Response to the Task Force constituted by Government of India for effective implementation of Section 4 of the RTI Act, 2005
The Government of India in the Dept of Personnel and Training has taken a rightful step, belatedly though, in constituting the Task Force for effective implementation of Section 4 of the RTI Act, 2005 and inviting the views/opinions of the members of public from all across the country on 8 nos. of items covered under its Terms of Reference (vide Circular Letter N0.1/6/2011-IR, Government of India, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, North Block, New Delhi Dated 1st June 2011http://persmin.gov.in/WriteReadData/CircularPortal/D2/D02rti/1_6_2011-IR01062011.pdf).
Lessons from Orissa
At the outset we would like to inform you that it is here in Orissa that under the mounting pressure of civil society campaign, the Government of Orissa made a Gazette notification of Orissa RTI (Amendment) Rules 2006 dated 29 May 2006 (http://orissasoochanacommission.nic.in/(S(vdgodl45jtflwx45ureeqh45))/Orissa%20RTI(Amendment)%20Rules,2006.pdf) which achieved inter alia two important objectives, namely-
- Reduction of application and appeal fees and of cost of information and inspection, (notwithstanding the fact that the appeal fees is itself ultra vires the parent Act; inspection fee, that is, free of any charge for the 1st hour and Rs.20/- for the 2nd hour is higher than the corresponding Central rate and mode of submission of various fees is expensive and cumbersome); and
- More importantly, mandating every public authority to maintain a Register for recording the particulars of every person visiting its office for inspecting and accessing any information disclosed suo motu under Section 4, and also allowing every person to inspect the Register maintained to record the particulars of applications made under Section 6-1 just as he/she is entitled to inspect any information covered under Section 4 of the Act.
However, notwithstanding the above Amendment, the Government of Orissa didn't show any iota of interest in enforcing the maintenance of the Register for Section 4 as required there under. As a result, only a few public authorities and that too under the pressure of RTI activists, have reluctantly opened the said Register. But the greatest disservice to the cause of Section 4 was meted out by Orissa Information Commission. Nakedly violating the parent Act, the then Chief Information Commissioner Orissa Mr.D.N. Padhi in a number of decisions (such as C.C. No. 04/2006 filed by Shri Taranisen Padhan &3 Others decided on 20/06/2006, and C.C. No. 05/2006 filed by Shri Jaganath Panda & 3 Others decided on 20/06/2006) rejected the complaints alleging the non-implementation of Section 4 by the concerned public authorities without providing any opportunity of hearing to the complainants on the arbitrary ground that "the complaint petition does not come within the legal purview of Section 18 of Right to Information Act 2005". Such dismissive position taken by the Commission in the initial stage of the implementation of RTI Act sent a wrong and negative signal to the public authorities across the State who took it for granted that non-compliance to the provisions of Section 4 won't invite any penalty against the PIO or public authority concerned. As a result, none of the public authorities in the State including the Commission itself made a proper suo motu disclosure of the information as required under Section 4. Even though our forum consistently pursued the public authorities at various levels to adopt the 'Template for the Information Handbook under Right to Information Act' (http://persmin.gov.in/WriteReadData/RTI/RTI-Templates.pdf) suggested by the Ministry of Personnel, Training and Public Grievances, GoI (nodal agency for RTI at national level) in respect of suo motu disclosures as required under Section 4, none of them gave any attention to the same. More unfortunately, the Offices of Speaker Orissa Legislative Assembly and Governor Orissa, though duty-bound to make suo motu disclosures under Section 4 have as yet not taken any step in this direction. Thus, on the whole the Section 4 scenario is pretty miserable in the State of Orissa and calls for strong remedial measures including the penal provisions against the recalcitrant or negligent public authorities.
Besides the Orissa State Information Commission instead of defending and protecting the RTI users has gone to the extent of victimizing them as is evident from the recent instance of lodging a damage/ defamation case by them against the two RTI activists, and also of hurling abusive and threatening abuses against the complainants from weaker sections in several instances.
Recommendations-
Based upon our experience and understanding as mentioned above, we would like to put forth our recommendations on the following 8 nos. of Terms of Reference of the Task Force for effective implementation of Section 4 of the RTI Act, 2005, which may have relevance for the whole country.
a. To examine the provisions of Section 4(l)(b) and to recommend guidelines for disclosures to be made at various levels of administration:-
'The Template for the Information Handbook under Right to Information Act' is an appropriate model already suggested by the Ministry of Personnel, GoI for compliance by the public authorities in general. But the real problem continues to be non-compliance or half-hearted compliance indulged in by the public authorities. Under the circumstances, to compel the full-fledged compliance by the public authorities concerned, a guideline is to be issued by the Min. of Personnel, GoI providing that all the public authorities including competent authorites should ensure publication of their suo motu disclosures under Section -4 in strict conformity to the above mentioned Template within 3 months of the date of notification of the gudeline, failing which the respective Information Commission at Centre or in a State shall charge a lump sum penalty against the defaulter public public authority to the tune of Rs.25,000/-, which the Commission has the authority to do under Section 19(8)(c) of RTI Act.
b. To recommend other items which may be included for suo motu disclosure, as provided in Section 4(l)(b)(xvii);
(i) As per Rule 2(1) of Orissa RTI (Amendemnt ) Rules 2006, the PIO shall maintain a register for recording the particulars of all RTI applications made under Section 6 of the Act including name of the applicant, date of application, subject matter of application, date of disposal, content of the decision, amount of application fees and other fees collected in connection with each application, and the said register shall remain open to the inspection and acess by the members of public just as other suo motu disclosures are. This provision may be emulated elsewhere across the country.
(ii) As per Rule 2(2) of Orissa RTI (Amendemnt ) Rules 2006, each public authority shall maintain a register for recording the particulars of the persons visiting a public office in connection with inspection of and access to the information disclosed suo motu under Section 4 of the Act. It is suggested that such a register should also be treated as an information covered under Section 4(1)(b) of the Act, so that one can get to know at a glance how many persons have visited the concerned office within a specific time period and what sort of information has been acessed by them.
(iii) The dates on which the suo motu disclosures are updated in a year and the name and designation of the concerned officer who has vetted the contents of the disclosures so made should be treated as an information deserving of suo motu disclosure under Section 4.
(iv) As per Section 4(4) of the Act, the information covered under Section 4(1)(b) shall be made available free or at the cost of print or medium only. Sections 27(2) and 28(2) also mandated the appropriate Governments and competent athotroities respectively to notify the price of such information. But it was noticed that neither the Centre nor any State Government made any notification to that effect, on account of which both the members of public and public authorities are in a state of confusion as to how much to charge against the information covered under Section 4(1)(b). Under the circumstances, it is suggested that the said Governments and Competent Authorities should be mandated to immediately notify the prices against various items as required under Section 4(4) and such list of prices should be displayed on a prominent place in the concerned offices as a matter of routine suo motu disclosures.
(v) As per the Explanantion appended to Section-4, the members of public are allowed to inspect the information suo motu disclosed by a public authority. But confusion arises whether inspection covered under Explanation to Section 4 and inspection one may like to have under Section 6 are one and the same thing and relatedly whether the charges for inspection under the above two categories would be same or different. It is therefore impertaive that both the Governments and competent authorities be mandated to notify the inspection fees chargeable under Section 4 separately and a chart of such fees displayed in a prominent place in the office of every public authority as a matter of proactive disclosure.
c. To explore the possibility of prescribing simple templates for disclosing specific category of information in order to facilitate disclosure;
'The Template for the Information Handbook under Right to Information Act' already prescribed is as such a simple one. Any further simplication shall dilute the rigour with which the Section 4(1)(b) has mandated the details of information to be disclosed suo motu by every public authority. Now the crucial issue is how to compel the public authorities by way of penal measures already suggested above to adhere to the prescribed Template.
d. To recommend mediums though which such disclosure is to be made at various levels, which would include disclosure through electronic means also;
The Section 4(4) has prescribed inter alia the 'local language' in which all materials shall be disseminated in a locality through various media. But there are many local languages, called also dialects, which can be used only orally, since there are no corresponding writing scripts for the same. It is suggested that so far suo motu disclosures to be made by a public authority in print or on internet are concerned, it should be in regional language (official language of a State) for the convenience of the people of the concerned State along with English to benefit the people of the country at large. Additionally, a non-Hindi State may use Rashtrabhasha Hindi for the benefit of Hindi-knowing public spread all over the country.
e. To recommend guidelines for complying with the provisions under Section 4(l)(b)(vii) and Section 4 (I) (c) and Section 4 (1) (d);
(i) So far Section 4(1)(b)(vii) is concerned, each Office of every public authority must publish suo motu the list of Acts, policies and programmes implemented by them and the particulars of the officers or Committees entrusted to implement them. Besides it should also disclose suo motu in advance the yearly or monthly calendar of meetings to be held to discuss the issues around implementation or revision of these instruments so as to enable the members of public to participate in them or submit their views/opinions on the same. Moreover, as and when necessary, the concerned public authority can invite the views/opinions of the members of public within a month of the notice to be isssued for the purpose around any issue that has unpredictably cropped up. The decisions of the concerned authority or Committee along with the views/ opinions so submitted by the members of public should be published on the website of the public authority for the knowledge of all.
(ii) So far Section 4(1)(c) is concerned, every public authority should issue a notice inviting the views /opinions of the members of public within a month's time on a contemplated draft policy or draft decision along with its background and reasons. After the concerned policy or decision is adopted, it should be placed on the website along with the reasons for which the said policy or decision was adopted vis-à-vis the views/opinions submitted by the members of the public.
(iii) So for Section 4(1)(d) is concerned, every public authority should mention elaborately the reasons for adopting a particular administrative or quasi-judicial decision through newspapers, television, radio and internet.
f. To give recommendations as to how compliance with the provision of Section 4 (1) (b), (c) (d) and Sections 4 (2) to 4 (4) may be better enforced.
(i) The nodal agency for RTI at Centre and in every State and also each Information Commission should serve as a model in opertionalising the above provisions of Section 4. The rest of public authorities are expected to follow them.
(ii) At every level, Central, State, District, Sub-division, Block or Gram Panchayat a separate Committee comprising members from Government and civil society should be formed to identify the gaps in operationalisation of the above provisions by the public authorities of the concerned level and recommend how to bridge them.
(iii) Every year the above Committees should select the best performing public authority at their respective levels and reward them with cash and certificate. This will encourage the rest of the public authorities to follow the model shown by the best performers.
g. To recommend measures for protection of persons seeking information under the RTI Act
It is unfortunate that while Section 6(2) has specifically forbidden the disclosure by an applicant of any personal details other than the contact address in his RTI application, the Orissa RTI Rules 2005 (http://rtiorissa.gov.in/RTI-Rules) has imposed a compulsory 11-column Application Form (Form-A) which asks the applicant to disclose inter alia such personal information as permanent address, name of father/spouse and proof of citizenship in the shape of copy of voter's card or passport, which are ultra vires the parent Act. Despite vehement protest against such illegitimate provision, the Government of Orissa still sticks on to it. Further unfortunately, the State Information Commission in place of recommending the abolition of such grossly illegal provision by way of using its powers under Section 25(5) of the Act has been blindly supporting it. As a result, most of people fear to make an RTI application lest their identity would be disclosed to the very group of vested interests who might feel pinched by the kind of information asked for and consequently they and their family members would come under attack by the said group of vested interests. Also there have occurred a series of attacks on RTI activists and applicants by the cliques of bureaucrats and vested interests across the State of Orissa precisely for this reason. Under the circumstances, the following remedial measures are suggested-
- Central nodal agency for RTI should issue a stricture asking the Government of Orissa and other such States to amend their respective rules which require the RTI applicants to mention personal information about themselves or family members in RTI application;
- Any case of attack on an RTI applicant or activist should be taken up suo motu as a case for enquiry under Section 18(2) by the concerned Information Commission, who would direct the Dept of Home of the respective Government for conducting a preliminary enquiry and nabbing the culprit within a fortnight of the occurrence of the incident;
- Any case of attack on an RTI applicant or activist, if brought to the notice of the concerned Information Commission by a complainant under Section 18 of the Act, should be taken up in right earnest and with immediate priority for enquiry and also for a direction to the concerned Home Dept for arrest and action against the culprits within a fortnight from the date of complaint so lodged.
- If the concerned Information Commission, despite being informed of the occurrence of such an attack, fail in their duty to take up the enquiry and necessary deterrent action with immediate effect, the President or Governor, as the case may be, shall intervene in the matter under Section 17 to take immediate penal action against the Chief Information Commissioner and simultaneously to order the concerned Home Dept to take penal action against the culprits.
- An exclusive cell shall function in the office of DG Police to take up the cases of attack on RTI applicants and activists and nab the culprits on priority basis.
- Appropriate Government should award compensation to the survivor victims or the kith and kin of the dead victims in the wake of any physical attack on the RTI applicants or activists.
h. Any other issue incidental to the above.
Unfortunately in Orissa, the State Information Commission in place of protecting the RTI applicants or activists has itself victimized two RTI activists namely Pradip Pradhan and Chitta Behera, by way of lodging a damage/defamation case amounting to Rs.1 lakh against them in the Court of Senior Civil Judge Bhubanswar in October 2010 on the simple ground that they have tarnished the image of the then State Chief Information Commissioner Mr. D.N.Padhi through their write-ups on the latter's omissions and commissions on the internet. It is worth mentioning here that as per Section 499 of IPC 1860, any discussion involving whatever hard or harsh language on the public conduct of a public servant cannot be taken as a ground for lodging a defamation case by the concerned public servant. However, despite the superannuation of Mr.Padhi from service since November last the case is still continuing against the above activist duo on the direction of the present Chief. And further, in spite of apprising the Governor Orissa on several occasions about this blatantly illegal and vindictive act of the Commission against the above RTI activists, no step has since been taken against the concerned Commissioners or for protection to the RTI activists so victimized. In such a situation, the national nodal agency for RTI should intervene in the matter to prevail upon the State Information Commission to withdraw the case lodged by them against the two prominent RTI activists of the State.
Pradip Pradhan
On behalf of Odisha Soochana Adhikar Abhijan
VIM-316, Sailashree Vihar, Chandra Sekhar Pur
Bhubaneswar, Orissa, Web- www.orissarti.com
M- 99378-43482,
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