Red Alert! New RTI rules cancel right to file Complaint u/s 18

Dear fellow activists,

The proposed new RTI Rules aim to cancel our right to bypass the first appellate authority and complain directly to the commission under Section 18. In fact, it aims to virtually nullify Section 18 by compelling you to file a first appeal, and then insisting that you can only approach the Information Commission with a “second appeal”, and not a “complaint”. In this way, Information Commissioners can be made to avoid using the strong court-like powers that Section 18 confers on them.

Did you notice this? No? Neither did I… until today evening when I read this table by activist C J Karira [ http://tinyurl.com/RTIrules2 ] showing sections of the old (existing) and new (proposed) rules side-by-side. The mischief is played in Section 14 and Section 11 of the proposed RTI rules.

Section 14 of the proposed amendment corresponds to Section 7 of the existing rules. All references to “Complainant” in the existing rules, which I am showing in ALL CAPS, are deleted in the proposed amendment.

EXISTING RULES say this:

7. Personal presence of the appellant OR COMPLAINANT.-

(1) The appellant OR THE COMPLAINANT, as the case may be, shall in every case be informed of the date of hearing at least seven clear days before that date.

(2) The appellant OR THE COMPLAINANT, as the case may be, may at his discretion at the time of hearing of the appeal OR COMPLAINT by the Commission be present in person or through his duly authorized representative or may opt not to be present.

(3) Where the Commission is satisfied that the circumstances exist due to which the appellant OR THE COMPLAINANT, as the case may be, is being prevented from attending the hearing of the Commission, then, the Commission may afford the appellant OR THE COMPLAINANT, as the case may be, another opportunity of being heard before a final decision is taken or

take any other appropriate action as it may deem fit. -

(4) The appellant OR THE COMPLAINANT, as the case may be, may seek the assistance of any person in the process of the appeal while presenting his points and the person representing him may not be a legal practitioner.

Now read the PROPOSED RULES:

14. Personal presence of the appellant before the Commission:

(1) The appellant shall be informed of the date of hearing at least seven clear days before that date.

(2) The appellant may, at his discretion, be present in person or through his duly authorized representative or, if permitted by the commission, through video conferencing, at the time of hearing of the appeal by the Commission.

(3) Where the Commission is satisfied that the circumstances exist due to which the appellant is being prevented from attending the hearing of the Commission, then, the Commission may afford the appellant another opportunity of being heard before a final decision is taken or take any other appropriate action as it may deem fit.

Do you see the difference? There is no mention of “complainant”. In the proposed new rules, the word “complainant” does not occur even once, and the word “complaint” occurs only once, in Section 16 (“Abatement of an Appeal / Complaint: The proceedings pending before the Commission shall abate on the death of the appellant.”)

But that is not all. Section 11 of the proposed new rules (for which there is no corresponding section in the existing rules), insists that you must go through the first appeal stage.

Read Section 11 with special attention to what is in ALL CAPS:

11. Admission of appeals:

(1) On receipt of an appeal, if the Commission is satisfied that it is a fit case for consideration, it may admit such appeal; but where the Commission is not so satisfied, it may, after giving an opportunity to the appellant of being heard and after recording its reasons, reject the appeal.

(2) The Commission SHALL NOT ADMIT AN APPEAL UNLESS IT IS SATISFIED THAT THE APPELLANT HAD AVAILED OF ALL THE REMEDIES AVAILABLE TO HIM UNDER THE ACT.

(3) For the purposes of sub-rule (2), A PERSON SHALL BE DEEMED TO HAVE AVAILED OF ALL THE REMEDIES AVAILABLE TO HIM UNDER THE ACT:

(a) IF HE HAD FILED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY and the First Appellate Authority or any other person competent to pass order on such appeal had made a final order on the appeal; or

(b) where no final order has been made by the First Appellate Authority with regard to the appeal preferred, and a period of 45 days from the date on which such appeal was preferred has expired.

Information Commissioners use a legal loophole to avoid invoking their powers under Section 18(3), which says: “The… Information Commission… shall, while inquiring into any matter UNDER THIS SECTION, have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908, in respect of the following matters …” The loophole is in the wording “under this section”. This means that the Information Commissioner’s civil-court-like powers can only be invoked if the RTI applicant makes direct reference to section 18 in his plaint. If RTI applicant unintentionally uses the term “Second appeal” or “appellant”, or cites any section of Section 19(3), the Information Commissioner takes advantage of this, happily saying that his hands are tied as he is unable to use the powers that Section 18 conferred on him!

Many Information Commissioners go out of their way to blur the distinction between Appeal and Complaint by holding similar hearings and passing similar-sounding orders for both. Many States, including Maharashtra, have framed rules that offer you only one format titled “Second Appeal u/s 19(3) of RTI Act”. Why not another format titled “Complaint u/s 18(1) of RTI Act”? Because that would make the RTI applicant very powerful indeed – and that is the last thing they want!

Here are the two big reasons why DOPT, through the proposed new rules, wants to take away the power to file a complaint, which is given to us by the RTI Act:

A. Because Section 18 greatly improves our chances of getting slippery Public Information Officers (PIOs) penalized. Section 18 is very strongly worded. A strictly legal interpretation of this section leaves truant PIOs with very little scope for escaping penalty.

B. Because there is no time-limit for filing a complaint. One may file a complaint under Section 18 very early (say 45 days after filing RTI application) or very late (say 18 months after filing RTI application).

To understand the importance of our power of Complaint, read this: http://tinyurl.com/RTISec18-19

Fellow activists, please fight against this amendment tooth-and-nail! At any cost, we must not allow ourselves to be deprived of our power to file complaint before Information Commission.

Warm Regards,

Krish

98215 88114

Press Release: Maharashtra Chief SIC will act on attacks on activists, setting a precedent

22 Dec, 2010: Maharashtra’s new Chief Information Commissioner Vilas Patil is willing to use his offices to initiate and expedite police proceedings in cases where activists are threatened or attacked in connection with the Right to Information applications that they have filed. The only pre-condition is that such activists should file a formal complaint to State Information Commission and present the facts of their case in an affidavit.

This would set a new precedent in the country. So far, Information Commissioners have been mute spectators who have refused to take a stand ion this important issue.

Mr Patil made this commitment yesterday evening in a meeting with nine leading RTI and human rights activists of the city, including G R Vora, Sunil Ahya, Mohd. Afzal, Krishnaraj Rao and Dr Shrikant Prabhu. He was responding to a representation that they had earlier made on 7 December. With reference to the high incidence of threats and attacks on RTI Activists in the state, their representation said, ”Please announce a fast-track procedure for receiving complaints about threats & attacks, and immediately enquiring and initiating remedial action. Please use your court-like powers u/s 18 to summon evidence, witness, all the RTI documents that the attacked/threatened RTI applicant wants, etc.”

MR PATIL’S IMMEDIATE RESPONSE ON 7 DECEMBER WAS that he would take a decision on this after understanding the legal processes and constraints. He promised to consider how to respond to complaints about attacks and threats by holding investigative hearings on the RTI-related issues on a fast-track basis, and proactively communicating with law-enforcement agencies.

Warm Regards,

Krish

98215 88114

Press Release: Maharashtra Chief SIC will act on attacks on activists, setting a precedent

22 Dec, 2010: Maharashtra’s new Chief Information Commissioner Vilas Patil is willing to use his offices to initiate and expedite police proceedings in cases where activists are threatened or attacked in connection with the Right to Information applications that they have filed. The only pre-condition is that such activists should file a formal complaint to State Information Commission and present the facts of their case in an affidavit.

This would set a new precedent in the country. So far, Information Commissioners have been mute spectators who have refused to take a stand ion this important issue.

Mr Patil made this commitment yesterday evening in a meeting with nine leading RTI and human rights activists of the city, including G R Vora, Sunil Ahya, Mohd. Afzal, Krishnaraj Rao and Dr Shrikant Prabhu. He was responding to a representation that they had earlier made on 7 December. With reference to the high incidence of threats and attacks on RTI Activists in the state, their representation said, ”Please announce a fast-track procedure for receiving complaints about threats & attacks, and immediately enquiring and initiating remedial action. Please use your court-like powers u/s 18 to summon evidence, witness, all the RTI documents that the attacked/threatened RTI applicant wants, etc.”

MR PATIL’S IMMEDIATE RESPONSE ON 7 DECEMBER WAS that he would take a decision on this after understanding the legal processes and constraints. He promised to consider how to respond to complaints about attacks and threats by holding investigative hearings on the RTI-related issues on a fast-track basis, and proactively communicating with law-enforcement agencies.

Warm Regards,

Krish

98215 88114

SC issues notice to Govt on transparent selection of Info Commissioners

Dear fellow activists,

Here’s some fantastic news: Supreme Court yesterday admitted the special leave petition (SLP) filed by activist Arvind Kejriwal for opposing the arbitrary selection of Central Information Commissioners. The court issued notice to the Union government, asking for their replies and rejoinders.

Earlier, Delhi High Court had dismissed Arvind’s writ petition (WP) at the admission stage. "We cannot restrict the discretionary power of the high- powered committee headed by the Prime Minister to decide on the appointment of the Chief Information Commissioner…. We cannot legislate or frame rules," a bench comprising Chief Justice Dipak Misra and Justice Manmohan had said on October 21.

In recent months, Andhra Pradesh High Court and Tamil Nadu High Court have admitted writ petitions filed by activist Madhav Vishnubhatta challenging the arbitrary selection of Chief State Information Commissioners and notices have been issued to respective state governments.

Read the gist of Arvind’s WP here: http://tinyurl.com/ArvindWP1

Warm Regards,

Krish

98215 88114

Anti-Corruption Act Full & abridged versions

Prevention of Corruption Act in two versions -- Full and abridged (simplified)

THE PREVENTION OF CORRUPTION ACT, 1988

SIMPLIFIED & ABRIDGED Prevention of Corruption Act 1988:

Originally 6045 words, we reduced it to 3,324 words, and made sentences short and easy.

Please note:

1) It gives a wide scope to the concept of “public servant”. The term includes judges, arbitrators, election officials, employees of public corporations, selection committee members and anybody in the “service and pay of local authority”, office bearers of cooperative societies of various kinds, and recipients of government funding. It is applicable to Information Commissioners and other quasi-judicial authorities.

2) As PCA 1988 includes judges and judge-like authorities, it seems to nullify some of the wide protection to judges under Judges Protection Act 1985.

3) It also gives wide interpretation to “gratification other than legal remuneration” and “criminal misconduct”. Thus, it is not necessary to prove that a public servant actually sought a bribe in cash, or was actually given. It is enough to show that undue favour or disfavor (or undue service or disservice) were given or sought to be given.

4) It spreads the net wide by including abetment of the offences and conspiracy, and thereby includes private parties such as touts and dalals, besides superiors, colleagues and others who assist indirectly and collude in the corrupt practices.

5) It has provisions for granting immunity from prosecution to bribe-givers or bribe-takers who turn into whistle-blowers and assist in the prosecution.

6) It provides for a summary trial, and restricts the scope for appeals before higher courts.

7) Offences under this Act will be tried by a Special Judge with special powers to attach the offender’s properties etc.

8) It mandates hearings on a daily basis.

Limitation of PCA 1988: After FIR is registered and after the police investigation is complete, the prosecuting authority ie. Anti Corruption Bureau must seek approval from the State or Central Government, or from competent authority, to prosecute the corrupt official. According to ACB Maharashtra website, this approval requires three months.

Vinita, please study Chapter III, which consists of the various offenses. These are the sections to be used in making our an FIR.

Regards,
Krish

Activists’ reaction to SM’s selection as Chief Information Commissioner

14 Dec 2010: Satyananda Mishra’s selection as Chief Central Information Commissioner, three months after the selection of another former DOPT secretary A N Tiwari, has many dimensions. Today’s TOI Mumbai (copy-pasted at bottom) has reported it well. Let us objectively analyze the positive and negative aspects.

First the dark side:

a) Hiring the DOPT Secretary is Chief information Commissioner is like hiring the ISI chief for the job of Human Rights Commissioner in Kashmir. DOPT is the dirty-tricks department of Govt. of India. It is the right-hand of PMO, and has powers to hire-and-fire and lynch (or exonerate) virtually any bureaucrat, anywhere in India. It controls CBI, CVC and virtually all vigilance functions of the government. Read this govt. manual: http://tinyurl.com/AboutDOPT

b) Satyananda Mishra (like his predecessor) is a former DOPT Secretary who abused his privileged position to enter Central Information Commission. Despite having many eligible candidates, Satyananda Mishra made the shortlist list so short that it reduced the PM’s selecting committee into a mere rubber stamp. These actions were then concealed by PMO, DoPT and Wajahat Habibullah (then the Chief Info. Committioner) with strange reasoning and self-contradictory statements. See here: http://tinyurl.com/CICduplicity Documents that finally came out last year revealed S Mishra’s abuse of trust and unconstitutional behaviour. See latter part of this document: http://tinyurl.com/SMishra1

a) It was sneaky and secretive – an inside-job between PMO and DOPT. There was no announcement of when the Prime Minister’s selection committee was to meet, and nobody knows who were the candidates considered, and whether any civil-society members were considered at all. It was a slap on the face of civil society. This is part of a larger problem that makes all such appointments malafide. For details, read “How Babus steal power from Civil Society:http://tinyurl.com/ThiefBabus1

Now the bright side:

One hears quite a few good things about Satyananda Mishra from the appellants who have appeared before him. What one hears is from well informed RTI activists like C J Karira and Girish Mittal is:

· SM gives logically reasoned orders

· Uses technology to ensure that his hearing proceedings are transcribed the same day and promptly converted into orders

· Holds hearings within 4-5 months of appeal being filed, has a decent disposal speed, is an efficient office administrator and maintains records well

· Is generally pro-disclosure, and puts the onus of justifying denial of information on the Public Information Officer and Public Authority.

· Often reveals his stand at the end of hearings and gives a general sense of direction as to what he will write in his order.

· He is an intelligent and reasonable man, who has shown guts and independent mind to take on the administration, and generally uphold the logical structure of the RTI Act.

· The only negative thing is that he is not too keen to impose penalty.

· All said, he is the best man that they could have handpicked for the job out of all the existing Central Information Commissioners.

In view of all this, I feel that Satyananda Mishra’s selection as Chief CIC is bad, but not terrible. Things could have been a lot worse.

However, we can still explore the possibility of going to Court to oppose his appointment, as it is overall an untoward appointment.

I now await the views of other activists and appellants – especially those who have appeared before him.

Warm Regards,

Krish

98215 88114