Facts that are extremely relevant to your Right to information Points that are extremely relevant to Right to Information Act 2005, to Ponder Prepared

Know

your

RTI

Facts that are extremely relevant to your

Right to informationPoints

that are extremely relevant to

Right to Information Act 2005,

to Ponder Prepared and compiled by

DSouza Wilberious Evanglist

Know

your

RTI


Right to informationPoints to Ponder

WHEN THE INFORMATION COMMISSION

IS HIMSELF A PUBLIC AUTHORITY

Prepared and compiled by DSouza Wilberious Evanglist

Know

your

RTI


Right to informationPoints to Ponder

vis-a-vis the maladministration,

corruption, absence of transparency &

accountability that governs in the in Information

Commissions

Prepared and compiled by DSouza Wilberious Evanglist

Central or State Information Commission (SIC or CIC) is a Public Authority under section 2(h) of Right to Information Act 2005 & functionaries in SIC or CIC, from highest to the lowest in its hierarchy are public servants as per section 21 of Indian Penal Code (IPC), The Prevention of Corruption Act 1988 (Central Act 49 of1988) & The respective State Lokayukta Acts.


Right to information

WHEN THE INFORMATION COMMISSION IS HIMSELF A PUBLIC AUTHORITY

01

Hence, any Information Commission is obliged to provide information sought from it just as from any other public authority within the time limit prescribed by section 7(1) of Right to Information Act 2005.


Right to information02




Please also note the wordings under section 7(1) “on receipt of a request under section 6 shall as expeditiously as possible………”.

This indicates that it is not a blanket time of 30 days but, not later than 30 days. This makes it imperative that Information that is sought has to be provided expeditiously & the time of 30days is not a standard period for providing information sought.






Preamble of the R.T.I. ACT 2005 states

“An Act to provide for setting out the PRACTICAL REGIME of right to information for citizens to secure access to information under the control of public authorities, in order to PROMOTE TRANSPARENCY AND ACCOUNTABILITY IN THE WORKING OF EVERY PUBLIC AUTHORITY…..






Preamble of the R.T.I. ACT 2005 states

….Democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities ACCOUNTABLE TO THE GOVERNED.”






Being a citizens of India, everyone is also one of the governed. Hence, the governed have a right to demand transparency mandatorily in the functioning of every public authorities, including information commissions & all functionaries in each & every public authority, as these are public servants and hence, are accountable to the governed. The governed can demand explanation for every action or omission from them under Right to Information Act 2005 subject to exemption or qualification as available under sections 8, 9,10 & 11 of the Right to Information Act 2005.






Further, first proviso to section 24 of the Right to Information Act 2005 states: “Provided that the information pertaining to the allegations of corruption & human right violations shall not be excluded under this subsection.” Hence, this provision overrides even exemption or qualification as available under sections 8, 9,10 & 11 of Right to Information Act 2005






According to Section 5 (4) of the Right to Information Act 2005 : The Central Public Information Officer or the State Public Information Officer, as the case may be, may seek the assistance of any other officer as he or she considers it necessary for proper discharge of his or her duties.






Section 5 (5) of the Right to Information Act 2005 states:

“Any officer whose assistance has been

sought under subsection (4). shall render all assistance to the Central

Public Information Officer or State Public Information Officer as the case may be,

seeking his or her assistance……..






Section 5 (5) of the Right to Information Act 2005 further states:

.…..and for the purpose of any

contravention of the provisions of this Act., such other officers shall be

treated as a Central Public Information Officer or State Public

Information Officer, as the case may be.






Section 5 (5) of the Right to Information Act 2005 further

states:

By reading the previous slide, the person indicated by this section

is also recognized as deemed or de facto

Public Information Officer.






Section 5 (5) of the Right to Information Act 2005

If a citizens know about this

de facto or deemed Public Information Officer,

while applying for information under the Right to Information Act 2005,

an applicant can address the application under section 6(1) and or 7(1) read with

section 5(4) & (5) directly to the de facto or deemed PIO.






The applicant can be sure that the pieces information that applicant

seeks from the deemed or de facto PIO can only be provided by him or her & none else. E.g. Information

about decision of judge, Lokayukta, Policy decision by a Chairman with

consent of the board of directors etc. to name a few. The list is exhaustive.






Every citizen knowing one to be being deemed or de facto PIO in a public authority for the information to

be sought, that citizen has the right to seek information from deemed or de facto PIO, deriving the right of empowerment devolved every citizen

of India by the Right to Information Act 2005, (Central Act 22 of 2005) which mandatorily

requires transparency and accountability in the working of every public authority to contain

corruption and to hold Governments and their instrumentalities accountable to the governed.






As per section 2(f) of the Right to Information Act 2005,

“Information” means :“any material in any form, including records,

documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which, can be accessed by a public authority under any other law for the time being in force”

.






So it is well within the ambit & scope of Right to Information Act 2005 to seek

opinion from a deemed or de facto PIO or from any other Government or public

authority or instrumentality therein, as per section 5(4) & (5) of that Act & PIO or

deemed or de facto PIO, is duty bound to give it.

.






As per section 2(f) of the Right to Information Act 2005, “Information” also means :

asking questions & seeking answers therefore, falling under opinion & advices.

The main purpose of enacting Right to Information Act 2005 is to promote transparency and accountability in the working of every public authority & also to contain corruption and to hold Governments and their instrumentalities accountable to the governed.

.






No citizen seeks information out of fancy. It is invariably sought for with a specific purpose, mainly to expose corruption. This is the very purpose of Right to Information Act 2005.

.






Section 22 of Right to Information Act reads thus:

“Act to have overriding effect:- “The provisions of this Act shall have effect

notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923),

and any other law for the time being in force or

any instrument having effect by virtue of any law other than this Act. ….

.






Section 22 of Right to Information Act thus:

….. overrides The Contempt of Court Act 1961 & The Judges Protection Act 1985

insofar as seeking information is concerned. By this provision even judges can be

questioned and information can be sought directly from them about the decisions

in cases decided by them..






There should be transparency in the functioning of Information Commissions too & they are accountable to governed just as any government instrumentality or public authority. Every Citizen is a governed.






Transparency in functioning of the Public Authorities can not be ensured without questioning the acts of Omissions and Commission committed by them. Corruption cannot be checked without rendering a public authority accountable & for this questioning working of a public authority is crucial. Reply so obtained from a Public Authority constitutes information.






Information sought which falls under the purview of sections 8 & qualified by section 9 of Right to Information Act 2005 only is not accessible; Section 10 even allows severability & 11 allow third party information to the extent qualified in those sections of Right to Information Act 2005. Further, Right to Information Act 2005, does not restrict the quantum of information sought by an applicant.






As Section 22 of Right to Information Act, 2005 provides it an overriding effect on any other law, or any instrument (also rules) having effect by virtue of any law.

So also, any law or instrument, such as rules, that seeks to infringe, abrogate, repeal, qualify, rescind, diminish, discriminate or is detrimental to the empowerment that the law makers have provided to the citizens of India by Right to Information Act 2005…

...is NULL & VOID.






Section 21of Right to Information Act 2005

provides only for protection of actions taken in good faith by the Information Commissioners/s& not

for any other action or every action.

Emphasis is on acts or omissions or decisions meeting the requirements to

having been taken in good faith only, are outside the purview of legal proceedings &

prosecution & not otherwise……..






Section 21of Right to Information Act 2005

……. So, it does not provide a blanket cover for any act or omission or

decision by Information Commissioner(s), as a Public Authority,

Onus to prove that the action or omission is taken in good faith lies

with the Information Commissioner/s as Public Authority & not on the

accuser.






Section 7(9) states, “An information shall ordinarily be

provided in the form in which it is sought unless it would disproportionately divert

the resources of the Public Authority or

would be detrimental to the safety or preservation of

the record in question.” ……






Section 7(9) states, Here, the onus to prove that information in the form in which it is sought (that would disproportionately divert the resources of the Public Authority or would be detrimental to the safety or preservation of the record in question) lies with The Public Authority as per Right to Information ACT 2005 which, has to provide convincing reason to be recorded in writing to the applicant.






Section 18 (3) of Right to Information Act 2005 provides only restricted power of Civil Courts as per CPC 1908 (5 of 1908) to Information Commissioner(s). Restricted only to extent what is stated in sub paras (a) to (f) of Section 18(3) only….. and not that of to hold regular courts.






Section 18 (3) 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, namely…..






Section 18 (3) says: Information Commissions may (a) summoning and enforcing the attendance of persons and

compel them to give oral or written evidence on oath and to produce the documents or things;

(b) requiring the discovery and inspection of documents; (c) receiving evidence on affidavit; (d) requisitioning any public record or copies thereof from

any court or office; (e) issuing summons for examination of witnesses or

documents; and (f) any other matter which may be prescribed.






Section 18 (3) says: Information Commissions may (a) summoning and enforcing the attendance of persons and

compel them to give oral or written evidence on oath and to produce the documents or things;

(b) requiring the discovery and inspection of documents; (c) receiving evidence on affidavit; (d) requisitioning any public record or copies thereof from

any court or office; (e) issuing summons for examination of witnesses or

documents; and (f) any other matter which may be prescribed.






Information Commissioners are not JUDGES,

for they are not recruited as per

The Judicial services Recruitment procedure…..






Information Commissioners are not JUDGES

…..Hence, Information Commissioners are not empowered to conduct Court

like proceedings, Courts like arguments by complainant/

complained against & rejoinder by complainant….







….accepting of vakalatnamas for intercession by a lawyer for either

parties, adjournments just as appointed judge/s does/do which,

only delays the information sought that it is invariably urgent for

seeker…..







…. Hence, holding court like proceedings are ULTRA VIRUS

to the powers of Information Commissioners & breach of trust of

the public.







…. Hence, holding court like proceedings are ULTRA VIRUS

to the powers of Information Commissioners….







Information commissioner’s functions are very simple. When a Complaint under section 18(1) or appeal under section19(1) are received, he/she is required only to obtain information sought under Right to Information Act by Complainant, determining whether it is exempted by section 8, or qualified by sections 9, 10 & 11 of Right to Information Act 2005.







However, if information is sought relates to allegations of corruption or human right violations, such an information that is sought cannot be denied as per first rider to section 24 of Right to Information Act 2005 which reads as: “Provided that the information pertaining to the allegations of corruption & human right violations shall not be excluded under this

subsection.”






Information Commissioners to be Proactive

The approach Information commissioners should rightly adapt is as follows: On receipt of a complaint under section 18(1) or appeal under section 19(1) of Right to Information Act 2005, the procedure to be adopted is very simple & does not involve complicated procedure of examination of evidence available or corroborate and inference to be drawn there from.







Commission is only required to go through the application seeking information, ensure that the information sought by applicant is not exempted from disclosure by Section 8 & cannot be covered under section 9, 10 or 11 of R. T. I. Act 2005 or has overriding effect by rider to section 24 of RTI Act 2005.







On satisfying itself that the application has not sought any information exempted from disclosure by section 8 & can be covered under section 9 of R. T. I. Act 2005, the commission shall record receipt of complaint, assign it a reference number, acknowledge the complaint to the sender…….







…address a letter under common seal of information commission, seeking explanation from the Public Authority complained against, along with a copy of complaint as well as the relevant application seeking information from Public Authority, directing that Public Authority to provide information sought by the complainant, reporting compliance & explanation as to why the information was not provided within time stipulated, by 15 days or less, indicating penalty that shall be imposed. ….







…This function can be discharged by the section officers/deputy secretary/ secretary after the complaint be placed for pre facto perusal by the information commissioner, …….as the information commissioner does not have right to delegate his/her authority by RTI Act 2005. The provision of la “A delegatee cannot further delegate”. If an Information Commissioner does so, he/she shall be liable for disobedience to law by a Public Servant as per section 166 of Indian Penal Code 1860







For every piece of information sought by an applicant that is denied to the applicant by any Information Commission, the Information Commission is bound to provide reasons there for, by virtue of promotion of transparency in the functioning of every public authority & government & its instrumentalities being accountable to the Governed.







If no compliance is received within 15 days or less, Information Commissioner can exercise powers

vested with the commissioner by virtue of section 18 & 20 of Tight to Information Act 2005, cause the public authority to deliver the information sought

and impose penalty after giving the Public Authority, reasonable opportunity of being heard

where the onus of proving that it has acted reasonably & diligently shall be on Public Authority







Also section 19[(5) & (6)] of Right to Information Act 2005, which extends to complaints under section 18(1) of Right to Information Act 2005. i.e., the onus to prove denial of information is justified shall be on the denier of information, i.e., PIOs/FAAs






If the Information Commission refuses to acknowledge receipt of complaint sent by the complainants under Right to Information Act 2005. The complaints sent by courier are not traceable. If two or more complaints are sent in one envelope, with envelope superscripted, some of the complaints are missing & are not traceable. This tantamount to maladministration & disobedience to law by a public servant.






No acknowledgement for receipt of the complaints, Information commissions violate the mandatory requirement of transparency in its functioning, as functionaries of Information Commissions are Government Instrumentalities, they are accountable to Governed. It also tantamount to breach of trust of the public & disobedience to law by a public servant






Further, Information Commissioners are not empowered by the Right to Information Act 2005 to conduct the exercises of civil court like hearings, adjournments, arbitrary decisions disregarding facts of complaints which, those are counter productive to the principle/intentions of law makers, underlying Right to Information Act 2005 which, the law makers have desired….






…These exercises are unnecessary, more ornamental, vitiate the process of delivery of

relief to complainants, inordinately delay decisions by Information Commissions

thereby denying complainants the information sought, indirectly sending a

message to various public authorities that Right to Information Act 2005 is ineffective &

need not be considered seriously, eroding the confidence of public in the effectiveness

of Right to Information Act 2005!






…By doing so, the information Commissioners squander State or Central Exchequer’s funds which is public money & is tax payers’ money. They are accountable to governed.Also, by doing so they act ultra virus, breach trust of people, become are liable for maladministration, disobedience to law & can be complained to respective state Lokayuktas






Information Commissioners issue summons to PIOs or Deemed PIOs in Public Authorities as per column V rule 1 & 5 of Code of Civil Procedure which is ultra virus as their powers are restricted only to The Code of Civil Procedure 1908 (5 of 1908). There is no authority to issue summons but, only a notice stating that powers vested with The Information Commission by virtue of Right to Information Act 2005 as these Information Commissioners are not judges.






It is also observed that the Information Commissioners delegate their authority in utter disregard to principle, Delegatee cannot further delegate.






If one looks at the academic & professional profile of Information commissioners one would observe that most of them do not qualify themselves to be Information Commissioners as they hardly fulfill criteria for appointment as Information Commissioners. See sections 12(5) & 15(5) of Right to Information Act 2005. It is indicative of corruption in process of appointment. It is also evident that in the process of appointment the provision of law i.e RTI Act 2005 section 4 (c &d) are disobeyed. Liability exists for Chief Minister/Prime Minister, opposition leader, Cabinet /State Minister as well as Governor/President under section 166 of IPC 1860 for disobedience to law






Citizens should exercise the principle of accountability to the governed and use Right to Information Act 2005 to question this.






Section 6(1 b) of Right to Information Act 2005 states “Provided where such request cannot be made in writing (viz., especially in case of illiterate), the Central Public Information Officer or State Public Information Officer, as the case may be, shall render all reasonable assistance to the person making a request orally to reduce the same in writing.”






A complaint under R. T. I Act originates when a PIO to whom an application under Right to Information Act 2005 section 6(1) is addressed seeking information, fails to provide it to the applicant within stipulated period of 30 days. This happens only when the public authority demur to provide information fearing implication owing to irregularities or by exposure of corruption.






Although Right to Information Act 2005 requires that information sought by applicants under this act be provided expeditiously but, in any case not later than 30 days from the day of receipt. However, even if the information is readily available, it is seldom provided quickly but, till the 30 day period elapses, in many a cases antedating the letters!






Complaint procedure to Information Commission under Right to Information Act 2005 is very simple & does not involve complications of examination of evidence available or corroborated and inference to be drawn there from.






Further, despite the fact that Information Commission is constituted to oversee implementation of Right to Information Act 2005 & is empowered to decide complaints received from citizens of India thereunder; it is also a Public Authority as defined in section 2 (h) of Right to Information Act 2005. Being a public authority, it is required be transparent in its functioning and be accountable to the governed.






Further, despite the fact that Information Commission is constituted to administer Right to Information Act 2005 & is empowered to decide complaints received from citizens of India thereunder; it is also a Public Authority as defined in section 2 (h) of Right to Information Act 2005. Being a public authority, it is required be transparent in its functioning and be accountable to the governed.






Documents

Facts that are extremely relevant to your Right to information Points that are extremely relevant to Right to Information Act 2005, to Ponder Prepared