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Is it a crime for a Central Information Commissioner to call for an enquiry if he finds allegedly forged records submitted by a PIO? A Delhi HC order which has given a stay on a PIO’s petition will have far-reaching consequences for a citizen who has the right to get information within 30 days
This is not the first time. In several cases, Public Information Officers (PIOs) have run to the Delhi High Court to seek a stay on impugning orders of Central Information Commissions. The court has granted ex-parte stays resulting in the case languishing for months in the court.
At the receiving end is the information seeker who under the Section 7 (1) of the RTI (Right to Information) Act has the right to get information within 30 days but is denied, due to such needless legal interventions. The other serious consequence at stake is the mockery of the role of Central Information Commissioners who are being strangulated into inaction due to such court verdicts. It also encourages PIOs to file writ petitions for flimsy reasons and get `stays’ in their favour. In short, while at one end, the central and state governments are finding ways and means to dilute and if possible nullify the RTI Act, the judiciary is adding its bit to further strengthen this process of inadvertently clamping information, by such `stays’.
The latest case pertains to an inquiry ordered by CIC Shailesh Gandhi who retired last week. The deemed CPIO who works as joint secretary (Law) in the Central Information Commission succeeded in getting a stay from the Delhi High Court despite the fact that Mr Gandhi had only ordered the “commencement of the inquiry” which is well within his right as the Central Information Commissioner. (There has been no conclusion to the inquiry which could have aggrieved the CPIO).
The sequel of events is as follows:
• On 28 January 2011, RTI applicant Navin Kumar Peer sought status of “action taken” and its outcome report regarding a letter which he had sent to deemed CPIO Akash Deep Chakravarti, joint secretary (law), Central Information Commission on 1 December 2010
• Instead of replying to Mr Peer, on 1 February 2011, Mr Chakravarti sought assistance of the legal cell under Section 5 (4) of the RTI Act, requesting it to provide appropriate response to Mr Peer, the RTI applicant
• On 3 February 2011, Mr Chakravarti also sent a letter to the legal cell stating that the letter sent by Mr Peer is ‘incoherent’ and does not fall under Section 6 of the RTI Act and therefore he was seeking assistance of the legal cell
• Since RTI applicant Mr Peer did not receive any reply, he filed an appeal to the First Appellate Authority (FAA), Anita Gupta
• The FAA recorded that as per the file no reply had been sent and therefore directed the PIO to send a reply to Mr Peer within 10 working days. PIO MC Sharma (of the legal cell) sent an unsigned and undated letter from the legal cell on 25 April 2011
• RTI applicant Peer files second appeal on the grounds that, despite the order of the FAA, the PIO has provided incomplete and unsatisfactory information without any signature or date
• CIC Shailesh Gandhi was given the charge of hearing second appeals against the Central Information Commissions (CIC). During the hearing on 19th April, Mr Gandhi found contradictions in the records pertaining to correspondence between Mr Chakravarti, the legal department and the RTI applicant. Mr Gandhi therefore ordered the “setting up an enquiry under Section-18 of the RTI Act to uncover the true facts. The Commission therefore schedules a hearing to inquire into this on 16th May 2012 at 04.30pm”. Mr Gandhi ordered the presence of Anita Gupta, First Appellate Authority; MC Sharma the then PIO and S Padmanabha present CPIO and Akash Deep Chakarvarti (deemed PIO & JS(law)
• On 15th May, Shailesh Gandhi received a note from Mr Chakravarti, stating that “the Chief Information Commissioner has decided to refer the case to a full bench consisting of CIC and two information commissioners including Shailesh Gandhi”. So,Mr Gandhi adjourns the case.
• However, Shailesh Gandhi does not receive any such formal note from the CIC, as stated by Mr Chakravarti. States Mr Gandhi, “On 22nd May, I had a meeting with the Chief Information Commissioner and JS (law), in which I explained to the CIC my view that referring a part heard matter to a full bench by the CIC has never been done and would not be right legally and ethically. The CIC said he would not issue such an order. Hence next day I issued a notice to the first appellate authority to come and assist me in the enquiry with the records on 29th May
• On 28th May, Mr Chakravarti files a writ petition in the Delhi High Court, one of his grouse being that Mr Gandhi was conducting the inquiry behind his back, when a CIC has every right to take ask a FAA or any other officer to help him in an inquiry. Mr Chakravarti has maligned Mr Gandhi’s character in the writ petition accusing him of misusing his powers.
The matter will now come up for hearing sometime in November. Mr Gandhi has already retired and who knows how many months or years will this case keep pending?
Shailesh Gandhi has raised the following issues in his counter-affidavit which he filed last week:
• Was it necessary to grant an ex-parte stay? Since the only order made was for an enquiry to commence which would have taken some time, what was the urgency to grant ex-parte stay? How was the balance of convenience in favour of the petitioner? What substantial loss/irreparable injury could have occurred to the petitioner if the stay had not been granted?
• While granting ex-parte stay and keeping the matter in November the proposed enquiry was stopped for a considerable period of time. By this precedence, any PIO will make a charge of bias and make charges of prejudice against any commissioner. If the court stays the proceedings of the Commission on such charges, the information commission or such other bodies would not be able to function.
• Are the provisions of Article 226 (3) mandatory and binding in that all ex-parte orders will either be confirmed or vacated within two weeks of the making of the application for vacation of stay?
• Should matters be entertained ex-parte where personal allegations are made against statutory authorities? Will such ex-parte orders not give an impression that the High Court was prima facie satisfied that the allegations of malafides were made out? This will result in reducing the respect for statutory bodies resulting in disrespect for their orders.
• This matter has an importance larger than the specific facts of this case inasmuch as it appears that the Honorable Delhi High Court has made ex-parte stay orders in a considerable number of petitions impugning orders of the Central Information Commission.
After the ex-parte stays are granted the proceedings languish in the high courts, and as a result of the stay, the proceedings before the commission come to a standstill for long periods of time. This frustrates the entire purpose of the RTI Act where, under Section 7 of RTI information is required to be provided by the Public Information Officer within 30 days of the application for information being received. It is therefore in the larger public interest for this Honorable Court to look at the various cases pending in the high court where ex-parte stays have been granted and continue as such without vacation or confirmation for long periods of time.
(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. she can be reached at [email protected])