Last week, we highlighted the alarmingly large numbers of Central and state information commissioners rejecting second appeals to the extent of 87%. This week, we focus on their performances on imposing and executing penalties on public information officers (PIOs) which is pathetic as per the Report Card on Information Commissions of India 2018-19, released last fortnight, which reveals that most information commissioners have literally done away with imposing penalty; thus letting the PIOs go scot-free even though they do not provide the information citizens rightfully seek.
As per Section 20 of the RTI Act, the penalty clause is one of the key provisions, in acting as a deterrent for PIOs, against violating the RTI law; that is, denying information or giving half-baked information to the RTI applicant. To keep a check on them, this Section empowers information commissions to impose penalties of up to Rs25, 000 on erring PIOs for violations of the RTI Act.
However, between 1 January 2018 and 31 March 2019, only nine state information commissions out of 21 information commissions, which provided this information, imposed a penalty on PIOs; the remaining 8 SICs did not divulge information: they did not even bother to provide the information to the study group. These SICs are those of Bihar, Kerala, Karnataka, Maharashtra, Odisha, Punjab, Rajasthan and Uttar Pradesh.
To elaborate further, between 1 January 2018 and 31 March 2019, the SIC of Chhattisgarh led by recommending disciplinary action on 1,097 PIOs. This was followed by the Haryana SIC which penalised 456 PIOs. The number of PIOs penalised by other SICs are as pathetic as this: Uttarakhand – 135, Jharkhand – 29, Gujarat – 2, Telangana – 2, Arunachal Pradesh – 1, Meghalaya – 1 and, Tamil Nadu -1. As for the SICs of Andhra Pradesh, Assam, Goa, Himachal Pradesh, Madhya Pradesh, Manipur, Mizoram, Nagaland, Sikkim, Tripura and West Bengal, zero penalty was imposed which implies that no penalty was imposed at all in any of the second appeals lodged with them.
Even if a penalty is imposed, is it really extracted from the errant PIO’s salary? There is very little data to give us a complete idea. Hence, the report card made by the Satark Nagrik Sangathan (SNS) & Centre for Equity Studies (CES) October 2019 recommends that, "ICs must adopt a standardized format for their orders that contains at least basic information about the case and the rationale for the decision. Each order needs to be a speaking order and must include information on whether the actions of the PIO/officer attract a penalty under any of the grounds laid down in section 20 of the Act, the course of action adopted by the IC (including issuing a show cause notice), and legal basis and grounds relied on by a commissioner if a penalty is not imposed despite the existence of any of the circumstances mentioned in section 20."
Interestingly, a study of 2017, (Tilting the Balance of Power - Adjudicating the RTI Act’, RaaG, SNS & Rajpal, 2017), states: “A random sample of orders of information commissions had found that on an average 59% orders recorded one or more violations by the PIOs, based on which the commission should have imposed penalty. If this estimate of 59% is considered, penalty would be imposable in 68,900 cases out of the 1,16,780 cases disposed by the 22 ICs. Actual penalties though were imposed in 2,091 cases—only in 3% of the cases where penalties were potentially imposable! The ICs therefore did not impose penalties in 97% of the cases where penalties were imposable.’’
Observations of the ` Report Card on Information Commissions of India 2018-19’:
- The failure of the commissions to impose penalties in clearly deserving cases, sends a signal to the PIOs that violating the law will not invite any serious consequences. This destroys the basic framework of incentives and disincentives built into the RTI law and exasperates applicants who seek information at a high cost and often against great odds.
- The laxity in imposing penalties allows PIOs to take liberties with the RTI Act, at the cost of the public. By not imposing even the legally indicated and mandatory penalties, information commissions are increasing their own work-load and encouraging delays and illegitimate denials for the public.
- In effect, this near universal violation by information commissions is threatening the very viability of the information regime in India. If a penalty is imposed each time an RTI application is ignored or illegitimately denied, there would hardly be an application that would be delayed, ignored, illegitimately denied, or otherwise illegally dealt with. Thus, it would most likely change the whole incentive base of PIOs and significantly tilt the balance in favour of the public and of transparency.
- Often, commissioners cite lack of adequate powers to ensure compliance with the law. However, information accessed as part of this assessment shows that ICs are, by and large, reluctant to use even the powers explicitly given to them under the RTI Act—not just imposition of penalties but also the power to recommend disciplinary action against persistent violators.
Agenda for Action
- Information commissioners across the country must collectively resolve to start applying the penalty provision of the RTI Act more rigorously. There needs to be a serious discussion among the ICs to resolve their hesitation in imposing penalties envisaged in the law.
- ICs must adopt a standardised format for their orders that contains at least basic information about the case and the rationale for the decision. Each order needs to be a speaking order and must include information on whether the actions of the PIO/officer attract a penalty under any of the grounds laid down in section 20 of the Act, the course of action adopted by the IC (including issuing a show-cause notice), and legal basis and grounds relied on by a commissioner if a penalty is not imposed, despite the existence of any of the circumstances mentioned in Section 20.
- Applicants and complainants must persistently pursue the issue of imposition of penalty where any violation of the RTI Act has taken place. They need to insist that the ICs detail in each order the reasons why penalty is not being imposed.
- The commissions should maintain a detailed database of the penalties imposed by them, including the name and designation of the PIO, quantum of penalty imposed and date of imposition. This would enable commissioners to identify repeat offenders, so that they can recommend the initiation of disciplinary proceedings against erring PIOs as per the provisions of Section 20.
- In cases where PIOs or PAs refuse to comply, the ICs must initiate appropriate legal proceedings, including approaching the courts, if necessary, for recovery of penalties and enforcement of their directions.
(
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”.)
On agenda for action, there is no gainsaying the importance of imposing penalties. But it would be futile to expect the ICs to reform. The need is to prosecute a few of them under Sec 219 of the IPC which reads as :
Section 219. Public servant in judicial proceeding corruptly making report, etc., contrary to law
Whoever, being a public servant, corruptly or maliciously makes or pronounces in any stage of a judicial proceeding, any report, order, verdict, or decision which he knows to be contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Right now even those who approach courts against the orders of the ICs do so only for reversing the order and do not seek to get punishment for the defaulting ICs. In fact I myself could have done it for each and every decision of the ICs I have in my possession, if only...I had an iota of faith in the efficiency and fairness of our judges. (I believe the judiciary to be the greatest impediment to rule of law, not only by their failure to deliver decisions promptly but also in ensuring that justice is not only done but seen to be done. This being a topic in itself, and my favorite at that, I will refrain from going on a tangent except to state that if the quasi judicial authorities are following the example of our courts they cannot be blamed for it.)
The point about speaking order and a standard format is easy to do but again the question is can you expect the ICs to do that? NO. The simplest standard format could be to list the information sought and state whether it had been given and if given, the date on which given. If not given, what is the valid reason for not giving. The importance of 'valid' need not be over stressed. A simple ' the public authority does not have it' is definitely not a valid reason.
Right now, the only use of RTI Act is for exposing the idiots and traitors among public servants, as per this mission statement of Save RTI Campaign:
SAVE RIGHT TO INFORMATION. USE RIGHT TO INFORMATION ACT.
GET INFORMATION OR......
EXPOSE ATLEAST THREE IDIOTS/TRAITORS* AMOUNG PUBLIC SERVANTS!
1. THE PUBLIC INFORMATION OFFICER
2. THE FIRST APPELLATE AUTHORITY (AND THE HEAD OF PUBLIC AUTHORITY WHERE THE HEAD OF THE PUBLIC AUTHORITY IS NOT THE FAA!) AND
3. THE INFORMATION COMMISSIONER
* An idiot is one who does not know the job s/he is getting paid to do and a traitor is one who knows it but does not do it. Provided that even an idiot can be branded a traitor based on the consequences of his/her action
Now on deep studies of various decisions given recently by information Commissioner's of Central Information Commission, New Delhi, certainly may be challenging effectively.
Public servants must be severally punished for Dereliction of duties else government & public will move distant apart
in acting as a deterrent for PIOs, against violating the RTI law; that is, denying information or giving half-baked information to the RTI applicant. To keep a check on them, this section empowers information commissions to impose penalties of up to Rs25, 000 on erring PIOs for violations of the RTI Act.