In my discussions with the State Information Commissioners, I could see that there was a lack of understanding of the penal provisions of the Right to Information act. Though these can be seen from the orders, I will point out two discussions that are illuminating.
In a discussions with the Chief Commissioner, I raised the issue of the Commission's orders not adhering to the penal provisions of the Act. I told him that even in a written order Show Cause Notice should be issued if there has been a delay. This was not being usually done. But he picked up one order and read it out to me. This was on an appeal to the commission. Usually written orders on appeals to the commission are passed after 6 months from the date of appeal. This order said "The Public Authority is directed to supply the information within 30 days of this order, and if not done, the Public Information Officer, has to appear before the commission to explain why penalties should not be imposed on him/her". He read it out proudly saying that he had issued Show Cause Notice in a written order. I then pointed out that this is still a violation because, even if the PIO supplies information now, there has still been more than 6 months delay in supplying information. But as per the order, this need not be explained, since the order says that ONLY IF information is not given within 30 days, the PIO has to show cause. When I pointed this out to him, he couldnt answer it, and said he will think about it.
Another discussion was with Mr.T.R.Ramasamy. Here again I raised the issue of the commission not adhering to the Penal Provisions of the act. He said that he was indeed imposing penalties wherever needed. I tried to show an example where the commissioner Mr.T.Srinivasan had recommended disciplinary proceedings under section 20(2) of the act, but has not imposed penalty under Section 20(1). I questioned such an order, saying that section 20(2) cannot be imposed without 20(1). He argued that it was not yet clear whether both can be imposed in the same case. But he was missing the point. Section 20(2) differs from 20(1) only by a word "persistently". That is, if a PIO persistently violates the act, 20(2) should be used. If the PIO violates the act in that case, 20(1) should be invoked. So a PIO might not have violated the act persistently but only in a specific case, so 20(1) has to be invoked, but 20(2) should not be. But when section 20(2) is invoked, saying that the PIO is persistently violating the act, then it is obvious that in this case violation has happened and so section 20(1) has to be imposed. When I pointed out this difference, he claimed that there was no such difference in the act. Then I pulled out the act and he referred his own book and only then did he realise that there was a difference between section 20(1) and Section 20(2). That is, for the past 8-9 months orders have been passed, without understanding this distinction.
Coming to the orders that have been passed, I have collected a few of them here.
Section 20(1) of the Act is clear on the penalties and there is no scope for different interpretations here. Penalty has to be imposed in all the cases where the Public Information officer has,
1. without any reasonable cause refused to receive an application for information
2. without any reasonable cause not furnished information within the time specified under sub-section (1) of section 7
3. malafidely denied the request for information
4. knowingly given incorrect, incomplete or misleading information
5. destroyed information which was the subject of the request
6. obstructed in any manner in furnishing the information.
In all of the above cases penalty SHALL be imposed. It is very important to note that there is no scope for discretion here once one of the six above scenarios have been established. Discretion lies in only deciding whether reasonable cause is present or not. Once that is done, then penalty has to be imposed. The Act says that the Public Information Officer shall be given a reasonable opportunity of being heard before any penalty is imposed on him. So the commissioners are supposed to issue Show Cause Notices in all of the above cases.
Here are the examples to show up these violations by the commissioners.
1. 8615/08 - 5-Dec-2008 - RR, SNA - In this case a hearing was first held on 4th July 2008 where Show Cause Notice was issued. But when it came up for hearing again on 5th Dec 2008 there was no talk about the SCN. The commission just notes that information has been given, and hence nothing else needs to be done. (Both the orders are enclosed)
2. 8865/08 - 3-Dec-2008 - SR,GR,RR - The dates given in this order are confusing. But the commission notes that there has been a delay despite an order of the Commission. But since information was given, the case is closed. This is a clear violation of the act. The commission HAS to impose the penalty in this case as per the act. But they havent done that.
3. 9341/08 - 15-Dec-2008 - TR,RP - The commission notes in the last para that for an RTI application filed in 21-Feb-2007, the petitioner was given a reply only on 12-Dec-2008 which amounts to a delay of about 22 months. And that too incomplete. But the commission does not issue a SCN. What were the commissioners thinking here?
4. 10091/08 - 29-Dec-2008 - TS,SNA - Information has been received only after a previous order of the commission. Exact delay is not known since the order does not give the date of RTI application. But when it is heard a second time, and known that information has been given, the commission does not even bother to check whether there has been any "Reasonable cause" for the delay.
5. 12160/08 - 15-Dec-2008 - Here the commission had previously passed orders(7656/08) to give information within 10 days. Even at that time there was no show cause notice despite the delay. Today when it came up for hearing again, after 4 months of previous orders, information is still not fully given. But still there is no show cause notice. The PIO is just given another 5 days.
6. 13026/08 - 23-Dec-08 - This is again a terrible order, though the violation of the PIO is not delay here. The RTI application sought some information which was partly with this department. The rest was with some other department. ANd so at the hearing, the PIO says that information related to his department has been furnished, but the rest relates to a different department and so cant be given. THis is a clear violation by the PIO since he should have transferred the application to the department concerned. Even teh commissioner does not seem to realise this and directs the petitioner to approach that department for the rest of the information. Hopeless.
7. 13953/08 - 29-Dec-2008 - For an RTI application filed on 15th Jun 2007 seeking four sets of information, three of those replies were given only on the date of the hearing (29th dec, after 18 months). But still no show cause notice. No examination of reasonable cause. Nothing.
8. 14182/08 - 22-Dec-08 - Here, on the first two lines of the second page of the order, the commission notes that the Public Authority has not given a direct honest answer. In spite of this, the commission gives 30 days time. And if information is not given within this time, penalty will be imposed. But what about the delays that happened so far. The commission does not bother. This is just an empty threat.
In other months there have been even more funny cases.
9127/08 - 4-July-2008 - Date of RTI application is 15-12-2006. A show cause notice was already issued at a previous hearing on 16-May-2007. Even there were some problems in giving information (the actual problems are not very clear from the order), but the commission again issues a Show Cause Notice. Double Show Cause Notice. The penalty should have been imposed now since an apporutnity was already given.
7664/08 - 28-Aug-2008. Sec 20(1) of the RTI act talks about penalties in case of violations by PAs. Sec 20(2) talks about recommending Disciplinary Proceedings in cases of PERSISTENT violations by PAs. The difference between both is that sec 20(2) has to be invoked when a PA is seen to be violating again and again. So it is common sense that whenever Sec20(2) is invoked, Section 20(1) should also be invoked. Whereas, Sec 20(1) can be invoked without section 20(2). But in this case. Section 20(2) is invoked without calling in Section 20(1). This is plain lack of knowledge about the act by the commissioners.
The solution to these kind of violations is coming up with a set of guidelines for issuing Show Cause Notices and imposition of penalties. This has been done CIC as can be seen in these minutes http://cic.gov.in/CIC-Minutes/Minutes12082008.pdf.
All the decisions referred to here can be downloaded from here.
http://www.box.net/shared/axkm8lmmyj
In a discussions with the Chief Commissioner, I raised the issue of the Commission's orders not adhering to the penal provisions of the Act. I told him that even in a written order Show Cause Notice should be issued if there has been a delay. This was not being usually done. But he picked up one order and read it out to me. This was on an appeal to the commission. Usually written orders on appeals to the commission are passed after 6 months from the date of appeal. This order said "The Public Authority is directed to supply the information within 30 days of this order, and if not done, the Public Information Officer, has to appear before the commission to explain why penalties should not be imposed on him/her". He read it out proudly saying that he had issued Show Cause Notice in a written order. I then pointed out that this is still a violation because, even if the PIO supplies information now, there has still been more than 6 months delay in supplying information. But as per the order, this need not be explained, since the order says that ONLY IF information is not given within 30 days, the PIO has to show cause. When I pointed this out to him, he couldnt answer it, and said he will think about it.
Another discussion was with Mr.T.R.Ramasamy. Here again I raised the issue of the commission not adhering to the Penal Provisions of the act. He said that he was indeed imposing penalties wherever needed. I tried to show an example where the commissioner Mr.T.Srinivasan had recommended disciplinary proceedings under section 20(2) of the act, but has not imposed penalty under Section 20(1). I questioned such an order, saying that section 20(2) cannot be imposed without 20(1). He argued that it was not yet clear whether both can be imposed in the same case. But he was missing the point. Section 20(2) differs from 20(1) only by a word "persistently". That is, if a PIO persistently violates the act, 20(2) should be used. If the PIO violates the act in that case, 20(1) should be invoked. So a PIO might not have violated the act persistently but only in a specific case, so 20(1) has to be invoked, but 20(2) should not be. But when section 20(2) is invoked, saying that the PIO is persistently violating the act, then it is obvious that in this case violation has happened and so section 20(1) has to be imposed. When I pointed out this difference, he claimed that there was no such difference in the act. Then I pulled out the act and he referred his own book and only then did he realise that there was a difference between section 20(1) and Section 20(2). That is, for the past 8-9 months orders have been passed, without understanding this distinction.
Coming to the orders that have been passed, I have collected a few of them here.
Section 20(1) of the Act is clear on the penalties and there is no scope for different interpretations here. Penalty has to be imposed in all the cases where the Public Information officer has,
1. without any reasonable cause refused to receive an application for information
2. without any reasonable cause not furnished information within the time specified under sub-section (1) of section 7
3. malafidely denied the request for information
4. knowingly given incorrect, incomplete or misleading information
5. destroyed information which was the subject of the request
6. obstructed in any manner in furnishing the information.
In all of the above cases penalty SHALL be imposed. It is very important to note that there is no scope for discretion here once one of the six above scenarios have been established. Discretion lies in only deciding whether reasonable cause is present or not. Once that is done, then penalty has to be imposed. The Act says that the Public Information Officer shall be given a reasonable opportunity of being heard before any penalty is imposed on him. So the commissioners are supposed to issue Show Cause Notices in all of the above cases.
Here are the examples to show up these violations by the commissioners.
1. 8615/08 - 5-Dec-2008 - RR, SNA - In this case a hearing was first held on 4th July 2008 where Show Cause Notice was issued. But when it came up for hearing again on 5th Dec 2008 there was no talk about the SCN. The commission just notes that information has been given, and hence nothing else needs to be done. (Both the orders are enclosed)
2. 8865/08 - 3-Dec-2008 - SR,GR,RR - The dates given in this order are confusing. But the commission notes that there has been a delay despite an order of the Commission. But since information was given, the case is closed. This is a clear violation of the act. The commission HAS to impose the penalty in this case as per the act. But they havent done that.
3. 9341/08 - 15-Dec-2008 - TR,RP - The commission notes in the last para that for an RTI application filed in 21-Feb-2007, the petitioner was given a reply only on 12-Dec-2008 which amounts to a delay of about 22 months. And that too incomplete. But the commission does not issue a SCN. What were the commissioners thinking here?
4. 10091/08 - 29-Dec-2008 - TS,SNA - Information has been received only after a previous order of the commission. Exact delay is not known since the order does not give the date of RTI application. But when it is heard a second time, and known that information has been given, the commission does not even bother to check whether there has been any "Reasonable cause" for the delay.
5. 12160/08 - 15-Dec-2008 - Here the commission had previously passed orders(7656/08) to give information within 10 days. Even at that time there was no show cause notice despite the delay. Today when it came up for hearing again, after 4 months of previous orders, information is still not fully given. But still there is no show cause notice. The PIO is just given another 5 days.
6. 13026/08 - 23-Dec-08 - This is again a terrible order, though the violation of the PIO is not delay here. The RTI application sought some information which was partly with this department. The rest was with some other department. ANd so at the hearing, the PIO says that information related to his department has been furnished, but the rest relates to a different department and so cant be given. THis is a clear violation by the PIO since he should have transferred the application to the department concerned. Even teh commissioner does not seem to realise this and directs the petitioner to approach that department for the rest of the information. Hopeless.
7. 13953/08 - 29-Dec-2008 - For an RTI application filed on 15th Jun 2007 seeking four sets of information, three of those replies were given only on the date of the hearing (29th dec, after 18 months). But still no show cause notice. No examination of reasonable cause. Nothing.
8. 14182/08 - 22-Dec-08 - Here, on the first two lines of the second page of the order, the commission notes that the Public Authority has not given a direct honest answer. In spite of this, the commission gives 30 days time. And if information is not given within this time, penalty will be imposed. But what about the delays that happened so far. The commission does not bother. This is just an empty threat.
In other months there have been even more funny cases.
9127/08 - 4-July-2008 - Date of RTI application is 15-12-2006. A show cause notice was already issued at a previous hearing on 16-May-2007. Even there were some problems in giving information (the actual problems are not very clear from the order), but the commission again issues a Show Cause Notice. Double Show Cause Notice. The penalty should have been imposed now since an apporutnity was already given.
7664/08 - 28-Aug-2008. Sec 20(1) of the RTI act talks about penalties in case of violations by PAs. Sec 20(2) talks about recommending Disciplinary Proceedings in cases of PERSISTENT violations by PAs. The difference between both is that sec 20(2) has to be invoked when a PA is seen to be violating again and again. So it is common sense that whenever Sec20(2) is invoked, Section 20(1) should also be invoked. Whereas, Sec 20(1) can be invoked without section 20(2). But in this case. Section 20(2) is invoked without calling in Section 20(1). This is plain lack of knowledge about the act by the commissioners.
The solution to these kind of violations is coming up with a set of guidelines for issuing Show Cause Notices and imposition of penalties. This has been done CIC as can be seen in these minutes http://cic.gov.in/CIC-Minutes/Minutes12082008.pdf.
All the decisions referred to here can be downloaded from here.
http://www.box.net/shared/axkm8lmmyj
1 comment:
Excellent collection of information. Hats-off. Please submit this to press and expose this nonsense to the people.
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