RTI Activism: Did the Chief Information Commissioner subvert RTI provisions to protect a CIC officer?

[Sajib Nandi]

Reported by Girish Mittal in Moneylife.in on July 11, 2012
Did the Chief Information Commissioner subvert RTI provisions to protect a CIC officer? - Moneylife Personal Finance site and magazine

Do CIC officials consider themselves above the RTI Act? Strangely, a larger bench to over-rule the decision of one of the most respected information commissioners of the CIC is not required to deliberate on the penalty

When and why would the Chief Information Commissioner under the Right to Information Act (RTI) constitute a larger bench to over-rule a decision of an information commissioner? The fact is that he simply cannot do it. Decisions of the Central Information Commission (CIC), pronounced through its information commissioners are final and binding according to section 19(7) of RTI Act, 2005. The legislative intent is very clear, there will be an unhappy party for every decision, and if every decision is to be reviewed, the CIC would be bogged with review petitions. Yet, in a bizarre decision, this is precisely what the CIC has done in a recent case and it can only be construed as illegal.

Lets us look at the issue. My father, Kishanlal Mittal, an RTI activist in his own right, requested the following information from Central Information Commission on 15 March 2011:
(a) Copies of all petitions/affidavits pertaining to the decisions of your Information Commission on RTI appeal/complaints or any other RTI related matter filed in any high court/Supreme Court.
(b) Copies of all replies, affidavits, documents and records submitted by your Information Commission to the high court/Supreme Court in connection with any of the above cases.
(c) Copies, with file noting, if the CIC has decided not to contest any case(s) filed by a public authority.
(d) The basis of selection of legal professionals to represent CIC in above cases, list of legal professionals selected, and remuneration including contingencies paid to them.
(e) The information may be provided on a DVD considering the policy of CIC to digitize all documents.

The CPIO (Chief Public Information Officer) on 28 March 2011 replied saying the information cannot be provided by the CIC. An appeal was filed with First Appellate Authority of CIC, who upheld the decision of CPIO... The Adjudicating Authority (AA), in her order of 9 May 2011, claimed to have heard the joint secretary, law of CIC, to whom no notice of hearing was issued and consequently was not present during the hearing—thus making farce of the hearing proceedings. The arguments advanced post-facto were designed only for denial of information. It is also amply evident that the AA has proffered the arguments of the “legal cell” which is the contesting party in this case-and did not apply her mind independently.

Mr Mittal filed a second appeal with CIC dated 15 May 2011 praying for the order of the appellate authority be quashed and information be provided without any further delay.
The case came up for hearing before Information Commissioner Shailesh Gandhi on 12 March 2012. He did not agree with the order of appellate authority and observed that information can be denied only U/S 8 or 9 of the RTI Act, 2005. He also lamented that the neither the CPIO nor the appellate authority made any effort to provide the information. Not only did Mr Gandhi order the information to be provided by 15 April 2012; but also issued a show-cause notice on the CPIO asking her to explain why action should not be taken against her for not providing the information in time mandated U/S 20(1) of RTI Act, 2005.

On the appointed day of the show-cause hearing on 15 April 2012 the then CPIO informed Mr Gandhi that Akashdeep Chakravorty, joint secretary, law of CIC is the person responsible for providing information and he had not provided any information till date to the appellant. Mr Gandhi then issue a show-cause notice to Mr Chakravorty to appear before him on 14 May 2012 with information and explanation for not obeying the order of the Commission. Needless to say Mr Akashdeep never appeared before the Mr Gandhi.

Fearing penalty and disciplinary action, Mr Chakravorty circulated a note to the secretary, Central Information Commission to constitute a larger bench. Secretary, CIC, on 26 April 2012 recommended to Satyanand Mishra to constitute a larger bench and immediately on 27th April, Mr Mishra accepted the recommendation and directed a larger bench to be constituted consisting of Mr Mishra, Ms Annapurna Dixit and Shailesh Gandhi. The case files were recalled from the registry of Mr Gandhi. Needless to say that that the hearing of the larger bench were never held till the time Mr Gandhi retired last week.

Large benches are constituted in the CIC to deliberate on important points of law. Here the decision on the case was already taken and only point remained was to penalise Mr Chakravorty. Mr Mishra is making an ingenious attempt to reinvent the law by attempting to reverse an order passed by a brother information commissioner. It is not only unethical but also bad in law directly contravening provisio 19(7) of RTI Act, 2005. A three-member bench is certainly not required to deliberate on the penalty. This makes amply evident the sinister attempt to prevent Mr Chakravorty from being penalised. It must also be remembered that in the past, Mr Gandhi had ordered an inquiry to be conducted against Mr Chakravorty.

How does an ordinary citizen deal with such blatant illegality perpetrated by none other than the CIC? Can the RTI Act be perverted only to rescue the CICI’s own officer from being penalised? Do CIC officials consider themselves above the Act? Strangely, a larger bench to over-rule the decision of one of the most respected information commissioners of the CIC is not required to deliberate on the penalty.

(Girish Mittal is a Mumbai-based RTI activist.)

[vsprajan]

Sponsorer

Recent Development - Issued a legal notice to the PMO on this incident and also mentioned in that notice that if reply doesnt come within two months, criminal proceedings under 156(3) & 200 CrPC, 1973 will be initiated.

Rajan.

[karira]

Recent Development - Issued a legal notice to the PMO on this incident and also mentioned in that notice that if reply doesnt come within two months, criminal proceedings under 156(3) & 200 CrPC, 1973 will be initiated.

Rajan.

Why the legal notice to PMO ?
What has PMO got to do with it?

Go as per Sec 4 disclosure on CIC website. Does the Secretary of the Commission have one of its functions as asking for review of CIC decisions ?

[vsprajan]

The following extract from the media report clearly pertains to those official actions punishable under Section 218 of the IPC, which is a congnizable offence - "Fearing penalty and disciplinary action, Mr Chakravorty circulated a note to the secretary, Central Information Commission to constitute a larger bench. Secretary, CIC, on 26 April 2012 recommended to Satyanand Mishra to constitute a larger bench and immediately on 27th April, Mr Mishra accepted the recommendation and directed a larger bench to be constituted consisting of Mr Mishra, Ms Annapurna Dixit and Shailesh Gandhi."

The notice was sent to PMO, because, it will finally be redirected to Secretary- DOPT for appropriate reply, and I have this experience in my previous cases also dealing with PMO.

For any information on cognizable offence, any person can move the magistrate u/s 156(3) , 200 CrPC to initiate the process of investigation.

Rajan.