteers of the NGO Hand in Hand on three consecutive days. They forced me to accept Rs.500 as resource person fee for each of the three days. So it came to Rs.1500. The very next day I received an email from Mr.Krishnaraj that the cost for the PIL that we need to pay comes to Rs.10,000 which comes to Rs.1,430 per petitioner. So my part of the funding for the PIL to strengthen RTI comes from RTI itself :-)

Will keep updating on what happened on this case. But here is the report from Mr.Qureshi on hat happened on 9th November.

In the first call (10.45 AM), I mentioned that I was seeking a passover as Mr Prashant Bhushan was to appear in my matter. The Chief justice remarked that our matter was premature as the new CCIC had not yet been appointed. I said that our matter was not about canvassing for any particular person X,Y or Z to be made the CCIC. If that was the case it would surely be premature, because then we must wait to see who is made the CCIC, and then move the court. In the present case, we were saying that the 3-member selection group was acting without any guidelines, criteria, rules etc and hence was violative of the Constitution. Acting in a void, without administrative guidelines, meant that they could pick and choose any one of their choice to the detriment of the public at large.

I stressed that all that I was asking was that there must be administrative guidelines, some criteria and the process must be generally known through Rules under the RTI Act. In the absence of this, there was likelihood of persons being selected who had conflict of interest qua their duties under the Post held and the appointing class of persons i.e. politicians.

At this, the CJ asked, "Do you say that bureaucrats must not be appointed?" I said, No, I don’t say that either. All I say is that the Act contemplates that People of eminence in law, social activism etc. PLUS those in administration and governance. So people from other categories also must be considered for the post of CCIC. Also, this must be done keeping in mind that bureaucrats are likely to have a conflict of interest in discharge of duty. CIC’s work is a quasi judicial work which requires decision-making, and sometime hard decision need to be taken.

This Act is in a nascent stage in India while other countries like Australia, UK & Canada have already evolved Best Practices in this field which we need to incorporate. Advertising this post is one good way, though not the only way, to make it transparent.

The Court asked if I was challenging the RTI Act. I said, No.

The matter is adjourned to 18th November. That gives us 9 days to prepare with more case laws.

TN Information Commission left out of National Survey

National RTI awards is an Arvind Kejriwal led initiative, to honour the best user of RTI, best PIO and best Information Commissioner in India. For the award of the best Information Commissioner the team analysed more than 50,000 decisions from all the Information Commissions of India. For TN the team studied decisions after taking them from the website of the TN SIC. But in TN, there is the unique procedure of passing orders without conducting hearings. Such orders which are passed without hearings are not uploaded to their website. The RTI awards team did not realise this, though they had received the information under RTI from the TN Information Commission, that TN had disposed more than 40,000 appeals in 2008. When they realised the discrepancy between the 40,000 appeals that were claimed to have been disposed, to the 900 decisions available on the website, they disqualified TN from the survey. The Delhi team asked Nityanand to organise a press conference and release the interim national report. This was done yesterday where most English and Regional language papers attended the press conference. A couple of regional TV channels also attended it. Here are the reports.

TN info panel disqualified for national award
Only 27% RTI applicants get info sought
RTI Act: TN commission not facilitating access to info, say NGOs
T.N. Information Commission disqualified in survey

HC dismisses PIL reg MLAs Assets Disclosure

A quick update. And it is a bad news. The PIL I had filed in the Madras High Court, regarding non-adherence to MLA assets disclosure resolution was dismissed in the High Court yesterday. The details are present in the media articles given below.

http://www.hindu.com/2009/10/14/stories/2009101460110900.htm
http://tinyurl.com/yjwvsxp
http://tinyurl.com/yftxn8s

I havent yet received a copy of the order. It will take a week. Will upload it once I receive it.

Previous posts on this issue.

http://adropinanocean.blogspot.com/2008/11/assets-disclosure-by-mlas-mlcs-and.html
http://adropinanocean.blogspot.com/2009/02/it-has-been-close-to-1.html
http://adropinanocean.blogspot.com/2009/10/pil-in-madras-high-court-reg-mlas.html

PIL in Madras High Court reg MLAs assets disclosure

Please refer to the following two posts for the background work I did on MLAs assets disclsoure.

http://adropinanocean.blogspot.com/2008/11/assets-disclosure-by-mlas-mlcs-and.html
http://adropinanocean.blogspot.com/2009/02/it-has-been-close-to-1.html

As mentioned in the last line of the second post given above, a PIL has been filed in the Madras High Court asking the High Court to direct the government to take necessary steps to ensure that MLAs are disclosing their assets as per the resolution passed. This was done on Friday (9th October 2009).

The case MIGHT be taken up for admission tomorrow (Tuesday, 13th October 2009).

The affidavit filed can be seen here.
http://www.box.net/shared/6o5o4hp2as

The RTI applications filed and the replies received can be seen here.
http://www.box.net/shared/b4vk1t4px8

Finally, CMO gets a PIO

Finally, after orders from the State Information Commission, the Tamil Nadu Government today appointed a Public Information Officer to the Chief Minister's Office. I received a copy of the order which appointed the PIO. This appoints an officer of the Public Department as the Appellate Authority of the CMO. I do not know how legally sound this is, but that there is at least a designated PIO and AA for the CMO sets a precedent which other ministries ought to follow now. The order of the TN State Information Commission and the subsequent order passed by the TN Government can be seen here.

Articles in the media about this.

http://tinyurl.com/lwdrg2
http://www.thehindu.com/2009/09/18/stories/2009091852930400.htm

http://www.hindu.com/2009/10/04/stories/2009100460610600.htm

Good news about DVAC

There was an order passed at a hearing hearing yesterday (24th September 2009) at the SIC, which in effect brings DVAC (Directorate of Vigilance and Anti-Corruption) back under RTI, in spite of the GO No.158 by P&AR which exempted it more than a year back. This is what happened. I have talked about it here and here.

Close to a month after DVAC was exempted, I filed an RTI application with the DVAC, seeking information about completed cases of investigation into corruption complaints. I had also sought details of those who were convicted. There was no reply to the RTI application and the first appeal. So I filed an appeal with the Commission. This appeal was filed last december and the hearing came up today. The argument I took up was, that the proviso to section 24(4) says "Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section:" and since the information I had asked for was related to corruption, DVAC has to disclose the information.

The Commission (which had the Chief and GR sitting today) ordered that since the information I had was related to corruption, this has to be disclosed since the proviso is clear. If at all, information can be exempted only under 8(1)(h) which says "information which would impede the process of investigation or apprehension of offenders;". The commissioner also notes that if the information would cause embarrassment to the official concerned before the investigation is complete, then such information has to be exempt from disclosure. The commissioner also pointed out that if the organisation has any "intelligence and security" related information then that can be exempt from disclosure. Of course, I am yet to get a copy of the order since the hearing happened only yesterday, but this decision, in effects, blunts the effect of the GO, since this still keeps DVAC under RTI act when it comes to corruption related information and since the DVAC is all about corruption cases, they have to disclose most of the information. The commission has ordered the PIO to give me the information.

DVAC might still challenge the decision in the high court. But the fact that the SIC has given such a decision shows the absurdity of the GO in the first place. The case number is 39170/08.

Some quick updates

I was trying to get some information from the SIC regarding their staffing problems. I had asked for the number of vacancies there, and the communication between them and the Government regarding staff requirement. The information I received showed that there are 4 sanctioned posts in the Information Commission which have not been filled by the government. Also repeated letters from the Information Commission have also not helped the cause. I gave this information to Shyam of the Hindu, and he has put out a report which can be seen here.

A few important hearings are coming on 24th September 2009. They include
1. Hearing regarding assets statements disclosure of IAS officers
2. Hearing regarding information from DVAC (which was exempted from the RTI act). Here is a related post.
3. Hearing regarding an RTI application where I had asked for appointment procedure of Information Commissioners, which was not replied to at all by the P&AR department.

Sometime back, I had filed an RTI application with the Chief Minister's Office, which in turn was replied to by the PIO of the Public Department (that too a rejection). Wondering if there was no PIO in the CMO, I filed an RTI asking the name and designation of the PIO and the Appellate Authority for which, I got a reply that there was no PIO or an Appellate Authority. So I filed a complaint with the State Information Commission. This was in October 2008. Now the Commission has directed the Government to appoint a PIO to the CMO. This was covered by the Times of India and the Hindu. In the Hindu, it appeared only in the online edition. The links are
http://www.thehindu.com/2009/09/18/stories/2009091852930400.htm
http://tinyurl.com/lwdrg2

In the original RTI application to the CMO, I had asked for inspection of certain registers, including the incoming mail register, but it was rejected saying that I had not asked for any specific registers and so the inspection cannot be allowed under section 7(9). Against this I appealed to the Commission and a hearing is scheduled for September 30th.

Asset disclosure of IAS officers

In February 2009, I had filed an RTI application seeking inspection of assets disclosure statements of the last 5 years of the Chief Secretary of Tamil Nadu and the secretaries of 9 other departments. This was rejected citing 8(1)(j) of the Right to Information act, 2005, which says that

"there shall be no obligation to give any citizen information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:"

So I went in for first appeal, where I received the same reply. So I filed a second appeal. As mentioned, in passing, in the post (http://adropinanocean.blogspot.com/2009/09/assets-disclosure-of-government.html), the Chief Commissioner is of the opinion that assets statements of IAS and IPS officers need not be disclosed since they come in sealed covers. A hearing for the appeal I filed was scheduled for yeaterday (24th September 2009). It will be a very crucial hearing, since, if successful, this would bring to the open, the assets details of ALL the government servants of Tamil Nadu, right from the Chief Secretary. I will briefly list down the information I had gathered and presented in the case.

1. The Tamil Nadu SIC has already ordered that assets details of Government Servants ought to be made public. This has been seen in the case no. 16294/08 on 9th Feb 2009. I am yet to get hold of a copy of this judgment, but I have seen this order since this was the case of Mr.Retnapandian who is an RTI activist.

This is important since, this establishes that assets details as such have to be public documents. Thus the issue is whether information from sealed covers ought to be disclosed or not.

2. There has been a case where the applicant asked for some Property details of the Managing Director of Karnataka State Coir Development Corporation. Information denied under Sec 8(1)(j). The first appeal was also rejected. But Karnataka SIC allowed disclosure. So the PA filed a writ in the high court. In that case High Court ruled that the order of the SIC is correct. This is not of much consequence now, as the TN SIC has also ruled that assets details have to be public. I tried to find out whether this Managing Director is an IAS officer, but from what I could see on the website of Karnata State Coir Development Corporation, that is not the case. So this might not be of much help in my case.

3. The commissioners agreed that the assets details information was not private, and hence 8(1)(j) is not applicable.

3. There have been a few decisions in the CIC saying that assets of IAS officers need not be disclosed. In one case, it has been especially pointed out that since the assets details come in sealed covers, it cannot be disclosed (The decision can be seen here). This is exactly the stand that the TN Chief Commissioner is also taking. But there is one decision of the Chief Central Information Commissioner, who has ruled that assets details of IAS officers should be disclosed. This decision can be seen here. This is what I will cite in the hearing. I will have to argue that the Chief Information Commissioner, having, been an Ex-IAS officer himself, will definitely have known that assets details are submitted in sealed covers. Thus, the fact that in spite of this knowledge, he has ordered that assets have to be disclosed clearly showed that the information being in held in sealed covers is no reason to exempt it from disclosure.

4. Moreover, any exemption from disclosure, should come under one of the exemptions of section 8 and 9. No such section can be cited here. Exemption of personal information will not hold here, since it has already been held that non IAS Government Servants' assets have to be disclosed. If at all, anything, it should be the 8(1)(e), information held under fiduciary capacity, should be the one cited. But even that argument wont be good since the Delhi High Court, in its recent judgment in the case of Assets disclosure details of the judges of the Supreme Court, has, ruled that the CJI was not holding the assets details of other judges in fiduciary capacity. The judgment can be downloaded from here. Here para numbers 54 to 59 clearly explains this.

5. The PIO's argument is that the information comes in sealed covers and hence cannot be disclosed. The Chief Commissioner too said that breaking the seal open is not possible. The commissioner also argued that, the case was not that of information being being personal information or being exempt under any of the subsections under 8 of the RTI act, but that information was "not available" with the PIO since it is present in sealed covers.

This was an argument I had not anticipated. But my reply to this was as follows. I told them that the purpose of sealing the covers was confidentiality. And before the RTI act came into force, there were many other documents which were held confidential, but the RTI act brings all of them into public domain. Similary the practice of sealing covers is also a means of ensuring confidentiality. Before RTI, if a document has been marked as confidential, it is in effect the same as sealing it, except that sealing is a physical thing, and marking it confidential is not such a physical thing, but both are with the intent of keeping the information confidential. But since RTI throws away the confidentiality of documents that are marked as such, even the sanctity of sealed covers should go. The Commission was not sure, and said that it was reserving its judgment and asked me if I had a written affidavit. I said that I will submit the affidavit in a day or two. Let me see what happens.

Experience of RTI with a police station

In November 2008, I saw a Police Station (R3-Ashok Nagar) where there were old rusted cars parked lying on the pavement right outside the walls of the Police Station. It completely blocked access to the pavement, and I was also wondering why those vehicles were left there to rust. So I filed an RTI with the Public Information Officer of the Police Station, asking questions like, why those cars are lying there, since when are they lying there, why they have not been removed etc. I sent the RTI through a private courier company. But the courier was returned to me saying there was "no such person". So I browsed through their website (http://www.tnpolice.gov.in/RTA.html) and then found that the PIO was the Assistant Commissioner of Police, T.Nagar Police Station for this area. So I filed an RTI application addressed to that person.

What happened was that, on seeing that this was an RTI application (I had written "Right to Information" on top of the envelope), the person at the police station refused to take it and redirected it to the office of the Police Commissioner of Chennai. When the RTI reached there, the person there too refused to take it and redirected it back to the T.Nagar Police Station. So the courier person again went back to the place he first went to. There they again refused to take the application, and so they returned it to me. After this I filed a complaint with the State Information Commission. This was taken up for hearing on 26th August 2009.

Once the summons for the hearing was sent, the Assistant Commissioner of police called me up and asked me whether the envelope was returned. I told him what happened and he asked me if I could send a copy of the envelope so that he can conduct an inquiry into why the envelope was not received. He also asked me to whom the envelope was addressed. I told him that it was addressed to the Assistant Commissioner of Police, I sent him a copy.

At the hearing, the Asst. Commissioner of Police brought a letter from the courier company saying that the person who was delivering the courier at that time had left, and that it was the courier company's mistake that the delivery was not made. Of course, the Commissioner saw through this farce and told the Policeman that he knew that the policeman had threatened that courier company into writing this letter . But the commissioner also noted that since the letter was given, there was not much he could do.

But at the hearing the Asst. Commissioner also brought a reply to my RTI application from the concerned officer of the Ashok Nagar police station. The reply just said that the information I had asked for did not fall under the definition of the "Information" under the Right to Information act, 2005 and hence information could not be given. The commissioner looked at my RTI application, and said that except for 1 question, the rest have to be answered, and issued a Show Cause Notice for penalty.

But what I learnt out of this whole experience, is to use only the Government's postal service. Since in such a case, the policeman cant extract such guilt admitting letters from the postman.

Assets Disclosure of Government Servants and Councillors

I have been purusing the case of assets disclosure of Government Servants, People's Representatives and to a lesser extent, of Judges. A good news that came in yesterday was that Madras High Court Judges have decided that they will make their assets public. A report can be seen here. Though the story ends well in case of Judges, there is some struggle ahead with getting the assets statements of people's elected representatives, and Government servants. In the last few weeks, there has been progress on my efforts on Government Servants.

On the issue of assets disclosure of Government servants, I had filed an RTI with 4-5 departments and regarding IAS and IPS officers, asking WHETHER they had filed their assets statements. A couple of them refused. One department said that there were no violations at all, but refused to give any numbers. Another department said that the practice was not being followed and that it will soon be taken up. All these cases came up for hearing. And the Chief Commissioner ordered them all to give me information within two weeks. But there were some interesting aspects of the hearings.

The PIO of the Public Department (which is the most high profile department in the secretariat) initially said that these were personal information. The Chief Commissioner said that the personal clause wont hold here, since I had asked only for WHETHER assets statements have been submitted or not. He also mentioned that even assets of government servants have to be disclosed. And before I could heave a sigh of relief for that statement, he added that assets statements of IAS and IPS officers alone need not be disclosed since they are submitted in sealed covers. This stuck to me as odd. When everybody else (like Governmnet Servants, Politicians and even Judges) have to disclose assets what is special about IAS and IPS officers. Though this was not relevant to the hearing on hand, I have an appeal related to an RTI application I had filed asking for inspection of assets declration statements of the Chief Secretary and the Secretaries of 10 other departments. And if I dont get my arguments ready for that hearing, there is a good chance that I might lose the case, since the Chief Commissioner thinks that sealed covers is a good reason for non disclosure of information. I have made some enquiries on that and will put it down as a separatepost.

An RTI filed in November revealed that revealed that 25 of the 155 (16%) Chennai Corporation councillors have furnished their Assets Declaration Statements which they should do annually. The full details are available here. After a report of this was out in the Hindu, the Mayor of Chennai Corporation (who himself was a defaulter) promised that he would ensure that everybody filed their assets declaration statements. After this I filed an RTI in May to find out what the present status was, and to see whether the Mayor has kept up his word. This RTI showed that after that initial RTI and the report in the Hindu, a circular was sent out to all the councillors to file their returns of the last two years and so far 96 councillors (61%) have submitted their returns. There are still close to 60 councillors who have still not submitted their returns. But when I first filed the RTI application, I had asked for details of the councillors of the previous council too. This was not give to me. I had filed a second appeal for which hearing happened on September 3. In this the PIO promised that she will give me the details I had asked for within 2 weeks time. That will throw some light on the levels of disclosure of the previous council too.

Moreover, I had also asked for inspection of the assets declaration statements. This was rejected by the PIO, saying that it was personal information, so I had filed a first appeal. This too came up at the hearing, when the PIO raised this. I told the commissioner that this was a separate RTI application, and so the Commissioner refused to discuss it. But talking about it with the PIO, outside the hearing, she told me that her seniors had asked her to cite the personal information clause in rejecting the RTI application. I told her that I also filed a first appeal and that there was no reply, she said that she will consult with her seniors and give me a reply.

Understaffing of the TN Information Commission

On July 17th 2009, I was part of a set of 4 people who met the Chief Secretary of Tamil Nadu a week back, to discuss government implementation of the RTI. Mr.AKV organised the meeting with the hope of bringing in some mechanism like a regular meeting where NGOs/Citizens, Information Commission and Government Officials could interact and evolve solutions over the problems plaguing the implementation of the RTI act. The Chief Secretary did not agree that there ought to be a regular meeting and also refused to admit that awareness levels among officials were poor. When I gave him an example, he refused to believe me. Finally, where I raised the issue of understaffing. It was pretty obvious that the Chief Secretary was very antagonistic towards the commission. He told me that, that was the problem of the Chief Commissioner and not mine. I told him that it was indeed mine too, since it is my appeal that gets delayed upto 10 months because there are not enough staff. At this the P&AR secretary said that they have sanctioned all the staff that were asked for.

After the meeting I just searched the internet for a few details and found that the background of the Chief Secretary. He was the State Vigilance Commissioner when DVAC and TSVC were exempted from the RTI act here under section 24(4). With him at the helm of the TN bureaucracy, I have little hope that the Commission will be given enough resources to function properly. This, I think, will become a huge problem as the Commission staff are working even on saturdays (not all saturdays though) to clear the backlog.

Sit-in at the Information Commission

As a follow up to the letter asking for reasons for passing a two line order mentioned here, I along with Mr.Rajkumar (who are previously working with 5th Pillar) went to meet the PIO yesterday. The PIO tried to explain to us things like they dont come under section 4(1) of the act and that there is no time limit etc. The discussion at some stages bordered on the insane, like saying that the Information Commission is not a Public Authority, and at other times saying that the department is not the Public Authority but the head of the department who was the Public Authority. I really did not have the patience to argue with him. At the end when I demanded a reply to my letter, he just asked me to meet the Chief Commissioner. When I met him he rudely told me that reasons will not be given. When I pressed that some form of reply needs to be given to my letter, he said that I might or might not get it. At this I went back to the PIO and sat in front of him and told him that I will not leave the seat till I get the reasons properly explained. He kept telling us to leave and that he will send a reply soon. When I asked him when the reply would come, he refused to commit to anything. So I told him that we are not leaving. He tried to cajole us, and he also tried to threaten us. We just asked him to do what he can, and that we wont leave. We sat there for an hour. Then the PIO left for lunch. We were still sitting there. But since it was a cabin sort of thing, not many people knew that this kind of a sit in was happening. The PIO also kept telling us that if at all we wanted to sit we had to sit in the cabin near the reception where there is place for visitors to sit, since our sitting in his cabin means listening to what all orders he was passing etc, which according to him, we are not supposed to know. I used this opportunity to move out of his cabin and sat right next to the reception on the floor.
And this did the trick.

The office assistants kept asking us why we were sitting on the floor. We explained to them the whole issue. Then the officers started coming to us. First the assistant registrar, with whom I had been in regular contact. He was surprised at the sit-in. He said that he didnt expect us to do such a thing. But to him too we explained the whole thing. And soon the whole commission knew that something like this was happening. All through this I kept Nityanand informed, so that in case were arrested, we will need help. He was not in town but he had informed his colleague about us just in case something happened.

Mr.Retnapandian, who is an RTI activist, had coincidentally come to the commission and met the Cheif Commissioner, who told him that we were sitting on a dharna outside. He came and met us. He asked me not to do such things and told me that this was liable to be arrested and could be brought out only on bail. I knew this well. Sometime back I had checked this with Nity and the general procedure is this. If you do a protest OUTSIDE the premises of any orgn without permission you will be arrested and let out in the evening. But if you do it inside the premises, you would be arrested but not let out in the evening, but it will be a proper arrest, needing a bail to be let out. I told him that I knew that, but told him that I have been patient for two years and that I cannot wait any longer. He said that he too was anguished at the way the commission was functioning, and that he planned to file a writ in the high court. I told him that I will support that too, but that does not mean I have to give this up. Eventually even after a lot of discussion I refused to leave. He finally told me that he felt that we should not be doing it and left.

Then we sat there till about 5.45 PM. Close to 5 hours. At the end of it the Under secretary (adiministration) came and asked us to come and talk to the Chief Commissioner. We refused. We explained to him the whole issue and told him that our deamands were that Show Cause Notices for penalties should go out in the summons itself (Here I showed a copy of the Maharashtra Information Commissions' summons where such a practice is being followed) and also in the interim directions that are passed. I talked with him for about 15 mins at the end of which he requested me to come and talk to the Commissioner and that he would also accompany us. Finally I relented and both of us along with the official went into the Chief Commissioner's room. Here he told me that I should chose whether I wanted to be treated the way I was till sometime back or that I wanted to do it the dharna way. I was about to say that I dont mind being treated anyway, and that if needed I will use any tactics for achieveing my goals, but before I completed my sentence he moved on to soemthing else. There he discussed how not havin enough staff cripplied the commission's functioning and we also had discussion on some legal points of issuing Show Cause Notices for penalty in the summons itself. At one point, when I showed him the Maharashtra Information Commission's summons, he told me that it was not a Show Cause Notice. His argument was that the summons did not have the words "Show Cause Why", but I told him that it was indeed a show cause notice. To this he asked his official who was with us to give his opinion since he was a lawyer. This official, a very meek person, said that if the Chief said it was not, then it was not. I could not control my laughing at it. That he did not confidently say that it was not a show cause notice was a dead giveaway that it was indeed a show cause notice. But the Chief refused to agree. I told him that he had given so many promises so far but have not fulfilled them, to which he replied with statistics of how the TN commission had the most number of appeals even higher than the CIC and that he was able to handle those appeals with very few staff. But he said that he will consider this suggestion of issuing show cause notices in summons. I told him that I wanted something in written in a month as to how the suggestion was considered and if not implemented why it was not implemented. He said he will do it in a month. Since the other official was also there, I agreed to it and decided to wait for a month. If he does this it will be a very important move. Let us see. And hope.

High Court Judges' disclosure of assets

Last year there was a report in the Hindu saying that the Tamil Nadu High CourtJudges have agreed to disclose their assets. But the Chief Justices said that these records cannot be accessed under the Right to Information act, 2005. I wondered how the Chief Justice can make such a statement without passing appropriate rules. So I filed an RTI to know the status of how many judges have declared assets so far and the copies of those declarations. I did not get any reply for a month and so I filed a first appeal. Since I did not get a reply even for my first appeal, I filed a second appeal on 4th February 2009 with the State Information Commission. To this I received a 2 sentence order from the Commission in which the PIO was asked to give me the information I had asked for.I went and enquired which commissioner it was who passed such a direction.

So I went and confronted him as to why he did not issue a SCN. I also told him bluntly that such an order will not have any effect, and also that he was legally wrong and that he should have issued a SCN since there was already a delay. First he tried to confuse me saying, that the prime intention of the RTI act was to get information and so that was his priority. He said that penalising will come in later. When I persisted that he should have penalised, he said that since the order is a formal order issued by the Commission, he will not allow me to discuss it. He also told me that if I was not happy with the order, then I had to file a writ in the High Court. I told him that it was not just about my order, but also about the general practice of sending such useless directions in many cases. If the directions have no effect, then we need to complain again to the commission which means another 8 month wait. He refused to talk anything about this, and told me that he will not discuss a formal order since his was a judicial forum. I tried a couple of times, but he did not budge. So I walked away.

After coming back from the Commission, I did some amount of checking on various aspects with respect to what the Chief Commissioner told me. I talked to RTI activists from Kerala, Andhra Pradesh and Maharashtra and learnt that Tamil Nadu is the only state where directions are given without a hearing. The essential points of what I learnt were.


1. First of all, is the question of whether the State Information Commission is a judicial or a quasi judicial body? This is important since this is what decides whether the Information Commission can pass orders without giving an opportunity to the parties to present their cases. There seems to be a strong consensus among lawyers and activists, that the Information Commissions are indeed Quasi-Judicial bodies and hence that is how they have to be dealt with.

2. There are two consequences of it being a quasi-judicial body. The first one is that the Chief SIC was correct in his stand that he cannot discuss his order with me without the other party being present. But the second, and the more important, consequence, is that quasi-judicial bodies cannot pass orders without giving the parties an opportunity for hearing. In my specific case and in most other cases where orders are passed without a hearing at the Commission, the commission's orders are favourable to the applicant in that, the order says that the information has to be disclosed. Though we might think that the SIC is erring in our favour, the problem is that if the PIO does not comply with this, we have to file a follow-up again with the SIC which will again take 8-10 months (in addition to the delay already had for getting the written order). In case of hearings, we can at least insist on a Show Cause for penalty. But since these written orders are passed without any hearings, we cannot even insist on that.

As a consequence of this being a quasi Judicial body, the SIC should not pass such orders. This has been clearly established in the Supreme Court judgment that can be found here. Please read point number 35 of the judgment. Thus, a second problem with such orders is that though it is in our favour, the order becomes illegal since no hearing was done. Thus if this order goes to the high court, our case will become very weak if there was no hearing. As far as I have checked, no other state in India or the CIC passes orders without a hearing. Tamil Nadu is the only state where this practice is followed. For both these reasons, I think I should insist on a hearing. I realise that given the present backlog of cases, it is impractical to have a hearing in all cases, but I really wonder if that is a good enough justification for allowing the SIC do something that is illegal.

I think such a practice of passing orders which dont carry Show Cause Notices for penalties, is detrimental to the RTI act in the state, since it doubles the time taken to resolve a case. In my case, what I did was this. Sometime back, I remember Mr.Krishnaraj Rao an RTI activist from Maharashtra, using section 4(1)(d) of the Right to Information act, which says that

“Every Public Authority shall provide reasons for its administrative or quasi-judicial decisions to affected persons”.

So I gave a letter to the Public Information Officer of the State Information Commission with a copy to the Chief Commissioner asking me to give reasons for not imposing Show Cause Penalty and not stipulating time limits for the High Court within which they should furnish information. Let me see what happens on thursday.

While on this issue of Judges assets declaration, it has come has a real good news, that the Judges assets bill, which prevented public access of the assets declaration statements of judges has been withdrawn (at least for now).

On oral instructions, MTC loses more than a crore.

This happened before the elections. Metropolitan Transport Corporation (MTC) suddenly dropped fares without any prior intimation. It was evident that this was done with an eye on the elections. This was, of course, widely reported in the newspapers.

http://timesofindia.indiatimes.com/Cities/Chennai/Bus-fares-down-EC-not-amused/articleshow/4470040.cms
http://www.hindu.com/2009/05/01/stories/2009050158450300.htm
http://www.hindu.com/2009/05/03/stories/2009050359930400.htm

This reduced fares were maintained for 4 days, but it was withdrawn, when EC came down heavily on this. As reported in the third article listed above, the MTC lost 35 lakhs on 30th April alone. I filed an RTI to know further information about this. The RTI application can be seen here. The replies I got to this can be seen here. Rough calculations (considering that May 1st was a public holiday, and that May 2nd and 3rd were Saturday and Sunday), MTC lost more than a crore on these 4 days. Considering that a bus costs roughly Rs.15 Lakhs, MTC could have added 6-7 buses to their fleet with this money. And it was wasted. Just because some politician asked MTC reduce fares just to please voters. I think what is more important to do in this case is to try nail down the responsibility of this reduction to one person and extract from him as to who exactly asked him to reduce fares. And then hope that it will serve as a lesson for others who want to interfere in the future. As is obvious from the reply, for questions 2-9 they have given a vague reply. I have filed a first appeal. Let me see if I get proper answers from them. If not, it will again be a long drawn out case, since I will have to approach the State Information Commission. This information was highlighted in The Hindu here. Actually, that I should file an RTI application, was itself suggested by Shyam of The Hindu. I think it will be a worthwhile cause to pursuse it to the end.

What is the shortest time needed for RTI to have effect?

Less than 24 hours is the answer. A colleague, Jayalakshmi told me that she had applied for an "Address Proof Card" which is being issued by the post offices on payment of Rs.240. She had applied for this in February, and she hasnt heard anything about it yet. Her repeated attempts to find out the status of her application at the Post Officer were only answered with "It will come". So she came to me. I told her that we can file an RTI applicaiton. And so I drafted an application, emailed her, asked her to fill in her details like address etc, enclose a copy of the receipt she obtained on payment of Rs.240 and asked her to enclose a Postal Order for Rs.10 as application fee. This she sent by post.

I gave the draft in the morning. She took a printout in the afternoon and sent it by post. The next morning at 10 AM she was at my place smiling. She said that the Post master there had called her and told her that the ID card was ready long time back and that she needs to go to the Mylapore office and collect the card. He also told her that she could have just come and asked him and as to where there was a need to file an RTI. She told him that she tried that many times and that she could not get an reply. He also requested her to come to his office and get back the application. He also offered that he will ask his people to cancel the Postal order and refund the amount of Rs.10.

After meeting me she went to Mylapore post office to collect the card. There too a senior official gave her his mobile number and told her that she can contact him directly over phone if she has any problems. She came back to my office at 11 Am with the card in hand. The card that was eluding her for 5 months, brought to her hand in 24 hours, by the Right to Information act, 2005.

The draft RTI application can be seen here.

Additional Fee - CIC's Important Order

I filed an RTI application with the Southern Railways in February 2008. In that application, I asked for copies of various rules related to different quotas in train tickets booking (like emergency, tatkal) and also asked for the number of tickets booked under each quota. In reply to this I got a letter from Mr.A.Cyril Raj, Asst. Public Information Officer & Dy. Chief Manager/Claims. This communication stated that the information I had asked for comes to 47 pages, and that I have to furnish 94 rupees to get that. In addition to that, I was also asked to pay 750 rupees for the 8 man hours it would take to collect the information.

I filed a first appeal against this and the appeallate authority upheld the order of the PIO saying that the cost of maintenance of MIS applications, CPU and hard disk power etc were considered when 750 rupees were asked. Against this I filed a second appeal with the Central Information Commision on 10th June 2008. Nothing much happened after this and I kept waiting. Another appeal that I filed with the CIC after this appeal was also heard, but I did not hear much about this earlier appeal.

About a month back, there was this notice on the CIC website which I came to know of. This said that a hearing was scheduled for June 8th in which the scope of section 7(3) (additional fee) was going to be heard by a bench of commissioners. So I thought that my case was put on hold till this bench decides on the issue. But to my surprise I received a notice for a hearing of my case on 19th June 2009. I called up the commission and informed them that since I will not be able to come to Delhi for this, I wanted the hearing to be held through video conferencing. To this the official told me that if a video conference has to be scheduled, then the date of hearing has to be changed which cannot be done. So I asked him to hold the hearing through audio conferencing to which he agreed and took down my number.

On 19th June 2009 at 3.30 PM the hearing was held. I joined in on my phone. But by the time they called me, it seemed that the PIO has already put forward his arguemnts. When I joined the commissioner Ms.Annapurna Dixit, asked me put forward my points in the argument. I pointed out that there was inconsistency in the what the PIO and the Appellate Authority said. While the PIO talked only about man hours, the Appellate Authority said that the cost includes maintenance of MIS applications, hard disk, CPU power etc. I said that this clearly shows that the demand of Rs.750 was arbitrary. The more important point was that under RTI there is no scope for charging man power and maintenance costs as "further fee" under RTI.

The commissioner agreed that there was no scope for charging this information under RTI, but advised me not to ask voluminous information in future. I immediately refused saying that the information I had asked was not voluminous in nature, and that I had asked only information related to only 1 train for a continuous period of 10 days. To this the PIO said that running this query will affect the online booking system. Then I pointed out that having done my Masters in Computer Applications, I knew a little bit about databases and that what the PIO claimed was wrong. I also pointed out that when I make a booking online, I run several queries before finalising my trip schedule, and that one more query wont bring the system down.

To this the PIO said that the information I asked cannot be compared to my querying while online booking since online booking contains details only about the last 5 days, and the information I had asked for was from the archived data. This clearly was a contradiction. When the query I had to run was on archived data, how can the PIO claim that this query will bring the online booking system down. This I pointed out to the Commissioner.

At this point, the commissioner said that she did not want to get into a debate about this and so I left it at that. I also requested her to state clearly in her order that there is no scope for man power and maintenance fee costs under RTI.

I was reasonably happy at the way the hearing went, except for the fact that when the PIO claimed that the information I sought was voluminous the Commissioner wanted to advise me, but when I pointed out how the claim of "Voluminous" data, was wrong, she backed out of the debate.

About a week later the decision was put up on the web (can be seen here). The order categorically stated that there was no scope for charging manpower and maintenance costs under section 7(3) of the Right to Information act, 2005. But there was a disappointment for me.

The order says that I agreed that the information I had asked for was voluminous. This is totally untrue. I dont know why the order says so. In fact I spent a considerable part of the hearing bringing out the inconsistencies of the Southern Railways claim that the information I had asked for was voluminous. I wonder how such a statement can be given in the order. I have already filed a complaint with the Commissioner and the Assistant registrar about this sentence in the order. But when I called up the Asst registrar, I was told that the Commissioner was on leave for 1 month and hence nothing can be done right now. Will have to wait for a month for that to see what can be done.

This was covered in Dinamalar, a Tamil Newspaper and Times of India. The link to the Times of India article is given below.

Authorities can't ask for money to give info, says CIC

The Dinamalar article can be seen here.

Some General Updates

My recent posts have been about specific issues, and so a the regular work I do has been missed out. I will try to cover them here. All through the last 6-8 weeks I have been trying to get the State Information Commission to look at follow-up of Show Cause Notices seriously. In reply to an RTI application I filed with the State Information Commission, I got the following Information.

Month, Year	Number of Appeals & Complaints	Number of cases disposed without hearing	Number of cases disposed after a hearing	Number of Show Cause Notices	Number of Penalties
Jan '09	2421	1019	74	35	0
Feb '09	2211	1177	249	21	0
Mar '09	2821	1373	443	35	0

The discrepancy in the last two columns is because SCNs are not followed up by the commission. I raised this issue with the registrar, and he too said that, that was a weak area. I asked him to begin with follow-up right away and as a start, he can begin with Show Cause Notices of Jan 2009. He said that finding out the cases where a SCN has been issued is difficult. I offered to him, that I can get him the list of cases of Jan 2009 where a Show Cause Notice has been issued, and that he can do a follow-up of them. This list I gave him the very next day and he asked me to give him a week for that. I gave him two weeks. Since the registrar gave me proper details I also tried to find him the details of the backlog of cases. He said that the problem was with the lack of clerical staff. On Jun 19th he told me that appeals/complaints that had come till May 2009 have been seen by the commissioners. But it was typing of these orders that were causing the delays. He also said that if only they worked on saturdays too, could they clear the backlog. I went to meet him again yesterday and he said that last saturday all the staff had come to office and worked and that this will continue this saturday also. That was some good news.

As for the follow-up of Show Cause Notices, he himself had asked the staff to draw up the list of cases from Jan in which show cause notices were issued, and he told me that he would do something about it by the first week of July.

Everytime I meet the registrar, I make it a point to raise the issue of web updates, since that is the only way that that the public can keep a tab on the quality of decisions of the Information Commission. So far decisions till Feb 2009 have been uploaded to the website. This is a huge improvement over what the scenario was, a few months back.

In the meanwhile I have also done an analysis of the January 2009 jugments of the State Information Commission. In a discussion yesterday regarding isuing Show Cause Notices to all cases where it is due, or at least, if the commissioner decides not to issue a Show Cause Notice, an explanation, as to why SCN was not issued, the Chief Commissioner said that similar orders have already been passed both in written and orally, but that the other commissioners were not heeding him. I will take this up with each of the commissioners tomorrow and the following week.

On 17th June I was invited to participate in a discussion on the functioning of the Information Commission in WIN TV. The anchor had based on the statement of the Chief Central Information Commissioner, that the government is trying to stifle the act, by not allocating enough funds. Elango from Makkal Sakthi Iyakkam with whom I worked on the protest, and another lawyer, whom I had not met before, was part of the discussion. I somehow felt, that the whole discussion was not really focussed. It seemed that the anchor was trying to sensationalise the whole thing. The lawyer, who was part of the discussion, did not really have much experience with RTI, but was there just because she was a lawyer. The anchor too kept jumping from one issue to another without discussing the details of one specific issue fully. Discussing the condition of the State Information Commission, would have been a useful topic, and that is what I thought, at the beginning of the session, would be discussed. I somehow, at the end of it all, felt that the discussion was pointless and it would have been much better, if there had been a pre show discussion with the participants on the issues to be discussed and the direction the discussion should take.

The following incident in the programme, will sum up the level of discussion. At the end of the phone call to the State Information Commission, the anchor asked the Registrar, if the Registrar knew that this specific program that has been running on WIN TV, has been espousing the cause of the Right to Information, the registrar said that he didnt. After the phone call, the anchor made a statement that went like "If the Commission does not know about this program on WIN TV, that has trying to spread the word about the Right to Information, that shows the how well the commission was functioning". I wondered how knowledge of the TV program could in anyway be an indicator of the functioning of the commission. In fact, before I was called for the program, I had no idea that such a program was on.