Judiciary must be taken into accountability

MY EXPERIENCES ON RTI & JUDICIARY

by

Subhash Chandra Agrawal

Preamble of ‘Right-To-Information (RTI) Act’ suggests it an Act for being a tool to effectively

check corruption in our democratic system which comprises of three wings namely judiciary,

legislature and bureaucracy. If legislature and bureaucracy are subjected to RTI provisions,

then why create unnecessary controversy on including non-judicial aspects of judicial

administration under RTI Act? After all judges also come from the same human society

which consists of both honest and dishonest persons. How Chief Justice of India, mentioned

as Competent Authority, escape from being in purview of RTI Act when other concerned

public-authorities respond to communications addressed to competent authorities like

President of India and Chief Information Commissioner? Even Supreme Court registry itself

responded to my very first RTI petition filed in Supreme Court just after RTI Act was

introduced in October 2005, though in a vague manner, which related to my query on action

taken on my complaint addressed to Chief Justice of India against a High Court judge. It is

also to be observed that views of retired and present Chief Justices of India differ on the

issue. Can implementation of an Act affecting consumers of justice be changed with change

of guards? Does post of Chief Justice of India represent just an individual and not the

institution? Leave aside aspect of Competent Authorities, any thin line if drawn between

department-heads and others working under them, will then find an easy escape-route for

ministers, secretaries and heads of all public-authorities from RTI provisions. Eminent jurists

and legal luminaries have unanimous views on the issue. Speaker of Lok Sabha having

passed RTI bill and its panel have echoed likewise.

Any controversy on issue of Chief Justice of India being under purview of RTI Act is an

afterthought at Supreme Court. Why judiciary is so much scare from being transparent by

even having suggested that Registrar General of Supreme Court and not Central

Information Commission may be the second Appellate Authority for Supreme Court in RTI

Act! Suggested amendment to RTI Act also seeks that nominees of Chief Justice of India

may be exempted from RTI Act without clarifying who will be nominees of Chief Justice of

India. Transparency in Judicial Administration is a must rather in interest of Indian judiciary

to save its fine image where a handful of wrong elements are tarnishing image of other

honest judges. Even the then Chief Justice of India Mr Justice SP Bharucha and a Supreme

Court Judge during regime of Mr Justice YK Sabharwal as Chief Justice of India are on

record to confess about 20-percent judges of higher courts to be corrupt, an aspect

experienced by affected judicial victims like me. Five-member bench of Supreme Court

headed by the then Chief Justice of India Mr Justice PN Bhagwati in the matter ‘SP Gupta vs

Union of India, (1981) Supp SCC 87’ had opined to disclose opinions of members of

Supreme Court collegium constituted for appointment, promotion and transfer of judges of

higher courts even much before RTI Act came into existence. Even though this particular

aspect has never been over-ruled by later judgments on appointments of judges, opinion of

members of Supreme Court collegium are not being made public despite esteemed verdict

by central Information Commission (CIC).

Interestingly, file-notings on my RTI petition filed in Supreme Court regarding resolution by

all Supreme Court judges on wealth-declaration by judges reveals that reply of Central

Public Information Officer (CPIO) was got approved by Chief Justice of India and the

Appellate Authority also. On the other side, CPIO at Supreme Court says information

relating to Chief Justice of India is not available with him! Does Appellate Authority’s

endorsement on CPIO’s reply not make decisive authority and appellate authority colliding

thereby nullifying any role of being the first Appellate Authority?

My own experience is that RTI Act has been instrumental in exposing misconduct in judicial

administration including appointments in higher judiciary. Chief Information Commissioner

even allowed copy of appointment-file of a controversial appointment. But our Department

of Justice which acts as Department of Injustice for Consumers of Justice approached

Courts to get a stay on the CIC order always getting adjournments on the matter for last

more than a year. General practice of Union Government to obtain stay from courts on not

only CIC orders but now even on CIC proceedings in itself speaks of government-attitude

towards shielding wrong practices prevailing in the system.

It seems that (CPIO) at Department of Justice has to reply under pressure. It always avoids

replies on petty and meaningless excuses like date of newspaper-clipping etc. Even filenotings

are being refused. Wrong and vague replies are quite common. On being asked

about eligibility of persons being politically affiliated and having contested elections for

being judges, both the CPIO and the Appellate Authority were evasive for reasons best

understood. CPIO’s reply was wrong when it said that government had no competence to

act against retired judges of higher courts because case of Mr Justice Shamit Mukherji is

before all. A telephonic call from Central Bureau of Investigation (CBI) in response to my

RTI petition confirmed that a case was pending at CBI against a judge of Higher Court.

President’s Secretariat, Prime Minister’s Office and Department of Justice are shifting

responsibility to respond to my query about authenticity of an NDTV report on recent

appointment of a Chief Justice in a state. There is a war of letters between Supreme Court

and Department of Justice on replying to my another RTI petition on matter concerning

foreign-travel of Supreme Court judges with their wives.

It will not be out of place to mention that Department of Justice denied having

acknowledged important papers by Union Minister for Law & Justice relating to my another

RTI petition forwarded by both Lok Sabha Secretariat and Central Information Commission

on directions of Chief information Commissioner despite both these public-authorities having

produced acknowledgement by office of the Minister!

Even National Human rights Commission (NHRC) is evasive on matters concerning violation

of human rights by corruption and misconduct in higher judiciary. In response to my RTI

petition seeking information on the issue on a letter addressed to the then NHRC

Chairperson Dr Justice AS Anand, NHRC confessed that the important letter was ‘missing’

from NHRC files.

Once I asked about Disciplinary Authority for Chief Justice of India. Unfortunately even the

concerned Information Commissioner also disapproved my query earlier evaded by

Department of Justice. But that question gained significance later when serious allegations

were leveled against a retired Chief Justice of India.

Writer is Guinness Record Holder for most letters in newspapers

Not so funny RTI innovations from Jharkhand

The Hoot

Not so funny RTI innovations from Jharkhand

Recent reports in Jharkhand suggest that information seekers are told to pay substantial

sums in the name of the government staff’s salary. VISHNU RAJGADIA says the state

has put its own money-making spin on the RTI Act.

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Jharkhand is the state where two ex-ministers with corruption charges have been put

behind the bars. It is the same state sin which the Governor House witnessed serious

allegations during the President' Rule. The same where the IAS officers who were very

close to the governor are facing CBI raids.

And now the new Governor of Jharkhand Mr KS Narayan never forgets to add the terms

like 'transparency and accountability' in each of his speeches. But the fact is that RTI Act

(which ensures transparency and accountability) had been badly thrashed recently in the

state.

The Jharkhand Cabinet (election) Department issued an order on 05.06.09. This order was

sent to District Election officers and Deputy Commissioners. The order brought great

pleasures to the officials. Without delay, the DC offices forwarded it to all the public

information officers in their district. This started the consequences of demanding a large

sum of money for providing information.

Wonder what was hidden in the order?

The order contained arbitrary explanations of the circular no. 1/4/2008-IR, dated

25.04.2008 of Ministry of Personnel, Public grievances and Pensions, Govt. of India. The

letter provides guidelines to the public authorities. The circular also gives directions

regarding suo-motu declaration or self-disclosure of information prescribed in sub section

4(1)(b) of the RTI act.

But the Jharkhand Cabinet (election) Department had comically described the letter. The

order reads-

"According to Section 4 of Right to Information Act, provision is made that all the

government departments/office should maintain the record of important and

relevant information related to their departments/office and put them in their office

and on website; and shall make it available to Indian citizen in condition of duly

filing the application with prescribed fees."

This statement is a false one. Section 4 makes the provision of self declaration of the

information. Every department has to publish 17 categories of information related to its

office and works. It should provide as much information suo-motu to the public at regular

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intervals through various means of communications, including internet, so that the public

have minimum resort to the use of this Act to obtain information. The public authorities

should do this with constant endeavour. Section 4 does not even mention about application

and fee. It is clear that the order releasing authorities should first need to understand

section 4.

The above mentioned circular of Ministry of Personnel, Public grievances and Pensions,

Govt. of India guides about proper compliance of section 4, self declaration of information

with constant endeavour, proper maintenance of documents and keeping the information

in electronic form. The Jharkhand Cabinet (election) Department did not even mention

these responsibilities. Apart from this, its order gives the tip to collect a huge sum of

money for the time and expense undergone in case the desired information is not recorded

or maintained in the office. Section 6 of RTI act is referred for this purpose. The order

reads –

"Under these circumstances, section 6 of Right to Information Act 2005 has made

provision to assess the expenses in getting the information and to inform the

applicant, so that if he bears the expenses he could be provided with the

information."

It is interesting to note that section 6 had no provision mentioned as such. It only mentions

about the filling of RTI application. It is Rs 10 in case of Jharkhand. Section 6 does not

have clause of taking any further money. It's clear that the officers aren't informed about

this section as well.

The order that has arbitrary descriptions of the Law has many clauses to dishearten the

applicant. It is said that an officer or assistant could take hours or even days to gather

information.

It had been suggested the applicant should pay the salary of the staff for whatever days it

takes to gather the information. The rates are also mentioned. Including the wages and

allowances, an assistant would cost Rs 940 per day, whereas a sub-division officer would

cost Rs 1080. (Thank God the daily rate of bribe is not included).

If you became angry while going through the order, it is time to get your temper down. It

is laughing time now. The order reads-

"If the applicant wants to take the CD of the information, and the soft copy is

available in the office; he will have to pay Rs 50 per CD. But if it takes long time

to make the CD, then the tentative time will be calculated at the rate of Rs 674, the

per day salary of the computer operator."

Now who will ask that if the soft copy is available in the office, then why it would take

much time just for making a copy in CD? In fact instead of giving Rs 674 to that

incompetent computer operator, people would prefer to throw him out of the office.

The Jharkhand Cabinet (election) Department order also says that if the applicant wants to

inspect or go through the documents (under section 2(j)(i) of the act), he would have to

pay as per the salary of the assistant staff. This direction is also illegal. The rules and

regulations of central government say that no money could be taken for the first hour for

inspection. The charge of Rs 5 would be taken for every extra hour. In Jharkhand, it is free

for first hour, whereas Rs. 5 would be charged for every extra 30 minuts. In this case

asking for assistant's wages is quite comic.

It should be kept in mind that only the personnel and administrative departments of the

Central and State governments have the right to formulate rules, fees and expenses related

to RTI. Cabinet (election) has to follow the guidelines of the Law.

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The Jharkhand Cabinet (election) Department had offended the law and proved its

ignorance towards the RTI act. But the issue of transparency had to suffer as the public

authorities had started making fool of the public. Even if this order is dismissed, it would

take a long time to heal the wounds it had caused to transparency. The already corrupted

information officers would try to use different methods to discourage the people from

asking for information. On the other side, every applicant who becomes a victim of this

order would surely lose his faith in the right to information law. vranchi@gmail.com

People must ensure that they use RTI

'People should make full use of RTI Act'

TNN 12 August 2009, 10:28pm IST

MYSORE: The Right to Information (RTI) is an effective tool in the hands of the public to curb corruption and incompetence in the governance of the nation. People should make the best us of this act, making the governance more active, said Nandini Sahay, director of Media Information and Communication Centre of India (MICCI).

Speaking at a two-day regional seminar on converting electoral democracy into participatory democracy: role of RTI and media, organized by MICCI and WFD and Friedrich Ebert Foundation here on Wednesday, she called upon people to know about the functioning of the government through RTI, stating that the RTI Act plays a major role in converting electoral democracy into participatory democracy.

Indian democracy is considered to be an electoral democracy for people actively participate only during elections, she said. They cast their votes to elect a government and later become passive observers. This should not happen, she said. The RTI, 2005 gives people a chance to know about the government's functioning and people should utilize it. It is only then that the Indian democracy becomes a participatory democracy, she argued.

"In these 63 years of India's independence, we have lived in the shadow of secrecy, with no chance to question the government or its way of functioning. But for a democracy to be truly functional, people should be able to question the governance. Thanks to RTI, people can now do so'', she added.

Stating that a real democracy means good governance, transparency and responsibility, she said: "Through RTI, voters can keep a close watch on MLAs, MPs. It is unfortunate that most MLAs do not even attend the sessions of the House sincerely and several MPs are facing serious cases of crime. Also, though the country is growing at a rapid rate to become a super power, corruption here is growing too. It is time for us to protest, using the RTI'', she added.

The two-day seminar includes talks on topics like 'should judiciary come under RTI' and 'major challenges faced by RTI Act and role of media in addressing it'. The event concludes on Thursday and Lokayaukta N Santosh Hegde will be chief guest.

Friedrich Ebert Stiftung India media adviser Rajeshwar Dayal and additional deputy commissioner C G Betsurmath were present.

http://timesofindia.indiatimes.com/news/city/mysore/People-should-make-full-use-of-RTI-Act/articleshow/4886891.cms

Scam in J&K

The letter to an editor by Mr Muzaffar Bhatt is an eye opener in J&k. The large scale corruption can be stopped by the utilisation of RTI. So we must ensure to use RTI. This is a big tool for the common masses so we must utilise this to make our society corruption free. RTI has empowered the common man and the citizen must seek information from the govt. They are the people who have elected the representatives so they must ensure that their representatives work in the same way.