Flout the Constitution~II
Editorial in The Statesman, Monday, 12 May 2008
The law requires the SPIO to provide the information sought or reject
the application within thirty days of receipt, but it took me ten
months and ten days to secure an apology for a piece of information,
and that too months after the Chief Information Commissioner of the
state had intervened.
On 16 May 2007, the SPIO received my application. As no reply was
received within the prescribed deadline of one month, I brought the
matter to the notice of the CIC for necessary action under Section 18
(1) (c) of the Right To Information Act.
On 11 July 2007, the Secretary, West Bengal Information Commission
forwarded a copy of my complaint to Timir Kanti Bhowmik, Deputy
Secretary and SPIO, home department, directing him to furnish an
action taken report within a fortnight.
As no response was received within the given time, on 28 August 2007,
I sought advice from the West Bengal Information Commission as to what
further action I should take. I also wanted to know what penal action
the commission had taken or proposed to take against the defaulting
SPIO. Under the law the State Information Commission has the power to
fine the defaulting officer up to Rs 25,000.
On 8 October 2007, i.e. 42 days after I had addressed the letter, L.
Chakravarty, Deputy Secretary and SPIO, home department, informed me
that "the reason" for appointing the three retired IAS officers as
members of the WBHRC cannot be informed as the definition of
"information" in section 2 (f) of the Right to Information Act does
not include the "reason" for the decision/action of public authority.
On 25 November 2007, I wrote back to SPIO with a copy to the Chief
Information Commissioner that the Right to Information Act does not
expressly exclude "reason" from the definition of information and,
among other things, "opinions" and "advices" received and considered
by the concerned authorities are also information as defined by the
statute. Further, I wanted to know if the appointment of the three
former Chairmen of the WBPSC as members of the WBHRC was in consonance
with Article 319 (b) of the Constitution and, if so, the copies of
opinions and advice as well as copies of all relevant documents
including the file notings in each case of these appointments may be
furnished. Moreover, I pointed out that in the absence of the details
of the documents accessed, I was unable to specify the ones I needed.
I sent a copy of this letter to the Chief Information Commissioner
On 3 December 2007, apparently on receipt of the copy of my letter
dated 25 November 2007, the Chief Information Commissioner decided to
conduct a hearing in his office on 19 December 2007.
Subsequently, S L Chakravarty, SPIO, home department advised me by a
letter that "copies of opinions and advices pertaining to the
appointment of three retired chairmen of the West Bengal Public
Service Commission, namely, R N Sengupta, N. Krishnamurti and S. N.
Roy as members of West Bengal Human Rights Commission are not
available in the relevant files accessed by the State Information
Officer and as such the same cannot be furnished to you."
At the hearing on 19 December 2007, the home department officials
iterated that opinions and advice pertaining to the appointment of
three retired chairmen of the WBPSC as members of the WBHRC were not
available. I and another complainant in the same matter insisted that
the SPIO furnish the opinions and advice as well as the details of the
relevant file notings. We also insisted on imposition of penalty under
the law for refusal to furnish information under Section 20 read with
Section 7(2) of the RTI Act.
The commission ordered that "the public authority shall within seven
days from the date of hearing place before the commission all the
relevant files and the commission would then examine them and decide
the matter". The commission signed this order on 3 January 2008 i.e.
15 days after it was passed .
When for the next seventy-three days, I heard nothing further from the
State Information Commission, on 1 March 2008, I wrote to Arun Kumar
Bhattacharya, Chief Information Commissioner, venting my frustration
over the evasion and obfuscation at the level of the SPIO and the
delays at his own level.
On 17 March, the Chief Information Commissioner passed an order on my
complaint. Dispatched by registered post on 25 March, I received it on
The operative part of the order runs as follows: "While examining the
files the commission observed that there is no mention of any opinion
or advice of any official either in any correspondence or in the note
sheet regarding applicability of the provisions of Article 319 of the
Constitution of India in the case of appointment of the three
ex-Chairmen of the WBPSC as members of WBHRC. However, copies of the
proceedings recommending their names by the selection committee and
appointment thereof are available."
The commission sent me the "documents as available in the files as
much as they relate to the specific queries of the applicant".
The copies of the agenda papers and briefs for the selection
committees and notifications are incomplete. For example, while the
copy of the recommendation for the appointment of R N Sengupta as
member of the WBHRC has been furnished, a copy of the notification of
his appointment has not been provided. The WBHRC was constituted by a
notification dated 31 January 2005, but the proceedings of the
selection committee recommending his appointment is dated 17 November
1994. This would mean that his appointment to the WBHRC was
recommended more than two and half months before the Commission came
into existence. The agenda note for the selection committee dated 21
November 2000 stated that R N Sengupta had demitted office on 28
September 2000 on completion of the term of his office as a member of
the WBHRC. All this has only confounded the confusion over the date of
his assumption of office as member of the WBHRC and the length of his
Curiously, copies of the papers furnished to me by the state Chief
Information Commissioner have not been attested or authenticated by
any officer. None of the papers, though they are apparently
photocopies copies, carries the signature of any official.
Speaking at a seminar in Kolkata on "Right to Information Act:
Opportunities and Challenges" on 23 April, Wajahat Habibullah, Chief
Central Information Commissioner, stated that states like Maharashtra
and Delhi have made rapid progress in implementing the Act, but the
governments of Bihar, Orissa, Uttar Pradesh and West Bengal "lack the
pro-active approach and are bad in giving information". Echoing him,
Mr Arun Kumar Bhattacharya said that "pro-active disclosure is used
only 10 per cent of the time".