Citizen RTI Campaign Demands Disposal of 2nd Appeals within 45 Days, Quoting Earlier Judgements
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.
 
“Para 5:
 
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.
 
Para 6:
 
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. 
 
“Para 21:
 
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. 
 
Para 22:
 
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)
 
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    As CBI Books Top Brass of Mumbai Airport for Fraud, CIC’s Volte Face Shields Them on Accountability
    Last week, the Central Bureau of Investigation (CBI) booked the chairman of the GVK group of companies, GVK Reddy and his son, Sanjay Reddy, managing director of the Mumbai International Airport Ltd (MIAL) for financial fraud to the tune of Rs705 crore, in the running of the airport, thus emphasising that such public-private partnerships must be transparent in their functioning, as they get 'substantial' aid or collaboration from the government and are answerable to the public under the Right to Information (RTI) Act.
     
    Ironically, a sustained RTI campaign by Pune-based RTI activist Sanjay Shirodkar, since April 2008, to bring MIAL as a public authority under the Act, bore fruit in 2011 when chief information commissioner (CIC) Sushma Singh ordered that MIAL is a public authority under the RTI Act. MIAL is in joint venture with the Airports Authority of India (AAI) for upgradation and maintenance of the Mumbai airport.
     
    Curiously though, nine years later, on 18 May 2020, CIC Suresh Chandra reversed Ms Singh’s order stating that it is NOT a public authority. It is interesting to recall that, after the 2011 CIC order, MIAL went to the Delhi High Court to contest the claim that it is a public authority under the RTI Act. However, Delhi High Court sent the petition back to the CIC in 2019. Nine years later, after the CIC order, on 18 May 2020, CIC Mr Chandra orders that it is a private entity! Now, if this is not a rude joke on the public, then what is?
     
    Mr Shirodkar, who is frustrated with the alleged nexus between government authorities and private parties, reeking in his view, of 'crony capitalism’, states, "it is so discouraging and shocking that information commissioners are so far apart in their connotation of what constitutes a `public authority’? How can a CIC, nine years later overturn an order which is clear as crystal on why his colleague previously declared it as a public authority? Now, with the CBI raid, it becomes even more crucial that we need RTI to demand transparency and accountability from MIAL. Instead, I have been slapped with tarikh pe tarikh for nine years and the CIC in May 2020 slams the door on my face."
     
    Shirodkar had requested the following information under the RTI Act:
    • As per Airports Authority of India notification (File No. AAA/PERS/EDPA/Reg/2002) who is the “Competent Authority” at CSIA-Chhatrapati Shivaji International Airport, Mumbai-400099.
    • As per notification (File No. AAA/PERS/EDPA/Reg/2002)and mentioned in Section 18 of it, please provide a copy of policy guideline/government resolution/notification regarding parking or waiting of any vehicle of carriage within the airports and civil enclaves at CSIA-Chhatrapati Shivaji International Airport, Mumbai-400099.
    • Policy guideline/government resolution/notification, if any exemption given under Section 18 of Airports Authority of India notification (File No. AAA/PERS/EDPA/Reg/2002) to any one by the 'Competent Authority' at CSIA-Chhatrapati Shivaji International Airport, Mumbai-400099.
     
    The MIAL official replied that it was not a public authority and that the RTI Act was not applicable to that organisation. Mr Shirodkar filed several RTI applications since 2008 and finally filed a second appeal. The CIC order by Sushma Singh in her order of 30 May 2011 ordered that: "we find no hesitancy in declaring MIAL as a public authority under clauses (d) and (i) respectively, of section 2(h) of the RTI Act. MIAL shall appoint a CPIO and FAA within 30 days of the receipt of this order and shall also fulfil the mandate of section 4(1) disclosure as mandated under the RTI Act, within 2 months of the receipt of this order.”
     
    Aggrieved by the order, MIAL filed an appeal before the Delhi High Court. The Delhi High Court in its order of 17 May 2019 observed that: "…impugned order is set aside and the matter is remanded back to the CIC for a fresh consideration of the issue whether MIAL is a public authority within the meaning of section 2(h) of the Act. While doing so, CIC shall hear the respondent herein as well. The issue being of importance, it shall be appropriate that the same is decided as expeditiously as possible, but within a period of three months as an outer limit. It is made clear that this court has not expressed itself on the merit of the issue, which shall be considered by the CIC.”
     
    Mr Shirodkar had argued that,
    • 50% of shareholding by the MIAL constitutes substantial funding;
    • Stamp duty worth Rs250 crore waived off by the government of Maharashtra along with land and infrastructure of 2000 acres worth more than Rs80,000 crore in Mumbai given on Rs100 per year (lease premium), amounted to 'substantial funding';
    • AAI being the 26% of active partner in this JV had shirked the responsibility answering to public questions under the RTI Act; that for many years, AAI claiming to be the owner of Mumbai Airport property always passed the buck to its lessee i.e., MIAL on questions asked pertaining to owner’s land and infrastructure under RTI Act;
    • That the MIAL was an agent or instrumentality of the state and therefore, 'State' within the meaning of Article 12 of the Constitution of India; that the statutory functions performed by the AAI were enumerated in section 12 of the Airports Authority of India Act, 1994;
    • That the monies payable by the lessee, i.e., MIAL to AAI, were public monies and public funds; that MIAL was performing public functions in public interest; that the MIAL was a part and parcel of the ministry of civil aviation and all the details pertaining to the JV of AAI and MIAL should have been in the public domain i.e., in the website of the ministry of civil aviation in compliance with Section 4(1)(b) of the RTI Act.
     
    The MIAL, though, insisted that it was incorporated under the provisions of the Companies Act, 1956 in the year 2006 as a special purpose vehicle to undertake the operation, management and development of the Mumbai airport. Private participants own 74% of the equity share capital and majority management rights in MIAL and the rest 26% of the equity share capital is held by the Airport Authority of India.
     
    Surprisingly, CIC Suresh Chandra in his 18 May 2020 order stated that MIAL is not a 'public authority’ and Mr Shirodkar should try and get information from the Airport Authority of India (AAI) or from the ministry of civil aviation.  The CIC blamed the delay on the COVID-19 crisis as one of the reasons!
     
    CIC Chandra’ order states: "The Commission, after studying the facts and circumstances of the case, hearing both parties and perusal of records, feels that MIAL is not a ‘public authority ‘under S. 2 (h) of the RTI Act, 2005. We are also of the view that it may be open to the complainant to seek information through public authority for MIAL i.e. AAI or the ministry of civil aviation as the case may be. That being so, the complaint of the complainant is unfounded and the same is rejected. The Commission puts it on record that it could not meet the timelines provided by the Hon’ble High Court due to the reasons including Constitution of Bench, nonappearance of parties and COVID-19 which were procedural and beyond the Commission’s powers."
     
    So, clearly, the vested interests of industry lobbies who collaborate with the government and make a good deal out of public funds and infrastructure are protected while the common citizen is pushed against the wall, for demanding transparency of a public project!
     
    (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
     
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    COMMENTS

    Ramesh Popat

    4 weeks ago

    OMG! Great by VD!

    m.prabhu.shankar

    4 weeks ago

    Theives in the disguise of private entrepreneurs / Companies.

    jjain782

    4 weeks ago

    This shows that justice has not been delayed only it has been clearly denied
    Question is what todo many of us can't wait for another 12 years so surrender

    glnprasad52

    4 weeks ago

    Sorry, without a large nexus, such issues can not be performed by a few individuals. Abuse of power is common in India. This is just a tip of the iceberg and who knows as to what emerges after a decade investigation by CBI? They can make and unmake anything as they like.

    S.SuchindranathAiyer

    1 month ago

    As I have long maintained, the Nehruvian Construct of “Ceasar’s wife” which excuses those in Government employ from all accountability, exemplified by the so called “Judiciary” and down to the recent Modi “Anti Corruption” Law which criminalizes the victims of extortion (the so called “bribe Giver”) rather than the extortionist who abuses State Power for personal pelf, pleasure, and perversions has created a Government sans Governance which sells India and Indians to anybody who is inclined and willing to pay,

    With over 50,000 Second Appeals Pending in Maharashtra, Citizens Urge CM To Fill up CIC Posts, Step up Their Number
    Considering the large number of pending second appeals in the Maharashtra State Information Commission, the Supreme Court (SC) in its 15 February 2019 order had observed that the SIC (state information commission)  should function at its full strength of 11 commissioners (chief and 10 information commissioners). However, one of the petitioners Anjali Bharadwaj had pointed out to the SC that the state government had failed to make appointments. 
     
    Over a year after SC slammed the Maharashtra government, currently the SIC is functioning with only five commissioners even as more than 50,000 appeals or complaints are still pending. This, despite the state government having assured the SC that it would take necessary action.
     
    Speaking to Moneylife last fortnight, Sumit Mullick, state chief information commissioner (SCIC) of Maharashtra, has stated that he is rigorously pursuing with the state government to fill up information commissioners’ vacancies and create three additional ones. Although, the SIC has begun online second appeal hearings from the first week of June, thanks to citizens’ online campaign, he had stated that the need to augment the number of information commissioners is very critical for disposing of second appeals.
     
    Unlike in other states, the posts of information commissioners in Maharashtra have been created as per geographical zones. Thus, IC posts have been created for Mumbai, Brihanmumbai, Konkan, Nashik, Amaravati, Pune, Nagpur and Aurangabad. Of these, the posts of Pune, Nashik and Aurangabad are pending for the past many months. All the present ICs would be retiring between 11 and 21 months’ time and as we all know time runs fast. 
     
    Last week, a group of RTI activists and prominent citizens, including former CIC Shailesh Gandhi, former bureaucrats Mahesh Zagade and Pralhad Kachare, RTI activist Vijay Kumbhar who steered this campaign through the online RTI Katta and several other activists of Maharashtra, took up this issue seriously and dashed off a letter to Maharashtra’s chief minister Uddhav Thackeray, urging him to fill up the vacancies and create additional posts with utmost urgency. 
     
    Their contention is that, "in the State of Maharashtra this sunshine law has been losing its shine day by day, at an alarming rate and it is imperative that it be corrected immediately as it is due to a huge number of 2nd appeals and complaints,  pending before the Maharashtra State Information Commission (MSIC)."
     
    The letter states: "Unlike the Central (Government’s) Information Commission and any of the state (government’s) information commissions across all the other states in India, the state of Maharashtra has adopted a unique geographical bench-wise allocation system whereby the position of an individual information commissioner has been dedicatedly allocated with respect to each revenue division namely, Mumbai, Brihanmumbai, Konkan, Nashik, Amaravati, Pune, Nagpur and Aurangabad. And presently, for a long time now, out of these aforesaid eight constituted information commission benches, the position of three benches namely, Pune, Nashik and Aurangabad bench are vacant.
     
     "The following table summarises the present grim situation:
     
     
    "The following table depicts the geographical bench-wise pendency of second appeals and complaints before the MSIC:
     
    (Source: MSIC Website Period: As on February 2020)
     
     
    "The following table depicts the present status of the existing Maharashtra State Information Commissioners including their being saddled with the burden of an additional charge:
     
    (N.B: In the following table the Acronym CIC stands for Chief Information Commissioner and IC stands for Information Commissioner)
     
    Sr. Name of the Commissioner Position Present Charge Additional Charge About to Retire in Months
     
     
    The letter also reminds the CM that delivery of services to citizens cannot be compromised due to the COVID-19 crisis. They write: "Also, the Hon’ble Supreme Court in suo motu writ (Civil) No. 5/2020 vide its order dated: 6  April, 2020 has expressed that “The challenges occasioned by the outbreak of COVID-19 have to be addressed while preserving the constitutional commitment to ensuring the delivery of and access to justice to those who seek it.”
     
     
    (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)
     
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