With disposal of second appeals and complaints to information commissioners (ICs) taking more than a year or two, frustrating citizen’s effort to procure their rightful information in good time, a group of RTI activists have slammed a legal notice on Maharashtra’s state chief information commissioner, Sumit Mullick, last week, asking him to dispose of second appeal hearings within 45 days, quoting various judicial interpretations to justify their request.
The core of their argument is that when the Right to Information Act (RTI) 2005 was enacted, the Parliament intended that the citizens of India should get information in a time bound manner within 30 days of making an application under Section 6(1) of the Act. If the information did not come by this deadline, then the Parliament had prescribed a penalty of Rs250 per day up to a maximum of Rs25,000. Similarly, when a citizen files a first appeal to the first appellate authority (FAA), if he or she does not get information within 30 days, then the time line for the FAA to provide information is maximum 45 days from the date of filing.
The RTI applicant takes recourse to second appeal, when the public information officer (PIO) and the FAA fail to provide him with the information when already 75 days have passed. However, he or she is made to wait for more than a year, sometimes even two years. Thus, the legal notice sent by leading RTI activists and former bureaucrats – Shailesh Gandhi, Mahesh Zagade, Pralhad Kachare, Vijay Kumbhar –to name a few, argues that, "when the second appeal is not heard and disposed of for an unreasonable period and in fact some for even more than a year then this entire time bound scheme of the Act is abruptly lost in the wilderness and makes it go totally adrift resulting in a grave miscarriage of justice and undermines the faith of the people of India in the participatory democracy which requires an informed citizenry and transparency of information."
To qualify that second appeals should be disposed of within 45 days, the activists in their legal notice, have referred to the following judicial orders:
• The decision of the Hon’ble High Court of Calcutta in W.P. No. 11933 (W) of 2010 Akhil Kumar Roy v/s. The West Bengal Information Commission & Ors. The relevant excerpt from this decision is reproduced below (emphasis added):
“A second appeal arises from a decision in a first appeal under section.19(1), and a first appeal arises from a decision or a failure to give a decision under Section.7. The sparkle of a strong strand of speed woven through the sections of the Act is abruptly lost in the second appeal that has been allowed to run wild. This open ended second appeal scheme is bound to make the Section.6 request go totally adrift generating a multi-tier avoidable and unwanted offshoot court proceedings such as this case.
In my opinion, keeping in mind the respective maximum periods fixed for deciding a first appeal under s.19(1) and disposal of a request for obtaining information under section 7, the second appellate authority should have decided the second appeal within 45 days from the date of filing thereof. In view of the scheme of the statute, I think this period should be considered as reasonable period for deciding on a second appeal. I am of the view that this petition should be disposed of directing the authority to decide the appeal.
For these reasons, I dispose of the petition ordering that the second appellate authority shall decide the petitioner’s second appeal within 45 days from the date of communication of this order.”
• Para 5 & 6 of the decision of the Hon’ble High Court of Karnataka in Writ Petition 28310 of 2015 Jayaprakash Reddy v/s. Central Information Commission & Union of India represented by the Secretary, Ministry of Law & Justice, Parliament House, New Delhi 110 001.
The learned senior advocate would point out that though sub-section (6) of Section 19 of the RTI Act does provide for a time within which a first appeal is to be decided, namely not exceeding 45 days from the date of filing, there is no such time prescribed for deciding a second appeal. The first respondent has indefinitely postponed the hearing and is not deciding the second appeal, therefore the present petition.
It is indeed to be noticed that no time limit is prescribed to decide a second appeal. Therefore, it would have to be interpreted that when no time is prescribed, it would follow that it ought to be decided within a reasonable time. Since there is a time limit prescribed for deciding a first appeal, it would be safe to conclude that a similar period would apply insofar as deciding the second appeal, for otherwise, it would lead to a situation where the object of the Act is not achieved if the authority should indefinitely postpone the hearing and decision of a second appeal.
Consequently, it would be deemed that the second appeal would also have to be decided within a period of 45 days if not earlier, from the date of filing. Since the second appeal filed by the petitioner is pending before the first respondent since October, 2014, and more than a year has elapsed, it would be in the fitness of things to direct the respondent to expedite the consideration of the appeal and pass appropriate order within a period of four weeks if not earlier, from the date of receipt of a copy of this order.”
• Para 21 and 22 of the decision of Hon’ble Supreme Court in Appeal (Civil) 9159 of 2003 M/S. Kusum Ingots & Alloys Ltd vs Union of India And Anr.
When a parliamentary legislation receives the assent of the President of India and is published in an official gazette, unless specifically excluded, will apply to the entire territory of India. If passing of a legislation gives rise to a cause of action, a writ petition questioning the constitutionality thereof can be filed in any High Court of the country. It is not done because a cause of action will arise only when the provisions of the Act or some of them which were implemented shall give rise to civil or evil consequences to the petitioner.
The court must have the requisite territorial jurisdiction. An order passed on writ petition questioning the constitutionality of a Parliamentary Act, whether interim or final, keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act.”
The activists in their legal notice also state that the Supreme Court has ruled that "If the High Court has decided upon that Constitutional question on the provisions of a Parliamentary Act or some of them, then the effect of such a decision of a High Court would be that, this decision shall be uniformly applicable throughout the entire territory of India.
“Thus, in view of the ratio laid down by the Hon’ble Supreme Court in the decision (supra) read in conjunction with the ratio laid down by both the High Courts, namely Calcutta High Court and Karnataka High Court, my clients humbly submit that, the Maharashtra State Information Commission is obliged to dispose of the second appeal filed before it within 45 days from the date of filing thereof."
The activists therefore have sought detailed roadmap from Maharashtra’s SCIC complying with the High Court judgments which order that second appeals under the RTI Act must be disposed of by information commissioners of Maharashtra within 45 days. The activists would seek legal remedies in case the SCIC fails to inform them of his road map within four weeks which is end of July 2020.
Let’s hope this citizen pressure works, for the efficacy of the RTI Act and for the rights of the citizens to get information within good 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 and is the author of “The Mighty Fall