Lately, court orders that are considered to “constrict” access to information largely due to the way they are looked at have become the preferred go-to judgements by public authorities and even information commissioners over those that make access to information and implementation of RTI more effective. This has led to information seekers not getting information even when First Appellate Authorities are passing orders in their favour. It is also leaving them with no redressal. ASHUTOSH M. SHUKLA reports from Mumbai on the issue that is causing much consternation.
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When R B Patil, resident of Jalgaon, Maharashtra, got a letter this October after over a year of waiting stating his second appeal was rejected as it is not “maintainable”, Patil’s quest for information through the RTI route reached a dead-end of sorts.
The Brihanmumbai bench of the Maharashtra State Information Commission (MSIC) cited and interpreted two court orders telling him that a second appeal could only be filed if the first appeal order is not in favour of the applicant or against it.
In the case of Patil, the First Appellate Authority had given an order in his favour but since Patil did not get information despite that, he had filed a second appeal – a practice followed since the enactment of RTI to get information.
The bench, however, rejected his appeal citing the court orders.
The move has also led to activists saying public authorities and Commissioners seem to be going out of way to look for court orders that “constrict” access to information by “misinterpreting” them and overlooking court orders that make RTI more effective, which they call are “pro-transparency”.
His was not the only case. In the case of Ravindra Gaikwad, another appellant who waited for nearly three years to get a response met with the same fate for the same reasons.
The rejection has caused furore of sorts among RTI activists and applicants as they say the decision leaves applicants with no information or redressal making the RTI Act “dysfunctional”.
The move has also led to activists saying public authorities and Commissioners seem to be going out of way to look for court orders that “constrict” access to information by “misinterpreting” them and overlooking court orders that make RTI more effective, which they call are “pro-transparency”.
How and why do orders leave applicants with no information?
The plan to bring changes into appeal procedures started in around March this year. Two benches of MSIC decided to bring changes to appeal procedures of RTI that have been around since the enactment of RTI.
As per Calcutta High Court order and RTI Act interpretation by Commission, second appeals would not be accepted if the First Appeal order was in the applicant’s favour.
The change was prompted after Sunil Porwal, State Information Commissioner (Brihanmumbai bench), MSIC, wrote a letter to Sumit Mullick, State Chief Information Commissioner, MSIC. Porwal mentioned the Calcutta High Court order (Metropolitan Cooperative Housing Society Ltd.& anr Petitioners v/s The State Information Commission & ors. Writ Petition 11292/2009 dated May 10, 2010) and re-reading of the RTI Act for pushing the change.
As per Calcutta High Court order and RTI Act interpretation by Commission, second appeals would not be accepted if the First Appeal order was in the applicant’s favour.
So second Appeals were being converted into complaints after consent from applicants at the two benches, to begin with. If applicants did not consent, they were being disposed off.
Here lay the big apprehension of applicants not getting information even back then. Because as per CIC v/s State of Manipur order by the Supreme Court (2011), the information could not be given under the complaint route and could be done only in the in appeal route.
The SC order made a distinction between complaint and appeal routes so that one of the provisions do not become unworkable or rendered meaningless.
Applicant may not get Information
This would mean that even if the appeal was converted into a complaint, while an officer may be fined or penalised, an applicant may still not get information.
The very same SC order is the second court order cited by Porwal’s office to not entertain a second appeal. The Commission was not forthcoming if they would direct public authorities to suo motu declare information or redressal in a complaint route which would enable an applicant to get information without public authority being asked to give information to applicants directly.
Coming back to recent weeks, the change in appeal procedure seems to be restricted to Porwal’s bench alone as per perusal of recent orders of all five commissioners at MSIC.
“The RTI Act gives the civil court power to commissioners. They can summon records and provide them to applicants even in case of complaints and give information instead of shirking responsibility,” said Bhaskar Prabhu, Mumbai based RTI activist who has criticised Porwal’s decision of rejecting the second appeal and stopping at that. Many activists have also written letters to the chief commissioner over the same.
Orders at Mullick’s bench indicate reverting to the old practice of accepting Second Appeals and directing public authorities and PIOs to provide information even if the first appeal order is in favour of the applicant.
Ditto is the case with at least two more commissioners. In the case of Porwal’s bench, in some cases, appeals were converted while in others they were not and applicants left with no information. “I have still not got any information or told of an alternate route so that I get information. When the FAA ordered, I should have got information or at least the Commission should have helped,” said Patil. He said he may consider approaching court again.
“The RTI Act gives the civil court power to commissioners. They can summon records and provide them to applicants even in case of complaints and give information instead of shirking responsibility,” said Bhaskar Prabhu, Mumbai based RTI activist who has criticised Porwal’s decision of rejecting the second appeal and stopping at that. Many activists have also written letters to the chief commissioner over the same.
Porwal, who has consistently refused to say anything on record, did not get back when approached this time too.
However, activists insisted that Commissioners should not get lost in technicalities and overlook orders that can help citizens get information as that would mean shirking responsibility.
“What they are doing is failing in their duty to provide information to applicants. These court orders they are mentioning were for specific technical issues. Nowhere do the court orders state that while implementing technicalities, Commissions should forego their duty to ensure that applicants get information. Porwal seems to be finding ways on how not to give information instead of giving information to applicants,” said Vijay Kumbhar, a Pune-based RTI activist who has written a letter to Mullick complaining about Porwal. This copy will be updated if Porwal responds.
When asked, Mullick said, “Each Commissioner is independent.” On the need for uniformity in the appeal process in all benches of the Commission, Mullick said, “Uniformity is as per the Act. Act has to be followed (by all).” When asked about if his bench reverting to the old practice of entertaining second appeals, reasons for doing so, being selective and overlooking orders that can make RTI more effective and termed “pro-transparency”, he said “no comments”.
However, activists insisted that Commissioners should not get lost in technicalities and overlook orders that can help citizens get information as that would mean shirking responsibility.
Overlooked “pro-transparency” orders need implementation
There is a whole list of orders that have been around for a few years that are overlooked or not implemented. Prominent among the overlooked are three court orders that have said that 45 days should be considered as “reasonable period for deciding a second appeal”.
Two of these orders were given by Calcutta high Court (2010 and 2012) and by Karnataka High Court (2015). The RTI Act is silent on the number of days in which second appeals should be heard and hence the waiting period is over two years or more in some benches.
The most “misused” judgement – the Girish Ramchandra Deshpande judgement by SC (2012) – too has orders that counter the sweeping narrative to deny information by public authorities and Commission.
“We have circulated these High Court orders many times to Commissioners but they are just not willing to implement it. They have a biased approach towards RTI applicants and look at only those orders that they misinterpret and use to deny or delay in providing information to applicants,” said Prabhu.
The judgement related to penalising public information officers (PIO) by the Punjab and Haryana High Court order is another one.
Non Implementation of Penal Provisions
The RTI Act is among the first Acts that have the provisions of levying penalty and disciplinary action on officers if they fail to provide information in a timely manner.
However, it has been the grouse of applicants and activists that non-implementation of penal provisions has led to the poorer implementation of RTI as PIOs have no fear of flouting the Act. The order had directed the Commission saying that either PIO is not to be fined or fined and not warned and let off.
”Advocate PK Rapria, from Haryana who appeared in the case, said: “Legally they are supposed to implement the order that is binding. Practically they are not implementing. Due to this, public interest suffers. There is no accountability. There are two objectives of the RTI Act – transparency and accountability. Even if information is provided with delay, there is no accountability if officers are not fined or penalised for delay. Above all public interest suffers when information is delayed because the objective is defeated as relevance goes away if one gets after six months over 30 days.”
The most “misused” judgement – the Girish Ramchandra Deshpande judgement by SC (2012) – too has orders that counter the sweeping narrative to deny information by public authorities and Commission.
The Deshpande judgment, briefly put, turned down information requests that sought details of an officer like salary, tax, performance, income tax among others. The order said that the performance of an employee/officer in an organisation is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression “personal information”, the disclosure of which has no relationship to any public activity or public interest. It is used increasingly as officials are getting to know of it to deny information that they think is personal. Once the Girish Ramchandra Deshpande order is cited while denying such information, even Commissions are upholding such denials.
The Rajagopal judgment clearly lays down that except for what violates decency or morality, the claim for privacy cannot be sustained for public records.
However, in Subhash vs State Information Commission, the Punjab and Haryana High Court in 2016 dealt with the Girish Deshpande Judgement. It directed the Information Commission to re-hear the matter after passing an order denying information citing the Girish Deshpande judgement. The full bench of the commission provided information on the corruption of IAS and IPS officers. “Girish Deshpande is not laid down law. In the court, I had argued that Girish Deshpande judgement has no ratio. There are always two parts to judgements always. The ratio is binding on lower courts and Obiter Dicta is not binding. The ratio is reasoning or question of law while Obiter Dicta is just a view the court makes in the light of the case it is hearing, which is not binding on lower courts. Only the reasoning or law portion is binding on lower courts. The Deshpande judgement has not laid down law and is restricted to that particular case. I was able to prove that,” said advocate Rapria who appeared in this judgement too. He had, however, restricted the arguments to corruption and not complaints against IAS and IPS officers.
Another was the R Rajagopal judgement by the Supreme Court in 1994. “The Rajgopalan order was a pro-transparency order which the Commissions and public authorities have wilfully overlooked.
The Rajagopal judgment clearly lays down that except for what violates decency or morality, the claim for privacy cannot be sustained for public records.
The Girish Deshpande judgement should have dealt with that and Commissioners should have seen if it does. In the case of the Calcutta High Court order that is being used to reject second appeals, there is something called literal and purposive interpretation of court orders.
Even if the court orders appear to constrict information, one has to look at the purposive interpretation. Commissioners seem to be interpreting court orders in a way that the purpose of RTI Act itself fails,” said Shailesh Gandhi, former Central Information Commission
(Ashutosh M. Shukla is an independent journalist based out of Mumbai. He has been writing on RTI and transparency-related issues. The views are personal.)
