Maharashtra SCIC Ratnakar Gaikwad may have made sharp observations about Mumbai Police's dilly-dallying in providing information to Vinita Kamte. But did he issue an order that is beyond his jurisdiction? Did he avoid giving an order that is really effective?
Ratnakar Gaikwad, the Maharashtra State Chief Information Commission (SCIC) has made scathing observations about Mumbai Police's dilly-dallying in providing information to Vinita Kamte, asking the state government to set up a Commission headed by a judge to probe charges of tampering of call records during the 26/11 Mumbai terror attack, as Moneylife reported on Wednesday.
However, the question arises whether Mr Gaikwad issued an order that is beyond his jurisdiction? If so, what is the utility of such an order? Did he, thereby avoid giving an order that is really effective?
As readers may be aware, Ms Kamte's appeal was regarding discrepancy in the call log records of the 26/11 terror attack provided to her. She was given two separate sets of South Mumbai region police communication records, with different timings, pertaining to the Rang Bhavan Lane episode in which her husband, Ashok Kamte, along with two other top cops were killed.
Following this, Ms Kamte appealed before the SCIC. On 18 April 2013, the SCIC ordered that it is necessary to know that the information is not tampered with and so Additional Commissioner of Police (law and order) should conduct an inquiry and give hearing to the relevant officer and Vinita Kamte, and send the report without fail by 20 May 2013. Thereafter, the Additional Police Commissioner (crime) would be called for hearing under Section 18. The report was submitted to the SCIC by Mumbai Police in the required time. It defended the discrepancies under the pretext that the earlier copy given to Vinita Kamte was a Xerox copy and did not bear the stamp of certification. However, the handwriting did not match in a few places and the timings written by hand also did not match in many places, says Vinita Kamte – some with a difference of even six minutes.
Ms Kamte also requested the SCIC to discard the police report and conduct a fresh inquiry. The SCIC then sent an order to Maharashtra's Additional Chief Secretary on 19 November 2013 to submit a report. However the officer simply forwarded the letter for an inquiry report on 1 December 2013 to the Police Commissioner of Mumbai.
The SCIC then asked Additional Police Commissioner Amitabh Ranjan, Rakesh Maria, then Additional Commissioner (Crime); Vivek Phansalkar, ACP (Admin); Dhananjay Kamlakar, ACP (law and order); Sanjay Barjund, ACP; and Mr Mukne, ACP to be present before it for an inquiry.
However, no officer was present for the inquiry. Two lawyers represented the police officers and shockingly, the lawyers representing Mumbai Police belittled the issue of tampering of call log records at the 6th June hearing.
On 9th July, Gaikwad made scathing observations about Rakesh Maria, the present Mumbai Police Commissioner. Gaikwad observed, that Maria deliberately chose to dodge giving Vinita Kamte the information she had asked for. He ordered that the state government, through the Chief Secretary, should institute a judicial probe by instituting a commission of inquiry under a serving or a retired judge. He quoted the Commission of Enquiry Act to justify his directive.
However, former Central Information Commissioner (CIC) Shailesh Gandhi states that an Enquiry under this Act can be instituted only after a nod from the Legislature or the Parliament, and the SCIC cannot ask for one of his own accord.
If this is so, in issuing an order that goes beyond his jurisdiction, did SCIC miss out on issuing a more powerful order that would come well within his jurisdiction? For example, why didn’t Gaikwad penalise the top brass of the Mumbai Police and other police personnel like the Public Information Officers (PIOs) and Appellate Authorities (AA), and invoke disciplinary action, thereby making his order legally sound and strong? Why did he put the onus on the state government instead?
Gaikwad’s observations in his 10-page order, issued on 9th July, specifically state that the police, despite his orders to probe and submit a report to him, took tampering of the call log records very casually. The discrepancies are very serious, considering that three officers lost their lives, he observed.
The order states that, it is suspicious that Maria, the then Additional Commissioner of Police(crime) who was also in-charge of the Police Control Room on 26/11, should have created hurdles in providing information to Vinita Kamte. Gaikwad also observes that although he has directed four top officials of the Mumbai Police, including Maria to personally attend the hearing, they merely sent their legal representatives. The order also mentions that top police officials defended their personnel who were responsible for the discrepancies in the two sets of the call log records. These observations in the order could become a source of embarrassment for the Mumbai Police as well as the State Government. So, why did he dilute his order by asking the Chief Secretary to set up another government body for probing the incident?
Leading RTI activist Vijay Kumbhar argues that, “The Intention, observations and reasoning given by Ratnakar Gaikwad in Vinita Kamte’s case are very good. However, I am sceptical whether its operative will stand in court of law or not. Also I don’t understand, when the SCIC had ample powers to penalise those responsible (the Mumbai Police) and recommend disciplinary action under Section 20 (2) of the RTI Act, why didn’t he use that? This would have put the top Mumbai Police officers on the mat. It would also have got legal status.”
“However,” Kumbhar says, “if you look at the other angle, which is more important than squabbling over whether his order is legal or not, the state government should suo motu institute a fresh enquiry. Gaikwad’s commentary has proved that there has been deliberate and malicious intention in hiding and also tampering with information regarding the call log records asked by Vinita Kamte. I would say considering the public sentiment and all the police personnel and civilians who were killed in the 26/11 terror attack, the State Government should not have even have waited for this report.”
Gaikwad has quoted Section 19(8)(a) of the RTI Act, 2005 in his order, which states that:
(a) require the public authority to take any such steps as may be necessary to secure compliance with the provisions of this Act, including--
(i) by providing access to information, if so requested, in a particular form
(ii) by appointing a Central Public Information Officer or State Public Information Officer, as the case may be
(iii) by publishing certain information or categories of information
(iv) by making necessary changes to its practices in relation to the maintenance, management and destruction of records
(v) by enhancing the provision of training on the right to information for its officials
(vi) by providing it with an annual report in compliance with clause (b) of sub-section (1) of section 4
RTI activist and former CIC Gandhi said, “I am not sure if he (the SCIC) can give an order to the State Government, to institute an enquiry, but he can certainly ask it to enquire into the matter and submit a report. I feel the state government, if it feels that information provided was fudged or false information was provided as per observations of Gaikwad's order, it could institute a fresh enquiry commission. Alternatively, the state government could challenge this decision in the High Court. Or in case, the order props up a political wheels-within-wheels situation, then may be it might institute an enquiry – you never know.”
Vinita Kamte says, “Since the last five years I have been pursuing the case of allegedly tampered call log records given to me under RTI. Observations in the SCIC's report reiterate the suspicion that the Mumbai Police is deliberately trying to suppress information. My stand is vindicated with his order.”
In conclusion, one wonders why, after such a relentless pursuit for truth from the SCIC's side, the order should have kicked up a ping-pong ball kind of a situation.
Dehli High Court in the matter in WP (C) 12714/2009 ( DDA Vs CIC) has observed:
“Section 18, which has been set out above, deals with the powers and functions of the Central Information Commission as also the State Information Commission. Sub-section (1) stipulates that it shall be the duty of the Information Commission to receive and ―inquire into a complaint from any person where any of the conditions mentioned in clauses (a) to (f) are satisfied. Sub-section (2) of Section 18 stipulates that the Information Commission, if it is satisfied that there are reasonable grounds to inquire into the matter, may initiate an ―inquiry in respect thereof.”
Sub-section (3) of Section 18 provides that the Information Commission shall, ―while inquiring into any matter under Section 18, have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908 in respect of the matters specified in the said provision which, inter alia, includes summoning and enforcing the attendance of the persons and compelling them to give oral or written evidence on oath or to produce the documents or things, etc. Section 18(4) empowers the Information Commission to examine any record to which the RTI Act applies, which is under the control of the public authority, during the ―inquiry of any complaint under the said Act. It also stipulates that no such record may be withheld from the Commission on any grounds.
It is apparent that all the sub-sections of Section 18 refer to the powers of the Information Commission to inquire into a complaint. Section 18(2) deals with the initiation of inquiry by the Information Commission. Section 18(3) spells out the powers of the Information Commission while conducting such an inquiry and Section 18(4) empowers the Information Commission to examine any record to which the RTI Act applies during the course of inquiry by the Information Commission. It is clear from all these provisions that the inquiry that is contemplated under Section 18 is an inquiry by the Information Commission itself. There is no provision for an inquiry to be conducted by any other committee for and on behalf of the Information Commission.
Insofar as the provisions of Section 19, which pertain to appeals, are concerned, the Central Information Commission or the State Information Commission in its decision in an appeal, has the power to, inter alia, require the public authority to take such steps as may be necessary to secure compliance with the provisions of the RTI Act which obviously includes the provisions of Section 4 which spells out the obligations of the public authorities. Section 19(8)(a)(vi) clearly indicates that the Information Commission has the power to require a public authority to provide the Information Commission with an annual report in compliance with clause (b) of sub-section (1) of Section 4. There is nothing in Section 19 which empowers an Information Commission, be it the Central or the State Commission, to constitute any committee to initiate or conduct any inquiry for and on its behalf.
It is clear that there is no provision under the RTI Act which empowers the Central Information Commission or, for that matter, the State Information Commission, to appoint a committee for conducting an inquiry for and on its behalf. The power of inquiry under Section 18, which has been given to the Central and the State Information Commissions is confined to an inquiry by the concerned Information Commission itself. There can be no delegation of this power to any other committee or person. ―Delegatus non potest delegare” is a well-known legal maxim which means – in the absence of any power, a delegate cannot sub-delegate its power to another person.’’
(Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.)
After prima-facie finding Rajan violating insider trading regulations in the company shares, SEBI has barred him from markets
Market regulator Securities and Exchange Board of India (SEBI) has barred Abhijit Rajan, former chairman and managing director (CMD) of Gammon Infrastructure Projects Ltd (GIPL) from markets for prima facie violating inside trading norms. This would be one of the few cases where CMD of a listed company has come under the scanner in an insider trading case.
In an order issued on 17 July 2014, Rajeev Kumar Agarwal, whole time member of SEBI, said, "I am of the prima facie view that this is a fit case where pending investigation, urgent action is required to be taken by way of an ad interim ex-parte order. Therefore, in order to protect the interest of investors and the integrity of the securities market, I, hereby restrain Abhijit Rajan from buying, selling or dealing in securities and accessing the securities markets, either directly or indirectly, in any manner whatsoever, till further directions."
The prohibitory orders would continue till further orders, as SEBI said it is still continuing its investigations into the matter involving trading in Gammon Infra shares on the basis of access to 'unpublished price sensitive information' during August-September 2013 period.
Rajan served as CMD of Gammon Infra till 20 September 2013 and continues to be on the company's board thereafter. Besides, Rajan remains CMD of another listed group firm Gammon India Ltd, where he also holds 5.99% direct and another 29% indirect stake.
In its ad-interim ex-parte order, SEBI also sought a reply, if any, within 21 days from Rajan, who was earlier in December 2006 also barred from capital markets for a period of one year for his alleged role in the rights issue of Gammon India.
In that case, the Securities Appellate Tribunal (SAT) had also dismissed his plea against the then SEBI order.
In the present case, the SEBI said it found that Rajan, being an 'insider', had access to the 'unpublished price sensitive information' and was in possession of the same and he dealt in the shares of GIPL on the basis of that.
"I find that it is imperative for SEBI to deal firmly with such instances of violation by persons in charge of affairs of listed companies in order to send a stern message to deter indulgence in such activities by others as such activities apart from being detrimental to the interests of investors endanger the integrity of the whole securities market," SEBI's whole-time member Rajeev Agarwal said in his order.
SEBI had begun its probe based on inputs from National Stock Exchange (NSE) that "there is a possibility that certain clients might have traded on the basis of unpublished price sensitive information" in shares of GIPL.
In its preliminary probe, SEBI observed that GIPL was an infrastructure project development company promoted by Gammon India holding 71.93% stake.
Another promoter of GIPL is Gactel Turnkey Projects Ltd and holds 3.05% stake. Gactel Turnkey is also the subsidiary of Gammon India.