Sunday, June 15, 2014

SOCIAL AUDIT DECISIONS DATED 10-06-2014 -FAA LET OFF

Date: 15-06-2014                                                                By email & post

To,
Chief Information Commissioner,
Central Information Commission,
August Kranti Bhawan, Bhikaji Cama Place,
New Delhi110066
Email: rajiv.mathur@nic.in

Respected Sir,

Subject: Decisions No. CIC/AD/A/2013/000873SA, CIC/AD/A/2013/000874SA
 And CIC/AD/A/2013/000875SA all dated 10-06-2014


As part of social audit and citizen participation in governance, I happened to peruse captioned decisions. With a view to improve quality of decisions and making RTI effective and user-friendly, I respectfully point out following infirmities in the said decision:

2. The appellant was made to visit FAA FIVE TIMES for hearing. Ld. IC has expressed his displeasure over such attitude of FAA and rendered few advices. He has avoided even summoning FAA for explaining why disciplinary action against FAA should not be recommended, for avoidable horrible harassment to a common citizen in terms of time, cost, mental agony and inconvenience of travel etc. In fact action of FAA amounts to obstructing supply of information, by tiring out the appellant. Not only FAA has thus trivialized RTI, Ld. IC has sent wrong signals, as if public servants have right to harass common citizens and enjoy it. Actual recommending disciplinary action was second step after considering explanation of FAA.

3. FAA should be facilitator of supply of information under RTI Act, while his acts as above were blatant transgression of letter and spirit of RTI. It manifests his negative and malafide attitude towards RTI. Action of FAA was not only in violation of RTI Act but also lacked empathy towards common citizen, who was made to beg for information. This act must be in violation of service rules of FAA. Ld. IC has lightly taken mockery of RTI by FAA, while it affects fundamental right of citizen in a democratic country where citizen is the king. Act of FAA is against principle of good governance, as conceptualized by Hon’ble Prime Minister.
4. I append below few decisions of CIC which should have been taken into consideration as precedent by Ld. IC,  pursuant to  judgement dated         01-06-2012 of Hon’ble High Court of  Delhi in W.P.(C) 11271/2009 –Registrar of Companies  v/s D. K. Garg: 

CIC/SG/A/2010/001352/8407 dated 05-07-2010,
CIC/SG/A/2010/000085/6895Adjunct dated 05-07-2010
CIC/AT/A/2008/00290 dated 17-07-2008
CIC/AD/A/2010/000952 dated 18-08- 2010
CIC/AT/A/2010/000451 dated, the 18-11- 2010 [SBI]
CIC/DS/A/2011/000220 dated 12-05-2011
CIC/AT/A/2007/01502 dated 24-10-2008 [LIC]
CIC/SM/C/2011/000867 dated 02-08-2011,
CIC/SM/C/2011/000863 dated 02-08-2011,
CIC/SM/C/2011/000873 dated 02-08-2011,
CIC/AD/C/2011/001744 dated 13-01-2012 [Railway board] CIC/DS/A/2013/000593 dated 17-09-2013

There are many such orders of CIC and also of some SICs [like Gujarat, Punjab etc] which have passed orders making FAA accountable for breach of duties clamped on him under RTI Act.

5. I also append extracts from judgement of Higher Judiciary and you can vet said decision in light thereof:

a]  “A citizen is not expected to indulge in futile litigation and endless chase in overcoming technical hurdles and obstacles for seeking information. Public authorities are not obliging him by giving him information because the rule of the day is transparency, accountability in public dealing and public affairs and in relation to public fund. --- Hon’ble High Court of Bombay in Writ Petition No.378 OF 2009 on 30-11-2010

b] “1. People in power and authority should not easily lose equanimity, composure and appreciation for the problems of the lesser mortals. They are always expected to remember that power and authority must be judiciously exercised according to the laws and human compassion. Arrogance and vanity have no place in discharge of their official functions and duties. ” -Supreme Court on 18-02-2010 in Civil Appeal Nos. 1429-1430 of 2010

c]  In Lucknow Development Authority V/S M .K. Gupta the Apex Court held that when public servants by malafide, oppressive and capricious acts in performance of official duty causes injustice harassment and agony to common man, renders the State or its instrumentality liable to pay damages to the person aggrieved. And the State or its instrumentality is duty bound to recover the amount of compensation so paid from the public servant concerned. (1994) 1 SCC 24,

d]….…..”Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally but the injury to society is far more grievous. Crime and corruption thrive and prosper in the society due to lack of public resistance. Nothing   is more damaging than the feeling of helplessness. An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning in offices instead of standing against it. Therefore the award of compensation for harassment by public authorities compensates the individual, satisfies him personally but helps in curing social evil.  It may result in improving the work culture and help in changing the outlook”. --Supreme Court on 05-11-1993 in Lucknow Development Authority v/s M. K. Gupta. [Emphasis added]

6. While appellant was present, no one was present for respondent or his CPIO or FAA for hearing by Ld. IC. One can imagine public image of CIC in public authorities that a SDM level officer does not respect CIC. Ld. IC too did not comment on such absence in his decision nor sought explanation for absence, while presence is mandatory for CPIO or his representative in hearing at CIC. Such soft corner has emboldened govt officers to trivialize RTI and to laugh at ICs, at the cost of information seekers.

7. Ld. IC has also made supply of document copies on payment of charges, though appellant will be getting it after nearly 18 months of his filing RTI.

8. While you are first among equals, you can at least use your good offices to ensure that RTI applicants/appellants are not harassed by CPIOs and FAAs and that ICs do not indirectly support such acts in their decisions, which will embolden other FAAs to frustrate appellant by making him make rounds and rounds of FAA without accountability to none.


Thursday, June 05, 2014

JUSTIFICATION FOR REASONS FOR DENIAL UNDER RTI

JUSTIFICATION FOR REASONS FOR DENIAL UNDER RTI

Most of PIOs deny information by just quoting sub-sections of section 8.1 of RTI Act, without giving meaningful justification for arriving at that reason for denial. This is against letter and spirit of RTI Act. I quote decisions of CIC and judgments, which can be quoted in first and second appeals.

Decisions of CIC [Central Information Commission]:

A] “Through this Order the Commission now wants to send the message loud and clear that quoting provisions of Section 8 of the RTI Act ad libitum to deny the information requested for, by CPIOs/Appellate Authorities without giving any justification or grounds as to how these provisions are applicable is simply unacceptable and clearly amounts to malafide denial of legitimate information attracting penalties under section 20(1) of the Act.”CIC/OK/A/2006/00163 dated 7 July, 2006.


B] “The PIO has to give the reasons for rejection of the request for information as required under Section 7(8)(i). Merely quoting the bare clause of the Act does not imply that the reasons have been given. The PIO should have intimated as to how he had come to the conclusion that rule 8(1)(j) was applicable in this case.”CIC/OK/C/2006/00010 dated 7 July, 2006.
Refer: CIC/SG/A/2011/003607/17371 dated 10-03-2012

C] “Access to information, under Section 3 of the Act, is the rule and exemptions the exception. The information can be denied only if it is exempt as per the provisions of Section 8 or Section 9 of the RTI Act. Further, while denying information the authority withholding the information must show satisfactory reason and such reason should be germane and based on some material. Sans this consideration the information cannot be denied………” CIC/BS/A/2013/000681/4968 dated 24-04- 2014.

Court Judgements:

D] “6. This Court is inclined to concur with the view expressed by the CIC that in W.P. (Civil) 12428/2009 order to deny the information under the RTI Act the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8 (1) of the RTI Act. In the instant case ………….” Hon’ble HIGH COURT OF DELHI in W. P.  (C) 12428/2009 & CM APPL 12874/2009 DEPUTY COMMISSIONER OF POLICE versus D.K.SHARMA –Judgement dated 15-12-2010

E] “If no reasons are given in the appellate orders, then it is injustice to the natural justice because quasi judicial obligations are giving reasons for order, since justice is not expected to wear the inscrutable face of a sphinx” Hon’ble High Court of Kerala in Ibrahim Kunju v. State of Kerala AIR 1970 Ker 65.

F] Judgement of HON’BLE HIGH COURT OF DELHI
in WP(C) No. 3114/2007 decided on  03.12.2007 :

“12………As is reflected in its preambular paragraphs, the enactment seeks to promote transparency, arrest corruption and to hold the Government and its instrumentalities accountable to the governed. This spirit of the Act must be borne in mind while construing the provisions contained therein.

13. Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1)(h) and other such provisions would become the haven for dodging demands for information” _______________________________________________________





Sunday, June 01, 2014

SOCIAL AUDIT OF DECISION OF CIC

Date: 30-05-2014                                                                            By email & post

To,
Ms. Manjula Prasher
Information Commissioner
Central Information Commission,
August Kranti Bhawan, Bhikaji Cama Place,
New Delhi110066
Email: m.prasher@nic.in

Hon’ble Madam,

Subject: Decision No. CIC/VS/A/2013/001127/MP Dated 15-05-2014


As part of social audit I happened to peruse your captioned decision. You have upheld non-disclosure of note sent to RBI by respondent bank and instructions issued to internal auditors, under section 8.1.e [fiduciary relationship].

With a view to improve quality of decisions and RTI, I respectfully point out following infirmities in the said decision:

1. The issue pertains to ATM failed transactions where in account is debited but cash is not dispensed at ATM. RBI vide its circular dated              17-07-2009 had mandated that banks should suo moto compensate customer @Rs.100/- per day of delay, if the amount of such transaction is not credited back within 12 [reduced to 7 from 17-05-2011] working days from date of complaint by customer. Massive movement from April 2010 by a senior citizen of Pune has revealed that majority of banks are not paying compensation amount as directed by RBI. This amount is in crores if all banks are put together. There was no reason to take assurance to you of bank officers on face value that RBI directives are followed. Thus this issue is in larger public interest.

2. Instructions by way of circulars to internal auditors cannot be treated as under fiduciary relationship, since such circulars are to be proactively disclosed under section 4.1.b. [v]. Even RBI puts all its circulars on its website.

3. As per RBI instructions, a note is required to be placed before Boards of the Banks and copy is to be sent to RBI on quarterly basis, to enable RBI to monitor the issue. It contains only statistical data on ATM failed transactions and steps taken to ensure that compensation is paid with failed amount of transaction expeditiously. Pune crusader got these notes from RBI pertaining to private banks under section 2f of RTI Act. Many Public Sector Banks also supplied such note to him under RTI directly.

4. Circular and note as above are prepared as part of official duty of bank officers and hence cannot be treated as “voluntarily supplied by third party.”

5.  I have posted a write-up on fiduciary relationship under RTI at following link, perusal of which will convince you about error in said decision:

https://www.box.com/s/21403f11a9319dc332f8


6. Absence of appellant in hearing casts extra responsibility on IC to empathize with him/her, so that his/her non-presence does not become reason for injustice

7. I hope my above feedback will be cogitated upon by your Honour for future decisions. This will avoid wrong precedence by other CPIOs and to block information against letter and spirit of RTI Act. Citizens rightly expect correct, unbiased and reasoned decisions [ref: Judgement of Hon’ble Supreme Court in Kranti Associates Private Limited and another v. Masood Ahmed Khan and others, (2010) 9 SCC 496], with total application of mind from IC of your stature and back-ground. I am also sure that you, as guardian of RTI of citizens, do not intend to take disadvantage of inability of common appellants to move High Courts against every defective decision. Each decision may now be costing nearly Rs.15000/- to public exchequer.

8. May I quote from judgement dated 05-11-1993 of Hon’ble Supreme Court in LUCKNOW DEVELOPMENT AUTHORITY V/s. M.K. GUPTA:

….….. .  Harassment of a common man by  public  authorities is socially  abhorring and  legally impermissible. It may harm him personally but the injury to society is far more grievous. Crime and corruption thrive and prosper in the society due to lack of public resistance. Nothing is more damaging than the feeling of helplessness. An  ordinary  citizen instead of  complaining  and  fighting succumbs  to  the  pressure of undesirable  functioning  in offices instead of standing against it. Therefore the award of  compensation  for harassment by public  authorities  not only compensates the individual, satisfies  him  personally but helps in curing social evil.  It may result in improving the work culture and help in changing the outlook.

…… Today   the  issue  thus  is  not      only  of  award of compensation but who should bear the brunt. ….. The authority empowered to  function under  a  statute while exercising power  discharges  public duty.  It has to act to subserve general welfare and  common good.  In discharging this duty honestly and bonafide, loss may  accrue  to any person.  And he may claim compensation which  may in circumstances be payable. 

But where the duty is performed capriciously or the exercise of power results in harassment and agony then the responsibility to pay the loss determined should be whose?  In a modern society no authority can arrogate to itself the power to act in a manner which is arbitrary.  It is unfortunate that  matters which  require immediate attention linger on and the man  in the  street  is made to run from one end to  other  with  no result.  The culture of window clearance appears to be totally dead.  Even in ordinary matters a common man who has neither the political backing nor the financial strength  to match  the  inaction  in public oriented  departments gets frustrated  and  it erodes the credibility  in the  system.

Public administration, no doubt involves a vast amount of administrative discretion which shields the action  of administrative authority.   But where  it is  found that exercise of discretion was malafide and the complainant is entitled to compensation for mental and physical harassment then the officer can no more claim to be  under  protective cover. When a citizen seeks to recover compensation from a public authority in respect of injuries suffered by him  for capricious exercise of power ………..
[emphasis added]

Yours faithfully,


J. P. Shah

Copy to:
Chief Information Commissioner,
Central Information Commission,
New Delhi - 110 066 Email: rajiv.mathur@nic.in
--If such decisions are not checked, other Information Commissioners at CIC and SICs would be tempted to replicate it as precedence. You may order review to correct defects