An activist has demanded a detailed inquiry regarding the UP minister's statement and denial about ‘whipping’ bureaucrats, in the media
Lucknow-based activist Dr Nutan Thankur has requested the Press Council of India (PCI) to enquire into the facts related with the allegedly statement of Azam Khan, a minister in the Uttar Pradesh government. On 30th January, the UP minister had allegedly said that “officers understand the language of whipping”, however next day he clarified that media reports were baseless and done to tarnish him image.
In a letter sent to Markandey Katju, former judge of the Supreme Court and chairperson of PCI, the activist demanded a detailed inquiry in order to bring the truth of whether initial media reports regarding Mr Khan's statement about ‘whipping’ is correct or not, which will also clarify the situation about his later denials.
According to media reports, Mr Khan, the urban development minister, while addressing party workers in the presence of Samajwadi Party chief Mulayam Singh Yadav had said that they (bureaucrats) understand only the language of the ‘cane’. The officials do not work for the welfare of public and instead eye on promotions and transfers, he was reported as saying. The minister lost his cool while listening to the problems of party workers and said, “You will have to keep a whip in hand to keep the officers working”.
Finance ministry says appointing a nodal officer at the ministry level would increase work load. However activists feel this would help RTI applicants as many a times, their applications are shuttled between various departments within the same ministry to avoid responsibility of responding under the RTI Act
The Union ministry of finance (MoF) has filed a petition before the Delhi High Court challenging the decision given by the Central Information Commission (CIC) for appointing a Central Public Information Officer (CPIO) at the ministry level.
The ministry said it has five departments, Department of Economic Affairs, Department of Revenue, Department of Expenditure, Department of Financial Services and Department of Disinvestment. Each department is headed by a separate secretary and the senior-most among the secretaries is also referred to as the finance secretary.
“...the current system is such that the departments have a nodal officer for Right to Information (RTI) matters. Each department has appointed various CPIOs as per work allocation in pursuance of Section 5(1) of the RTI Act, 2005. Any RTI receipt which is received in the office of the nodal office is subsequently marked to respective CPIO of the department for replying to the RTI application. This system is efficient as the query can be sent to the CPIO of the department to which it pertains so that it can be answered adequately and all the information can be effectively given,” the ministry said in the petition.
It said, “...in case a CPIO is appointed for the MoF as such, all the RTI applications of all the departments of the MoF would then come to one point and would be practically inexpedient to the concerned designated CPIO to handle all the RTI applications on all the subject matters allocated by the MoF. The difficulties that would arise inter alia are that the concerned CPIO would not be aware of all the subject matters which come under the jurisdiction of the MoF, the concerned CPIO would anyway have to consult the officers of the department to which the query pertains for information in order to address the query effectively and this would be a time-consuming process that would render the mechanism of getting prompt responses as envisaged under the act infructuous”.
According to Subhash Chandra Agrawal, on whose application the CIC had given the original decision, at a time when different departments of various ministries are themselves confused about subjects dealt by various departments, sais it is very difficult for members of the public about subjects dealt by different departments of a ministry necessitating appointing a nodal CPIO each in all ministries. “It is observed that many a time RTI petitions are shuttled between different departments of the same ministry in a bid to avoid responsibility for responding to RTI petitions,” he added.
Chief Information Commissioner Satyananda Mishra in an order issued on 7 September 2012, had said, "We have something called a ministry of finance with a finance secretary in position. Therefore, it is rather odd that the ministry does not itself have a CPIO. Even if it is admitted that the ministry operates through various departments under it, the ministry itself is in existence as a public authority and, therefore, it needs to have a CPIO. Therefore, we direct the CPIO of the Economic Affairs to place this order before the finance secretary who shall cause to be appointed within one month of receiving this order a CPIO for the ministry or nominate one of the existing CPIOs to act as the CPIO for the finance ministry also."
The finance ministry, however, said that the order passed by the CIC is contrary to the Government of India (Allocation of Business) Rules. “The finding of the CIC to the effect that there is a ministry of finance is founded on erroneous understanding that the ministry is a body independent of the five departments that come within it,” it said.
Requesting the high court to quash the order passed by the CIC, the MoF also pointed out that the order of CIC can have ramifications for other ministries as well since the overall structure of a ministry being comprised/divided into various departments in terms of work, is followed in most ministries under the Government of India.
However, Mr Agrawal feels the argument of increase in work-load by MoF is not true. “Rather appointing a nodal CPIO in all ministries will largely reduce work-load by avoiding misuse of section 6(3) of RTI Act for transferring petitions to each-other department in the same ministry. The MoF, in larger public interest should withdraw its petition,” he said.
The apex court’s order would be a major setback for transparency and democracy in India and would dilute the RTI Act more seriously
The Supreme Court has recently given an order imposing costs of Rs1 lakh on the Karnataka Information Commissioner for what it calls a frivolous litigation. This has serious implications on the Right to Information (RTI), which may be more damaging than the amendments that were stalled by citizens remonstrating.
The facts are as follows: The Commission had approached the Supreme Court against an order by the Karnataka High Court quashing its order. This case has far-reaching implications for the citizen’s fundamental right which has been codified in the RTI Act. An applicant had filed for information from the Karnataka High Court under the RTI Act. The Public Information Officer (PIO) of the court had refused the information on the grounds that the citizen must seek information under the Karnataka High Court rules.
As per the RTI Act, refusal of information can only be under the provisions of Section 8 and 9. The State Information Commission did not agree with the PIO and asked him to provide the information under the RTI Act. The Karnataka High Court had named the applicant as a respondent in the case and quashed the Commission’s order.
The Commission sought to contest this order before the Supreme Court and the petition was filed by an Information Commissioner. The court has taken umbrage to the petition being filed by an Information Commissioner and has said that the Commission and Commissioner have no locus and are wasting public money by challenging the order.
I believe that a very important point of law was involved, which has not been addressed by either the high court or the Supreme Court. Section 22 of the RTI Act expressly provides that the provisions of the RTI Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than the RTI Act.
In other words, where there is any inconsistency in a law as regards furnishing of information, such law shall be superseded by the RTI Act. Insertion of a non-obstante clause in Section 22 of the RTI Act was a conscious choice of the Parliament to safeguard the citizens’ fundamental right to information from convoluted interpretations of other laws and rules adopted by public authorities to deny information.
Section 22 of the RTI Act simplifies the process of implementing the right to information both for citizens as well as the PIO; citizens may seek to enforce their fundamental right to information by simply invoking the provisions of the RTI Act.
By this order the Supreme Court without addressing the provision of Section 22 has sanctified and legitimized denial of information under Right to Information, if any public authority claims there are any rules for giving information. This could have the effect to nullifying the impact and effect of the RTI Act in a serious way. Without Section 22, the Act will become fairly ineffective and public authorities will be able to block many RTI users.
I believe Information Commissions have a legitimate duty to pursue the provisions of the RTI Act and champion them in the spirit of the Act. Very few Commissioners do this, and the Supreme Court’s strictures for a legitimate exercise by a statutory authority are unfortunate. This would discourage Commissions from pursuing their duties. Logically, anyone who is a respondent or a petitioner has locus in a case.
I must point out that there is confusion amongst the courts on the matter of who should be the respondents when a RTI decision of the Information Commission is challenged in a writ. Karnataka and Bombay High Courts call the Commission as a respondent in many cases, and the Andhra High Court issues notice to AP State Information Commissioner and AP State Information Commission as a respondent. The Gujarat High Court named RN Das, Chief Information Commissioner as a respondent in WP 5178/2008, while the Delhi High Court refuses to accept the Information Commission as a respondent since last two years.
The only unexplained exception was in WP 3318/2012 when Shailesh Gandhi (myself), was named as respondent by the court, for discharging legitimate duties as an Information Commissioner. In these circumstances, the Karnataka Commission could not have had clarity on whether it could file a challenge to the ruling. If a citizen can file a PIL, is it so objectionable if an Information Commission challenges a major dilution to the RTI Act?
We recognize the Supreme Court’s jurisdiction in interpreting the law. In this case neither the high court nor the Supreme Court has dealt with the provision of Section 22 of the RTI Act, but appear to legitimize denial of information by all public authorities on the ground that citizens must apply for information under various rules. These have their different provisions and absence of independent appellate structures and penalty clauses.
Apart from this, the Supreme Court has issued a public reprimand to a statutory authority, without compelling reasons. Respect for the rule of law requires respect for the orders of various statutory authorities. This order would be a major setback for transparency and democracy in India. This will dilute the RTI Act more seriously than the removal of file notings from the ambit of RTI. If citizens are not vigilant, RTI will get constricted by such orders. RTI users must become aware of the damaging consequences of this order and discuss its implications.
(Shailesh Gandhi served as Central Information Commissioner under the RTI Act, 2005, during 18 September 2008 to 6 July 2012. He is a graduate in Civil Engineering from IIT-Bombay. Before becoming a full time RTI activist in 2003, he sold his packaging business, Clear Plastics. In 2008, he was conferred the Nani Palkhivala Memorial Award for civil liberties.)