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Bureaucracy is stumbling block on road to accountable governance: Kerala SIC

By Venkatesh Nayak*
The Supreme Court in a landmark judgement about transparency in the banking sector announced on December 16, expressed its concerns about the manner in which many Public Information Officers reject people’s requests for information under The Right to Information Act, 2005 (RTI Act). Some Information Commissions are only adding their weight to the problems that are increasingly preventing the effective implementation of the Act, instead of resolving them. The latest instance of this trend is from Kerala.
In January 2015, Ms. Shikha Chhibbar, Project Officer, Access to Justice Programme, CHRI, submitted an RTI application to the Home Department, Government of Kerala seeking information about action taken to comply with the Supreme Court’s directives in the matter of State of Gujarat vs Kishanbhal [(2014) 5 SCC 108] delivered in in January 2014. She paid the RTI application fee of Rs. 10 using an Indian Postal Order (IPO).
The Public Information Officer (PIO) of the Home Department promptly returned the RTI application stating that IPO was not a recognised mode of payment under the State Government’s RTI Rules and demanded fee payment in cash or through Bank draft or court fee stamp. As fee payment in cash was not possible due to the distance between Delhi and Thiruvananthapuram and court fee stamps bought in Delhi would not be acceptable in Kerala, Ms. Chhibbar sent a Bank draft spending more than triple the amount on bank charges and postage.
Simultaneously, she filed a complaint with the Kerala State Information Commission (SIC) arguing that IPOs were not prohibited by the RTI Rules as a mode of fee payment and that the value of the IPO could be readily realised by the PIO upon presenting it to the concerned post office for redemption. This complaint case filed in January was decided by the Kerala SIC on 2nd December.
The SIC has dismissed the complaint holding that IPOs are not a valid mode of payment under the RTI Rules and that the PIO’s action of rejecting the RTI application was not improper or illegal. Despite the Complainant pointing out that Section 7(1) of the RTI Act permitted a PIO to rejection of an RTI application only by invoking the exemptions specified in Sections 8 and 9 of the RTI Act and no other reason would be valid or legitimate, the SIC chose to ignore that plea. Nor did the SIC bother to make a recommendation to the State Government to consider amending the RTI Rules to include IPOs as a valid mode of payment.
The Central Government and several State Governments accept IPOs for fee payment. Members of the RTI fraternity in Kerala have pointed out the deteriorating situation vis-a-vis the implementation of the RTI Act in Kerala thanks to an SIC which is not only orthodox in its approach to transparency but also has several vacant posts of Information Commissioners. The recent order of the Kerala SIC only strengthens this collective impression. The Home Department has sent some documents as evidence of action taken to implement the Apex Court’s directives.

Background of the RTI intervention – ascertaining compliance with a set of directives of the Supreme Court

The Kishanbhai case was about the acquittal of the Respondent in a case of rape-cum-murder of a six year old girl child in 2003 in Gujarat, for want of convincing evidence. The judges of the Apex Court expressed their anguish at having to set aside the conviction because the prosecution had not been able to prove its case beyond reasonable doubt, despite their conscience being troubled by the barbarity of the crime. In order to make shoddy investigators and incompetent prosecutors accountable for acquittals of such kind in criminal cases, the Apex Court laid down a mechanism for reviewing such cases to ascertain the reasons for the lapses, fixing responsibility and launching disciplinary action against errant officers, documenting such cases for use in enhanced training programmes for investigators and prosecutors. A series of directions to this effect are given at the end of the text of the judgement.
Several experts of human rights law and criminal law have been critical of the “conviction oriented-ness” of this judgement. However neither the State of Gujarat, nor any of the other Government or any human rights/criminal law expert or advocacy organisation has sought a review of the directions of the Apex Court in this case. So under Articles 141 and 144 of the Constitution these directions have attained the status of law that all jurisdictions must comply with. In January this year, we decided to ascertain the steps taken by States and Union Territories to comply with these directions. It was in this context that Ms. Chhibbar filed her RTI application with the Home Department of Kerala.
In several States leading RTI activists and campaigners agreed to partner with us and seek information from their Governments about the action taken to comply with the Apex Court’s directives inKishanbhai. Armed with the circular issued by the Union Home Ministry (MHA) drawing the attention of the Governments of all States and UTs, they filed RTIs in 27 States and 3 UTs to ascertain compliance.

RTI interventions woke up the Governments of Maharashtra, J&K and Manipur to the Apex Court’s directives

Maharashtra SIC was the first to take up this matter. Mr. Bhaskar Prabhu of Mahiti Adhikar Manch and National Campaign for People’s Right to Information (NCPRI) filed 3 RTI applications (thanks to the 150 word limit) with the State’s Home Department seeking details of action taken on the Apex Court’s directives. The Government did not bother to respond. The matters escalated to the SIC in less than 4 months – remarkable speed as compared to other Information Commissions which receive a large number of appeals and complaints that remain pending for several months or even years on end. The State Government initially denied knowledge of the MHA circular.
When Mr. Prabhu submitted a copy of the same to the SIC, it became apparent that the State Government had slept over it for more than a year. The SIC took a grave view of the lackadaisical manner in which the Government had dealt with the Apex Court’s directives. The SIC directed the Chief Secretary to inquire into the lack of response to the RTI applications on such an important matter as compliance of the Apex Court’s directives and recommended launch of disciplinary action against the officers found delinquent as a result of the inquiry. This order was issued in May, 2015. Not having received any communication from the Government about action taken on the SIC’s order, Mr. Prabhu has once again sought details of compliance with the SIC’s order under the RTI Act.
The SIC of Jammu and Kashmir (J&K SIC) was the next authority to take note of similar non-compliance on a complaint filed by RTI activist and journalist Mr. Raman Sharma. Upon not receiving any reply from the State Home Department to his RTI application regarding compliance with the Apex Court[‘s directives in Kishanbhai, he filed a complaint with the J&K SIC. The Home Department pleaded that it had not received Mr. Sharma’s RTI application at all. However evidence of submission of the RTI application was provided during the hearing to prove otherwise.
The submissions of the J&K Police who attended the hearings revealed that although they had issued some instructions after receiving the MHA’s circular the committee that was required to be constituted to inquire into lapses of the investigating and prosecuting authorities as directed by the Apex Court had not been set up until the J&K SIC took notice of the RTI complaint. The J&K SIC recommended that the State Government implement the directives of the Apex Court in letter and spirit. It also issued a penalty show cause notice to the PIO of the J&K Home Department.
The Manipur SIC has also taken note of this matter. Mr. Joykumar Wahengbam, Executive Director, Human Rights Initiative and a Co-Convenor of NCPRI filed an RTI with the State’s Home Department about action taken on the Apex Court’s directives inKishanbhai. The PIO rejected the RTI application pointing to a circular issued by the State Government 10 years ago exempting the entire Home Department under Section 24 of the RTI Act. When the matter escalated to the Manipur SIC, in November this year, the SIC rejected the Home Department’s plea holding that implementing the Apex Court’s directives is related to allegations of violation of human rights and therefore the PIO should disclose all information to the applicant free of charge within 45 days. Mr. Wahengbam is still waiting for the information.
In many other States this matter has escalated to the concerned SICs while in a few others some documents relating to compliance with the Apex Court’s directives in Kishanbhai have been supplied. While RTI is proving to be a very useful tool in demanding transparency about lack of action in public authorities on key issues, the somnolence or impunity, as the case may be, of the bureaucracy is proving to be a stumbling block on the road to accountable governance.

*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi

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