Madras high court. Credit: Wikimedia Commons

RTI activists have long insisted that an imposition of penalties and payment of compensation to applicants can be used as tools for ensuring adherence to the norms of providing information within a reasonable time frame.

Sept 09, 2020

(thewire.in)

New Delhi: A recent order from the Madras high court held that public information officers who mechanically reject Right to Information requests “should be shown the door”. This has reignited the demand for strict adherence to the principle of imposing penalties on erring officers.

RTI activists have long insisted that an imposition of penalties and payment of compensation to applicants can be used as tools for ensuring adherence to the norms of providing information within a reasonable time frame.

Judge deprecates tendency to deny information in 12-year-old matter

A bench of Justice S. Vaidyanathan deprecated the tendency among public information officers (PIOs) to deny information while dealing with a case in which a person had in 2008 sought information concerning vacancies in the Tamil Nadu public services and the number of seats allocated to backward communities and most backward communities between 2006 and 2008.

The PIO had refused to provide the information, claiming it was exempted under Section 8 (1)(d) of the RTI Act – which pertains to commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party. However, when the applicant appealed, the second appellate authority, the Tamil Nadu Information Commission (TNIC), ordered that the information sought be provided free of cost.

The high court upheld the TNIC’s finding, saying, “This may be one of the rarest of rare cases where the Second Appellate Authority has boldly taken a decision, which does not warrant any interference by this Court, as there is no error apparent on the face of record.”

In his order, Justice Vaidyanathan also commented on the tendency of some PIOs to deny information, saying: “Now-a-days, the officials are used to adopt a tactic answer in mechanical manner that the information sought for is exempted in the light of Section 8(1)(d) of the Act, without actually ascertaining as to whether the information sought falls within the ambit of the said provision.”

“Such officers,” he said, “must be taught a lesson and in my view, they are unfit to hold the post of Public Information Officer or any other post in connection with the discharge of duties under RTI Act and they should be shown the doors, so that it will be a lesson for other officers to act in accordance with the terms of the Act, failing which they may also face the similar or more consequences.”

The court also directed the Tamil Nadu government to issue a circular to its departments warning of legal consequences if information is not divulged in line with the RTI Act.

‘Penal provisions should be mandatory, not discretionary’

Reacting to the order, RTI activist Venkatesh Nayak said, “The high court’s recognition of the trend of PIOs to deny information without reasonable grounds is very welcome and actually repeats reminds us of a similar statement made by the Supreme Court of India in the Jayantilal Mistry versus RBI case four years ago.”

He said the Madras high court’s latest opinion reiterates the understanding of the penal provisions of the RTI Act as being mandatory instead of they being treated as discretionary by several information commissions and a couple of other high courts.

`Punishment can only be imposition of penalty, initiation of disciplinary proceedings’

Nayak, who works with Commonwealth Human Rights Initiative, said, “As far as scheme of RTI Act is concerned there are only two possibilities for penalising the PIO – for a one-time contravention specific ground are mentioned in the Act – a penalty of Rs 250 per day up to Rs 25,000 is possible. However, for repeated contraventions by the same PIO, the Commission can recommend disciplinary action to the head of the department.”

As part of the disciplinary proceedings, he said, a major penalty possible is dismissal from service. “That is the highest penalty permissible under the Civil Services Conduct Rules. However, penalty provisions are rarely complied by with Information Commissions despite case after case showing indications that penalty is certainly deserved.”

Nayak lamented that “study after study conducted by civil society organisations, since 2008, have shown this reluctance of most Information Commissions to impose penalty” and urged using this tool for ensuring that applicants are not denied information.

‘Information Commissions should dispose of cases on time to set example before PIOs’

Former information commissioner Shailesh Gandhi said few people are actually looking for a PIOs job anyway, since people are not able to make money in it, and the order should be seen bearing that in mind. He said it was also an opportunity for the court to revisit the issue of why penalties are not imposed on erring PIOs.

“The PIOs usually act on their gut feeling while providing information or not. They don’t gather information if they feel it would make someone uncomfortable, or required quite a bit of effort or if they feel that others in the department may not like it. Also, in most Information Commissions, the waiting period for deciding a matter ranges from one to two years. So the PIOs feel `when the Commission would decide we would give it, what difference does it make’,” he commented.

 

`RTI Act thrust was around penalty provision, time-bound reply concept’

Gandhi said the whole thrust of the RTI Act was around the penalty provision and the time-bound concept. Both, he lamented, have not been implemented.

“The Commissions have given a complete go-by to the time-bound concept. They feel they will decide when they want to. If the Commissions would delay giving decisions then with what moral authority will they look PIOs in the eye and say you provide information on time,” he asked.

As information commissioner, Gandhi recalled, how he went about giving orders expeditiously. So, he said, Commissions must deliver orders in a time bound manner and impose penalties when gross denial is there.

The most effective way to tackle denial of information is through imposition of penalties and ordering disciplinary action against the PIOs, he said, adding that only the Commissions can impose penalty and there is no appeal beyond the Commission, which is a statutory body.

“I used to issue directions to the head of the department to deduct salary of the guilty PIOs at a rate and deposit it in the treasury. The direction should go to a particular officer and that ensures compliance. In most cases the amounts were actually deducted. I also used to follow up every four or six months to see how much penalty had been deposited and due to this people were scared,” Gandhi said, adding that in his 44-month tenure as CIC he imposed 528 penalties, which was almost 40% of nearly all penalties imposed during the period.

Gandhi said the tool of paying compensation to applicants should also be used effectively by Commissions as that amount is paid by the Department and that makes the officials very cautious.

Report card on CIC, SICs’ functioning also flagged penalty issue

A ‘Report Card’ prepared by Satark Nagrik Sangathan in 2019 on the functioning of Central Information Commission and state information commissions had also pointed out how penalties were rarely imposed by these panels on PIOs who wrongfully denied information.

It said between them, 25 Commissions imposed penalties in 2,455 cases from January 1, 2018, to March 31, 2019, and the total amount of penalties was Rs 3.15 crore.

Later in the year, Anjali Bhardwaj of SNS while speaking at a public meeting on the implementation of the RTI Act had said that whenever there is a delay in delivery of information, a penalty should be imposed.”

She said the ‘Report Card’ had revealed that penalty was being imposed only in 3% of the cases where it was applicable. Terming this a “matter of grave concern”, she had added that RTI activists and users were “not in favour of penalties for the sake of penalties” but were only “interested in them because they are a way of ensuring proper implementation of the RTI law”.

As for the issue of awarding compensation to applicants, the ‘Report Card’ had also noted how the CIC and SICs were reluctant in doing so even if they felt the person suffered a loss or detriment due to any violation of the law.

Between January 2018 and March 2019, only 16 commissions awarded any compensation and a total of Rs 30.87 lakh was awarded in compensation in 663 cases, it added. Read More