Tuesday, November 24, 2009

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.

Wednesday, November 18, 2009

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.

Saturday, November 07, 2009

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 :-)



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.

Thursday, November 05, 2009

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.