Thursday, August 06, 2009

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.

Monday, August 03, 2009

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).