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Dr.S.ANANDKUMAR

Campaign seeking amendment in RTI Act, 2005, for imposing penalty to FAA in order to save CIC

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Dr.S.ANANDKUMAR

1. The noble act called RTI was enacted by the former UPA Government. It was a great contribution by the former UPA Government to democracy. The present NDA Government is committed to good governance, containing corruption & institution building. But the Central Information Commission is flooded and stagnated with over 36,000 matters in the form of appeals and complaints. Why?

 

2. Had the First Appellate Authority decided the matter on merits and disposed the first appeal with fairness and justice, there would have been no need for the appellant / complainant to take the matter to Central Information Commission to flood the said commission with many simple matters that must have been disposed at the level of First Appellate Authority.

 

3. Why didn’t First Appellate Authority decide the matter with fairness and justice? There is no legal obligation on First Appellate Authority to dispose the matter with fairness and justice because there is no penal provision in the said act even if he decides the first appeal otherwise.

 

4. There is penal provision only for Public Information Officer, the subordinate of First Appellate Authority. Administratively the Public Information Officer has to act in obedience to First Appellate Authority, a superior officer. Therefore, virtually the decision of the Public Information Officer is the decision of the First Appellate Authority only. Ipso facto, the First Appellate Authority can’t decide against that decision of the Public Information Officer, which is challenged by the appellant, actually because of conflict of interest and moreover it was simply because the First Appellate Authority has to pass an order against his own virtual decision and stand defeated in the eye of the Public Information Officer later in the event of disposal of first appeal with fairness and justice.

 

5. However, there are many First Appellate Authorities who pass reasoned, speaking order with fairness and justice notwithstanding the decision of the Public Information Officer. Treating fair & just First Appellate Authorities equally with unfair & unjust First Appellate Authorities is not good governance.

 

6. Hence, the law has to make course corrections by changing the worst things best to prevent continued and compounding accumulation of Second Appeals and Complaints in Hon’ble Central Information Commission. Had the First Appellate Authorities rendered justice fairly and squarely, the present unfortunate condition of the Hon’ble Central Information Commission would not have come.

 

7. It is also embarrassing for the Hon’ble Central Information Commission because it can’t dispose matters in time but has to penalize officers below for not disposing matters timely, fairly and justly. This poor indicator of democracy needs to be improved by the present Government sensitive to people-centered growth and development.

 

8. It is also unfair to punish the lower level officers only for the decisions of the public authorities, which are managed, supervised and controlled by superior officers, the First Appellate Authorities, who are spared unfairly and unjustly because of the said loophole in the RTI Act, 2005, that burdens the said Hon’ble Central Information Commission.

 

9. Today the RTI Act, 2005, has come to a standstill at its highest temple of justice. Any good Government will take cognizance of this injury to democracy and will contribute to such institution building, responsive to pleadings of citizens of this nation.

 

10. Therefore, on 16-01-2015, I submitted a representation to Hon’ble Prime Minister, Hon’ble Law Minister, Hon’ble Minister for Personnel, requesting them to arrange for bringing in amendments to RTI Act, 2005, enacting penal provisions for First Appellate Authority. My representation is attached herewith for your kind perusal, please.

 

11. If the readers of this thread in this forum feel that I have liberty to request them, they need to do the needful in the form of similar representations, signature campaigns, coordinated demonstrations, and other forms of expression of interests in this matter seeking amendments to RTI Act, 2005, to enact penal provisions to First Appellate Authority to save the institution called Central Information Commission and of course the information democracy.

 

Thanking you and this forum....

 

 

RELATED THREADS IN THIS FORUM

 

Appellate Authority can be recommended for Disciplinary action if he acts like a normal "senior officer"

http://www.rtiindia.org/forum/9145-appellate-authority-can-recommended-disciplinary-action-if-2.html

 

Punish FAA

http://www.rtiindia.org/forum/5760-punish-faa.html

 

Are there any instances/judgments in which FAA has been punished etc?

http://www.rtiindia.org/forum/64931-there-any-instances-judgments-faa-has-been.html

 

Ensuring the integrity / accountability of First appeals

http://www.rtiindia.org/forum/128558-ensuring-integrity-accountability-first-appeals.html

REPRESENTATION TO UNION MINISTERS - AMENDMENT SEEKING PENALTY FOR FAA IN RTI ACT- 16-01-2015..pdf

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karira

@Dr\.S\.ANANDKUMAR,

 

In AP/Telengana the situation is so bad that FAAs have been officially permitted (by a GO) to skip the SIC hearing for second appeal !

 

When I went through the note file, I found several representations from various senior officers (and supported by the Chief Secretary) stating that as senior level officers it is demeaning for them to attend a hearing with a Commissioner who was never a IAS/IPS/Etc. but only a commoner.

 

They also wanted exemption from appearing before a Commissioner who was junior to them while in service !

 

Demand was accepted and a GO issued.

 

There are too many ego issues involved.

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koteswararaonerella

Sri.Kariraji has rightly summed upthe feelings in the minds of FAAs and coming to your lenghty post which is informative and your intention to get the RTI act amended is also a good one , but unfortunately the government machinary will be active when there is some problem for them and not in the intrest of the general public.

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Dr.S.ANANDKUMAR

Karaira ji, please upload those unconstitutional and contemptuous note file and Government Order as PDF documents. Let the forum see those shameful records that are approved and issued by the Government of AP in contempt of the SIC and in disobedience to the said Act. Those words in the said records, "demeaning for FAA to attend a hearing with a Commissioner who was never a IAS/IPS/Etc., but only a commoner and FAA also wanted exemption from appearing before a Commissioner who was junior to them while in service," are shameful and are in violation of Article 51A of the Constitution. A public servant must give reply to authorities who mandated to question them. In this case it is SIC which has powers of a Court. Therefore, it is an offence under Indian Penal Code. If someone challenges the impugned GO in Supreme Court by way of a PIL, the shamefulness of the said GO will be exposed to the world. Please, share those documents. We need to press for such amendments to do away with such shameful GOs.

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Dr.S.ANANDKUMAR
"but unfortunately the government machinary will be active when there is some problem for them and not in the intrest of the general public."

 

If the chief architects of RTI Act thought about such ifs and buts, we would not have got the said act. If every citizen interested in making this act meaningful and purposeful takes a step on his / her responsibility, things will certainly change. Dear Nerella ji, may I request your good self to submit a representation to Ministers and their Secretaries, like the one I made? Things will start working. We will ask what those Ministers have done under RTI Act. We need to make such representations to largest opposition party as well. They cant say that our representations are either frivolous or vexatious. What does Good Governance mean? Celebrating it on the Christmas day or giving life to temple of information justice in this democratic country?

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Dr.S.ANANDKUMAR

This thread was viewed by 105 viewers as on date and time. However, only two viewers, Mr.Karira and Mr.Koteeswararao nerella have contributed their valuable suggestions and ideas. Nothing can be expected from those who have not viewed. FAAs not disposing the first appeals is a burning issue that many viewers and members face, I think, because almost all of us use seek information using RTI Act. That is the reason we stay in here. I feel that the viewers and members should feel free to say something and do something to redress the issue. Or I wish to know that it doesn't deserve to be an issue at all? I respect the incredible talents this forum has......

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jatin Sharma

And what about the transparency officer ? The transparency officer is ranked 2nd/3rd in any department and can give free hand to PIO and FAA in terms of Sec 4 proactive disclosure (if properly followed can reduce RTI deliberations ) but either he is never approached or never interested in performing disclosure. In my view,FAA is actually a time buying officer for PIO ,has no power in respect of taken punitive action against PIO. I'll tell you by my example- I got a decision from CIC for my organisation to disclose Acts/Rules/Orders/instructions on internet- CIC/LS/A/2011/003958. Did they disclose ? No. Why? I've heard some very high ranking officers told them not to do so because actually uploading it might get them all caught with still active institutionalised corruption .I'll tell you even FAA can't do any help on that . Transparency officer must be the Number one position of an organisation and under the direction of mandatory Sec 4 disclosure by President of India/Supreme Court and failing to do so must attract punitive action in his pension and there you will get a drop of 90% RTI cases in CIC . I've had enough decisions of FAA where he retracted to his own decision under influence of top boss.

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karira
And what about the transparency officer ? The transparency officer is ranked 2nd/3rd in any department and can give free hand to PIO and FAA in terms of Sec 4 proactive disclosure (if properly followed can reduce RTI deliberations ) but either he is never approached or never interested in performing disclosure.

 

Transparency Officer is a defunct designation.

Matter is in Court and NO ONE is following that system - not even CIC !

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RAVEENA_O

The issue needs to be considered from all points of view. It is true that FAA or higher-ups are not accountable under the Act and therefore they can dictate things to PIO. In fact, Head of Administrative Unit / Office must be held equally responsible for contravention of provisions of the Act. This can reduce the incidence of pressure from higher ups on PIO to give forceful decisions. We have seen best results in Ragging menace in educational institutions, which came to a standstill, when Apex Court set norms and guidelines holding Head of Institution as responsible for any incident.

 

The abnormal increase in Second Appeal are attributable to various reasons. Few amongst them are:

 

(1) inadequate suo-moto disclosure by public authorities

(2) increased awareness amongst citizens about use of RTI provisions,

(3) increased knowledge of PIOs/FAAs in use of exemption provisions,

(4) not passing reasoned orders by PIO/FAA so as to enable applicant to understand the decision making process in denying information,

(5) lack of awareness amongst citizens as to what is information and what should be sought from public authority,

(6) common man's perception to use RTI as a grievance redress tool,

(6) preferring SA against every decision by FAA, irrespective of the merit involved,

(7) Animus attitude towards Public Authority and use of SA as a tool of threat by common man,

(8) Extortion and blackmailing of officers by self-styled RTI activists,

(9) Lack of discipline in precedents - by giving contradictory decisions by ICs,

(10) Hopelessly inadequate number of ICs, disproportionate to the population of our country.

(11) Apathy of the appropriate government to enforce implementation of the Act in true spirit.

 

In order to have smooth functioning of the system, all such issues are required to be addressed simultaneously.

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Dr.S.ANANDKUMAR

I too wish that many good things happen to RTI Act as suggested by Mr.Jatin Sharma. Transparency officer is a position unknown to the information law passed by the Parliament. I would say, given the current form of RTI Act, 2005, enacted by the Parliament, the position of Transparency Officer is ultra vires. It does not exist in the act. I know one RTI Applicant who protested against marking a copy of the reply with RTI application to Transparency Officer because it is not provided in the act and is wastage of stationary and so it is a detriment to public interest. But FAA is a statutory role. It exists in the act. It is easy to ask for changes on what exists. It is difficult even to those who wish to bring in changes to enact changes on those matters which do not exist in the act. It amounts to rewriting the law because SIC / CIC will be third appellate authority for the reason the Transparency Officer becomes second appellate authority, one more local hand who could be again hand-in-glove with PIO & FAA. I wish to build on what is already built. However, I wish Mr.Jatin Sharma's dreams come true as well. In the meantime, I request Mr.Jatin Sharma ji to make contributions to bring in amendments to the act seeking penal provisions for FAA.

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Dr.S.ANANDKUMAR

Reasons could be many more in addition to those eleven issues meticulously listed by Mr.Raveena ji out of his wisdom. Whatsoever, the disposal depends of two statutory authorities performing quasi-judicial functions, PIO & FAA. The act holds PIO responsible. But the same act does not hold FAA responsible. If this course correction is done, all most all the 11 issues will be addressed to some extent simultaneously. The reason is that the act finally depends on PIO and FAA to render justice to applicant. Many of the 11 issues are procedural and matters of attitude and motives. The issues 6, 7, & 8 can be addressed if the disclosures under RTI act are disciplined and corruption contained. Such issues lift their heads because the corrupt officers lower their heads. The ultimate remedy is disclosure only. That’s the preamble of the act. To put it in simple terms the vehicle called RTI driven by the applicant on wheels called PIO & FAA is often repaired by the service engineer, the SIC / CIC. Repair is possible for one wheel, the PIO. But spares are not available for the other wheel, the FAA. The fuel of the said vehicle is corruption, cowardice and cover-ups. If the fuel stops, vehicle also stops. But for fuel and wheels, the vehicle can still run with other issues.Just got this anecdote in my mind…to put it simple as I understand .... Therefore, we will start with addressing the one wheel which is weak - an improvement within the current provisions of the act. I hope Mr.Raveena ji will make his contribution in some form, stemming from his huge talents, expertise and wisdom in RTI matters …

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jps50

IC if he deems fit can only recommend disciplinary action against FAA under service rules, for non/improper compliance of duties clamped on FAA statutorily under RTI Act. FAA is discharging quasi-judicial duties while deciding first appeal. However, getting RTI Act amended to make it user-friendly for citizens [ like use of doing business?] is far fetched expectation from this or any other govt. In last decade we had to move High Court in Gujarat for including postal order as mode of payment and twice for enhancing number of ICs to cope up with pendency etc. RTI has created problems for many politicians and govt employees/officers and hence no one wants it to sharpened further. Indirect efforts are being made to fracture RTI by weakening CIC/SICs. RTI is one of the effective tools of exposing corruption, but who in India wants to eradicate corruption [averments on TV discussion apart]? What is the position of Lokpal and Lokayuktas?

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Dr.S.ANANDKUMAR

"............However, getting RTI Act amended to make it user-friendly for citizens is far fetched expectation from this or any other govt. ...."

 

Ten years ago there wasn't an act called RTI. Now, we have. Ten years later, the said act would get better.......... Certainly I believe we can do it because we alone can do it, for we are driving the act...... I am working to request all the members or select members of national executive of the ruling party... They have made a promise before coming to power ....

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jatin Sharma

CVC headless, CIC headless, CBI still caged and staged parrot, CAG already threatened by Mr Arun jaitley, No disclosing any expenditure to CEC by BJP,instead of making uniform code real ,right wing has threatened with moral policing. U-turns in many issues, No law passed in two sessions , Not a single agenda in BJP manifesto fulfilled yet they are getting unaccounted"donations" from unknown sources and you are expecting them to fulfill their promise ?! Must say you belief is commendable.I can sign online petition for that but assure me that they will not add any section beyond that without public consultation .

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Dr.S.ANANDKUMAR

"I can sign online petition for that but assure me that they will not add any section beyond that without public consultation."

 

It is the confidence that wins last. Let them follow due process of law....

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Dr.S.ANANDKUMAR

"CVC headless, CIC headless, CBI still caged and staged parrot, CAG already threatened by Mr Arun jaitley, No disclosing any expenditure to CEC by BJP,instead of making uniform code real ,right wing has threatened with moral policing. U-turns in many issues, No law passed in two sessions , Not a single agenda in BJP manifesto fulfilled yet they are getting unaccounted"donations" from unknown sources and you are expecting them to fulfill their promise?"

 

Nation will not be silent and is not ....... This Country is known for checks and balances.....

 

65 years old historic political party with deep rooted organization structure was thrown away by people of India..... BJP is not a matter. Wait and watch.

 

They must keep up promises. Keep your morale and belief high. Raise your voice and knock at doors.. it works... More you succumb more they survive...

 

Your frustrations are true. Yet RTI helps thousands today... It works for many..... We have too many expectations and too many successes & too many frustrations as well.......

 

It was human exploration, confidence and innovation that brought human evolution where we are today... Lets cherish those virtues...

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jatin Sharma

All right wingers and party PRs in national awardees list? Still optimistic ?

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Prasad GLN

Let us be optimistic and focus only on implementation level of RTI Act as raise and fall of empires depends on various factors in a large democracy .

If only ICs strictly implement penalty provision/recommendation for disciplinary proceedings without exception, second appeals may reduce atleast by 75%

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Dr.S.ANANDKUMAR

I feel both points are correct. Empires come and go. People do it. CIC / SIC must impose penalty in deserving cases. We must press and protest for the same.

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karira
I feel both points are correct. Empires come and go. People do it. CIC / SIC must impose penalty in deserving cases. We must press and protest for the same.

 

Not only impose, but ensure that the penalties imposed are recovered !

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jj99

their are two types of laws

Directory Law & mandatory law

 

Law Web: When a provision is treated as mandatory or directory?

 

 

When a provision is treated as mandatory or directory?

 

The tools or cannons for interpretation as also the indices in so far

as to whether a provision is directory or mandatory are well settled over a long

period of time. if an To put it simply a provision is said to be directory if the act

complained of is valid though may result in some penal consequences but is

mandatory act done in breach thereof is termed as invalid. The leading

case on the said aspect is Rani Drigraj Kuer v/s. Raja Sri Amar Krishna

Narain Singh . However, it is well settled in so far as mandatory provisions are

concerned which result in nullification of the act if not complied with, there

are exceptions to the same. Even in respect of provisions which can be said to

be directory, there are exceptions namely that even if the directory provision is

not complied at all, the same would not affect the validity of the Act. However

the test whether the acts committed in breach of the provisions are valid or

invalid also depends upon the intent of the legislature and not only upon the

language of the enactment.

It is also well settled that whilst interpreting the provisions, the

intent of the legislature would have to be seen, as the intent of the legislature

is also one of the indices for coming to a conclusion as regards the nature of

the provisions.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

LETTERS PATENT APPEAL NO.312 OF 2013

IN

WRIT PETITION NO.6967 OF 2012

 

Shri Tatyasaheb Ramchandra Kale

 

versus

 

Sou. Surekha Ravindra Kambale

 

CORAM :

MOHIT S. SHAH, C.J.,

R. M. SAVANT, &

M. S. SONAK, JJ.

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karira

@jj99

 

Please explain the above in simple language and how it will help recover penalty ?

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jj99

imposing penalty or recovery penalty is difficult ( in more simpler words NO )

 

already a previous CIC has said penalty if imposed is like hanging of a cpio/spio so again here read NO

 

now refer to word "opinion" in sec 20 this is the most killer word in RTI act ( even though when an cpio has done some wrong but IC can be of a opinion that penalty should not be imposed so be it )

 

entire act is directory in nature so don't expect some thing big compare this with NIRBHYA ( dec 16 ) event in bus and post amendment of law proposed by justice verma -- that amendment is mandatory

 

 

here the intent of legislature is provide information which is available ( look no further -- read no further )

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Prasad GLN

With due apologies, every RTI information can not be treated as less harming. Several criminal acts and scams can deliberately suppressed intentionally by PIOs and this is no less serious than Nirbhaya. CIC ought to consider seriousness of that information and the direct loss caused to applicant or to Organisation over such denial.

Unfortunately, if you look into penalties unfortunate victims are Village headmen and very small officials in a remote area who are not really aware of such consequences. Those who are very smart knows in and outs of the Act are going scotfree even after repeated denials.

They must evolve a plan of action for follow up and it they are not interested no kind of pressures can be built on them. To me it is absolutely sure that ICs are never interested in imposing penalty at any cost unless they have some prejudices against that PIO or PIO is simple and not aware of the law.

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