[HumJanenge] Minutes of Discussion with SCIC, Orissa

Dear friends

Since last five years, the RTI Activists of Orissa have been raising  series of issues relating to mal-functioning of Orissa Information Commission  in the state.   After  retirement of notorious  Chief Information Commissioner Mr. D.N.Padhi, Mr.Tarun Kanti Mishra has been appointed a s new Chief Information Commissioner, Orissa.  Soon after he assumed the office,   he  had held discussion with RTI Activists  about various issues  affecting  effective implementation of RTI Act in the state.  below is the minutes of the meeting.

Regards

Pradip Pradhan

Minutes of Discussion with Mr, Tarun Kanti Mishra, State Chief Information Commissioner, Orissa, at OIC Office, Toshali Bhawan, Bhubaneswar at 4 PM on 18^th Dec 2010       

 A meeting of representatives of Odisha Soochana Adhikar Abhijan with Mr.Taruna  Kanti Mishra, State Chief Information Commissioner, Orissa  was held as scheduled  at 4 PM on  18.12.2010 in his office at Toshali Bhawan, Bhubaneswar  Mr. Pradip Pradhan and Mr. Tapan Mohapatra representing Odisha Soochana Adhikar Abhijan were present. The objective of the meeting was to apprise Mr. Tarun Kanti Mishra the present SCIC, Orissa about the critical issues relating to functioning of Orissa Information Commission and Implementation of RTI Act in Orissa, which used to be persistently raised by the Abhijan over five years last and submit some specific and constructive suggestions for improving the performance of Commission and as well for proper implementation of RTI Act in the state. The issues raised by the Abhijan representatives and response of the State Chief Information Commissioner thereto were as follows.

 A.      IEC activities conducted by OIC – violation of Section 26 of RTI Act.

It was stated by the Abhijan representatives that as per Section 26 of RTI Act the State Govt.  is statutorily responsible  for  conducting the required IEC programmes, such as organising training and awareness activities, publishing booklets and propaganda materials like poster, pamphlet etc. But an opposite trend was found in case of Orissa. Instead  of the State Government conducting the same, Orissa Information Commission was found to remain engaged in conducting the said programmes by way of distributing funds  to  different  Govt. and non-Government organizations during last five years.

 Mr. Mishra wanted to know the exact provision of RTI Act that dealt with the IEC activities, and thereafter perused the relevant one i.e. Section 26. He also wanted to know, what is the practice in other states? The representatives replied that they were not aware about it, but as per the letter of the Act, the Commission should not be involved in IEC activities.

 Mr. Mishra assured that that being the provision of the law he won't not take it up in future.  "However, I will also get to know the practice in other states", Mr.Mishra added. Then he expressed his apprehension about the capability of I and PR  Dept, the nodal RTI agency of the State in carrying out the IEC programmes as required by law. But the representatives added that we all must abide by the law and act accordingly. If the Commission finds any problem with I and PR Dept in above respect, it can recommend to the Govt. under Section 25 (5) of RTI Act as to how to capacitate the said Dept or make any alternative arrangement at Government level so as to fulfill a statutory obligation. He assured to seriously look into the matter and not to receive the funds for IEC from the Government w.e.f. coming financial year.

 B.      Inordinate delay in sending the copy of the Decisions to Complainant/Appellants

The Representative stated that over the years it has been noticed that the copy of a decision used to be sent by the Commission to the concerned complainant/appellant after an inordinate delay, that is, five to six months after the decision is made. As a result of this wrongful practice the complainant/appellants remain in dark about the final decision of the Commission for several months at a stretch. Many a time, the complainants feel compelled to take recourse to filing an RTI Application simply to receive the copy of the relevant decision from the office of the Commission. Having heard this Mr. Mishra got surprised and wanted to know the reasons for such delay. As for his own practice, he drew the attention of the representatives to the files lying on his table and mentioned that he would dictate the decision as quickly as possible. He further assured to take necessary steps quickly in this matter.

 C. Low disposal of cases

The next issue related to low disposal of cases by the Information Commissioners. The representatives informed Mr.Mishra that on an average an Information Commissioner in Orissa was disposing only 35 to 40 cases per month, while in contrast Mr.Sailesh Gandhi the Central Information Commissioner and quite some Commissioners in other States are disposing 200 to 300 cases per head per month. Low disposal along with absence of proper hearing by the Commission has led to a massive pendency of about 8000 cases in the office of the Commission. In reply Mr. Mishra shared the discussion on this matter he had already had with other Commissioners like Mr. Satyendra Nath Mishra Central Chief Information Commissioner and Mr. Sailesh Gandhi, Central Information Commissioner. He highly praised them and appreciated their work.  He agreed that in order to avoid huge pendency the Commission should work towards speedy disposal of the cases. He would discuss with other Commissioners of the State so as to ensure quick disposal of cases. He also said that he has been able to dispose 20 cases in one day only. Then he continued to say that if all the Commissioners could act accordingly, then they would be able to dispose 500 to 600 cases per month, and as a result the whole backlog would be cleared within one year. He said that he would give top priority on speedy disposal of cases.

 D. Neglect by the Commission towards Section-4 related the cases

It was stated by the representatives that most of the Public Authorities in the State have not   made voluntary disclosure of information in the manner they should have under Section 4 of RTI Act.  Moreover, the Information Commissioners are not entertaining the complaints by citizens against the negligent public authorities who are found violating Section 4 of RTI Act during last five years. Thus the Information Commissioners are not hearing such complaint cases nor directing the concerned Public Authorities to comply with the said provision of the Act.

 Mr.Mishra was also appraised about the Guidelines issued by the Ministry of Personnel, Public Grievances and Pension, Govt. of India to be abided by all public authorities across the country I.e., Template for Information Handbook under Section 4(1b) of RTI Act. However, this Guideline has not been followed by any public authority in our State while making any suo motu disclosures under Section 4(1b) of RTI Act.

 The representatives further noted that any complaint case relating to Section 4 are simply getting rejected by the Commission even without any registration. Mr. Mishra got surprised to know that the complaint cases arising from the violation of Section-4 are not being heard by the Information Commissioners. He also recalled that when he was the Chief Secretary, he had instructed all the offices to disclose the necessary information under Section 4 (1b) of RTI Act. He also further referred to the order issued by his predecessor Mr. Ajit Kumar Tripathy instructing all the offices of Govt. of Orissa to make suo motu disclosures under Section 4(1b) of RTI Act. He wanted to know the practice, if any of the hearing of the Section-4 related complaint cases by other Commissioners. The representatives readily referred to a complaint case of the above type, heard by Mr. Sailesh Gandhi Central Information Commissioner. Then Mr.Mishra assured to take quick positive steps to ensure that Section 4 related cases would also be heard by the Commission henceforth.

 E.       Fees applicable to BPL persons

The representatives told that the illegal practice of collecting fees towards the cost of information from the BPL persons has deprived a large section of BPL population of their right to use the Act in our State. Mr. Mishra wanted to know the particular Section of the Act which exempted the BPL people from paying the cost of information. It was presented to him that the proviso to Section 7(5) of RTI Act exempted the BPL families from paying any kind of fees such as fees for application {Section-6(1)}, fees for information {Section-7(5)} and fees for additional information such as in electronic format {Section-7(5)}. But as a matter of practice in Orissa, the BPL people have been exempted only from application fee. Even going against the mandate of the Act and misinterpreting the Orissa RTI Rules.2005, the Information Commissioners in Orissa, in course of hearing of the cases, have been directing the BPL Complainants to deposit the fees towards the cost of information. 

 However, Mr. Mishra expressed an apprehension about the possibility of misuse of the above provision by vested interest groups. Well off persons might take recourse to this provision for getting all the information free of cost by way of filing applications in the name of BPL persons.  But the representatives told that every provision runs the risk of getting misused. But that does not mean that hundreds of BPL applicants will be deprived of their legitimate right to get information free of cost as guaranteed under the Act.

 Further Mr.Mishra also wanted to know the practice of other State Information Commissions and Central Information Commission in this regard. He was readily shown a copy of the decision  given by Central Information Commissioner Mr.O.P. Kejriwal, where he has directed the concerned Public Authority to provide information free of cost as required under Section 7(5) of RTI Act.

 After a lot of discussion that ensued, Mr. Mishra assured to discuss this matter with the State Govt. and take appropriate steps accordingly.

 F.       Right to Re-appeal against a Decision of the Commission 

It was presented by the representatives that the Commissioners in Orissa Information Commission have been invariably closing the cases without giving the complainant/appellant any scope for re-appeal against the decisions made by the Commission. Further it was told that even if the concerned Complainant/appellant has not received any information, the Commissioners, let alone impose any penalty on the guilty PIO, closed the case unilaterally basing upon the self-serving statement of the said PIO. Mr.Mishra wanted to know some instances of this kind if any. The representatives readily furnished the example of a complaint case lodged by a person from Bolangir, who being a migrant labourer himself had to go out to far-off places for work in Brick Klin and therefore couldn't attend any hearing of the Commission. Taking advantage of the absence of the Complainant the PIO made the deposition that the Complainant had received all the information he had sought, and the Commission, without verifying the truth, took for granted the veracity of the statement of the PIO and closed the case, whereas the true fact remains that the said Complainant has not received any information till date. Thus, the Commission by not allowing the Complainant the right to re-appeal against a decision throws the complainant into a lurch for ever and protects the guilty PIO from any manner of penalty that he deserves. Such a practice by the Commission is also against the letter and spirit of RTI Act

 Then Mr.Mishra wanted to know if there was any provision in RTI Act that allows the Complainant's right of re-appeal against a decision of the Commission. The representatives showed the Section 19(9) of RTI Act that mandates the Commission to mention in every decision whether the complainant has a right to appeal against the said decision. Mr.Mishra not only agreed with this provision of law but assured to put it into practice henceforth.

.G.     Provisions of Orissa RTI Rules 2005 utra vires the parent Act

It was presented before Mr.Mishra that Orissa RTI Rules 2005 suffered from some illegal provisions like compulsory application form, compulsory appeal forms, appeal fees and prohibitive modes of payment of fees. which need to be withdrawn. Mr.Mishra wanted to know the development if any that has taken place at the Govt. level in this regard. It needs to be mentioned here that when Mr.Mishra was the Chief Secretary, a team led by Mr. Pradip Pradhan from Odisha Soochana Adhikar Abhijan had submitted a memorandum with regard to amendment of Orissa RTI Rules 2005. In that meeting, Mr.Mishra had also called the officers of I and PR Dept to remain present and get appraised about the issues raised by the Abhijan.

 In the instant meeting, Mr.Mishra wanted to know the development if any that has taken place since then at the level of the Govt. The representatives replied that no development has taken place meanwhile. Mr.Mishra then assured to have discussion about the matter with the State Govt. in the next month.

 H.     Non-issue of Registration Nos. of Complaints and Second Appeals to the Complainants/ appellants

It has been observed in the last 5 years that the Complainants or appellants who submitted their complaint or appeal in the Commission were not issued the Registration nos. of their cases.  Strangely enough, they only came to know their registration Nos. after the notice is sent to them in connection with the first hearing of the case after an inordinate delay. Even then the Registration no. is not mentioned in the preliminary notice. Secondly, the cases are not being heard on first come first serve basis. Using an extra-legal plea i.e. the so-called public interest,  the cases are selected for hearing on whims of  the Commission. It was suggested that the Registration no. of each case should be sent to the Complainant or appellant as quickly as possible and the cases should be heard on first come first serve basis. Mr.Mishra agreed to the suggestion so put forth regarding immediate issue of Registration No and the order of cases selected for hearing to be worked out on first come first serve basis.

      WRAP-UP

Due to paucity of time, many important points could not be covered in the discussion. As per the suggestion of the SCIC, the discussion was closed for the day and it was agreed that the next round of discussion shall be held in the coming month, to cover other issues.

 In course of the discussion, Mr.Mishra sought the cooperation of Civil Society Groups and  Activists to work together with the Commission for effective implementation of RTI Act in the State. He also said that as he understood, the primary work of the Commission is to adjudicate the cases for which a big infrastructure has been developed here and available now. "If we don't do this, what else shall we do?", quipped Mr.Mishra in a positive spirit. He admitted that within last five years the staffs and officers of the Commission have been demoralized due to  criticism  from outside. "My first priority is to restore credibility of the Commission. We are in the same boat. If we destroy the boat, it is sure both of us will die. It is high time that we should work together". With this optimistic and constructive note from the Chief State Information Commissioner Orissa followed by sincere thankfulness expressed by the representatives to him, the meeting came to a close. 

 Compiled by

Pradip Pradhan

M- 99378-43482