Reply to Venkatesh on 11.04.06

Dear Venkatesh,

1) This is to acknowledge thankfully your quick reply to my rejoinder on the Resolution of the National Conference. First of of all, contrary to what I claimed in my rejoinder, you are right in saying that Tamilnadu didn't set a time-limit for the disposal of the 2nd appeals. I am now just surprised at the kind of optical illusion that I used to carry and circulate for quite some time now, and don't know from where it was sourced. Anyway thanks a lot for dispelling this factual error on my part.

2) Next, as regards Madhya Pradesh, I re-read their RTI Rule-8(3) just to cross-check the degree of conclusiveness or otherwise of the provision regarding the time-limit of 30 days for 2nd appeals. It says, "The State Information Commission shall after giving reasonable opportunity of being heard to public authority or Public Information Officer or appellant, as the case may be, dispose ( actually written 'disposed'- the word in the past tense appears to be an inadvertently committed grammatical error- Italics mine) of the appeal within thirty days from the date of the receipt of the appeal for reasons to be recorded in writing." With the words like 'shall . . . . dispose of" ( not 'may' etc. ) having been used, can there be an iota of doubt on the full-scale conclusiveness of the provision of time-limit of 30 days for disposal of 2nd appeals? Of course, you are factually right in quoting the Hindi version of the MP RTI Rules where the word 'nirakaran' (meaning rejection or in the language of the court 'dismissal') in stead of the appropriate equivalent 'nipateyi' ( meaning 'disposal' proper) has been used, as the source of the confusion. As you know, the dictionary meaning of the word 'dispose' as accepted by courts here and all over is 'to settle', which may mean a variety of connotations, such as allowing, dimissing, or even partially allowing and partially dismissing etc. If a State Government has made a faulty or skewed Hindi rendering of the word 'dispose' to mean only dismissal as you say, then it is only they who stand to be corrected, but not we who are to read an incorrect or a limited meaning, as they like to impute, into a too popular English word like 'dispose', celebrated for its universal use over centuries. Interestingly enough, there is also a definite provision in the Constitution of India under its Article 348(3), that can serve as a trouble-shooter in such confusing situations. It says categorically that where there is a confusion over the meaning of a particular word or expression written in a language other than English, “a translation of the same in the English language published under the authority of the Governor of the State in the Official Gazette of that State shall be deemed to be the authenticated text thereof in the English language under this article”. In the instant case, therefore, going by the English text of the MP RTI Rules, which has been properly notified, we have to understand that the MP Government has made a conclusive provision of 30 days’ time-limit for disposal (settlement) of all cases of 2^nd appeal by the State Information Commission. If there be any confusion in the mind of any officer of MP created due to the Hindi word ‘nirakaran’, then it is our duty to dispel the said confusion on the strength of the given Constitutional provision, but certainly not to share it among ourselves, least to fall into their well-orchestrated linguistic trap.

3) Yes, as you say it is true that the MP RTI Rules has not made any ‘explicit’ (emphasis mine) provision for disposal of complaints under Section 18 of the Act. As a matter of fact, if you read the wording of the Act carefully, you shall notice that quite often, but not always, the words ‘appeal’ and ‘complaint’ have been used interchangeably. For instance, the Section 19(9) says, “The CIC or SIC, as the case may be, shall give notice of its decision, including any right of appeal, to the ‘complainant’ and the public authority.” The word ‘complainant’ used here also implicitly includes an appellant. Otherwise, the said section would literally mean that only a person who makes a ‘complaint’ under Section 18(1) shall have the right to receive the notice of the Commission’s decision, not a person who makes a 2^nd appeal under Section 19(3). Again, read Section 19(8b) of the Act, that says that the CIS or SIC, as the case may be, shall ‘require the public authority to compensate the complainant for any loss or detriment suffered’. You shall certainly agree that the word ‘complainant’ used here doesn’t prohibit an ‘appellant’ under Section 19(3) to ask for the compensation under the Act, or reversely the Commission has no power to compensate an ‘appellant’ under Section 19(3) of the Act. Then read Section 19(5) that says, “In any appeal proceedings, the onus to prove …. shall be on the CPIO or SPIO, as the case may be, who denied the request”. Here by using the only word ‘appeal’, the Act, you shall agree, doesn’t intend to mean that in deciding a ‘complaint’ the Commission shall throw the onus on to somebody else than the PIO. This is an expression of the Act, in which the word ‘appeal’ has been used in a generic sense to include a complaint too within its ambit. Given such interchangeable use of the words ‘complaint’ and ‘appeal’ which largely informs the text of the Act, the Section 19(10) while using the single word ‘appeal’ implicitly includes its sibling ‘complaint’ within its purview too. Thus when the crucial Section i.e. the Section 27(2e) speaks of an appropriate Government to make rules on the procedure to be adopted by the CIC or SIC, as the case may be, in deciding ‘the appeals’ under sub-section (10) of section 19, the word ‘appeals’ logically enough, comprises both an ‘appeal’ under Section 19(3) and a ‘complaint’ under Section 18(1). Of course, it would have been better if the Act would have given separate definition of the words ‘complaint’ and ‘appeal’ under its Section 2(Definition). In absence of a clear-cut definition of the same, we however have to infer their respective meaning, from the manner in which these two words have been used interchangeably at times in the body of the Act i.e. the word ‘complaint’ means an appeal too as in case of Section 19(8b) and Section 19(9) and vice versa as in case of Section 19(5). Now one may raise the question, ‘This is all about the Central Act, so far good, but why should the State Government of MP abide by the interpretation of the word ‘appeal’ to mean ‘complaint’ and vice versa, and more so, why should they accept this interpretation when they have explicitly titled their Rule 8 as ‘Second Appeal’?’ My answer is, they are bound to, since the Rule 2(g) of the MP RTI Rules, 2005 says, “The words used in these rules but not defined shall have the same meaning as they are defined in Section 2 of the Act.” And the Section 2 (k) defines the State Information Commission as that which ‘is constituted under sub-section (1) of section 15”. And Section 15(1) says, “Every State Government shall, …. constitute a body to be known as …. Information Commission to exercise the powers conferred on, and to perform the functions assigned to it under this Act”. The powers and functions of both Central and State Information Commissions, as is well-known, are dealt with under Sections 18, 19 and 20 of the Act, wherein the words ‘appeal’ and ‘complaint’ have been frequently used and more so in an interchangeable manner as we have already surveyed. Thus going by the Act read with the MP Rules made there-under, it can be upheld that the time-limit of 30 days that the MP Rules has set for the 2^nd appeal shall also be applicable in case of complaints to be made under Section 18(1) of the Act.

My sole concern is, we should give the devil due, which means, we should highlight the ‘good practice’ if any shown by an appropriate Government in any aspect of the Rules-making under the Act, and appeal to the laggards and deviants among the lot to follow suit, in stead of clubbing all of them together and telling them to follow our perception of the wise course, which is in their skewed perception, if not objectively, situated external to their world of wisdom.

4) At the same time we should encounter the saint for all his satanic mischief. Here I have not only Orissa in mind, but also some other recalcitrant States such as Chhatisgarh, Arunachal Pradesh, Haryana and Punjab, not to mention States like Bihar, Uttar Pradesh and West Bengal which defiantly enough, have not yet brought out a minimal set of Rules worth calling so. Though every State can be faulted on some count or the other for deviation from the mandates of the parent Act, which we shouldn’t relent in laying bare, there are however deviations and deviations. We can, for the sake of convenience, divide the deviations broadly into two kinds- 1) deviations relating to fees and costs, and 2) deviations from principles. The first kind of deviations is easy to identify and address to, on the part of both civil society and even the personnel of the Government. For instance, who doesn’t know that Rs.20/- is more than Rs.10/-?, Or the provision of only a single mode of payment is less convenient than a multi-mode payment system? Is an enlightened organization like CHRI or for that matter ISI at all required to identify and address to such easily discernible deviations? But certainly they are required to identify and address to the other, not-so-easily visible kind of deviations, i.e. deviation from principles. The perpetrators of the former kind of deviations can be called misers or money-mongers, but the later kind villains and sinners. The revision of the former kind shall be effected sooner or later, because the apparent irrationality of it is too striking to ignore even on the part of its protagonists. But the deviations of the second kind, couched as they are in round-about language and sealed as they are under the trademark of Right to Information are nor directly or easily amenable to people’s grasp. One has to do a lot of deconstruction exercises in order to unearth and decode the whole lot of monstrosity, which permeates, say for instance, Rules 10, 12 and 13 of Orissa RTI Rules. I consciously cite the example of Orissa here, since it provides a classic demonstration of how India’s poorest State can improvise the shrewdest ploy of perpetuating the status quo i.e. the regime of official secrecy, in the very name of implementing Right to Information, and nay, abuse a progressive law like the RTI Act just to canvas legitimacy for the diametrically opposite set of principles, reminiscent of remote, pre-1858, colonial, draconian regime of East India Company, i.e. to threaten away and penalize the people for peeping into what goes on behind the door in ‘public offices’ so-called. Judged from this perspective, you shall hopefully agree, the case of Orissa is not simply the case of a particular State to be dealt with as such, but a test case, where the forces opposing RTI and forces favouring it are arrayed in an unequal battle with the common people remaining indifferent. Since the common people don’t see a direct and immediate link of RTI with their daily bread, they are yet to evince a serious interest in the RTI related issues. You shall appreciate, the Orissa brand of RTI Rules is like an HIV virus, which if not detected, isolated, quarantined and treated in time, it would inevitably infect other States of the country, where we find today on the whole a relatively healthier set of Rules operating under the RTI Act, notwithstanding some or other omissions and commissions by each of them. But their omissions and commissions can be likened to an act of eve-teasing, while that of Orissa to an attempt to rape and murder. So a concerted move of protest against the Orissa RTI Rules by the civil society groups from all over the country is called for precisely to ensure that they be on guard against any further invasion anywhere and by whomsoever on the rights and entitlements already guaranteed to the citizens under the RTI Act.

Venkatesh, I think I have been sufficiently clear by now as to why those issues of Orissa RTI Rules, which didn’t relate to fees and costs as such, but to quintessential basics, should have found their due space in the discourse of the Conference. Like the drafters of the Resolution I do also totally agree that a Resolution of your sort, in order to be readable and impactive should avoid being lengthy, and confine itself to a few chosen matters only. But the moot point is, what stuff should we choose both for the agenda of discussion and as well the Resolution/Recommendation of a mega forum like National Conference? Again, you shall agree, more intricate and intractable the nature of issues that informs a deliberation or a discourse, richer shall be its output both for the participants and recipients. And you shall agree further that a pithy reflection on Orissa RTI Rules, especially its Rules 10, 12, 13, Form A and Form C, to mention only the few dreadful ones, even in a barely skeletal manner would have greatly enriched the deliberations and resolution of the Conference.

5) Coming to your contention that since the appropriate governments are not in a mood to set the time-limit for the disposal of the second appeals or complaints, the Resolution has called upon the Information Commissions to do so. But can Information Commissions which are themselves a creature of the law ever dare to short-circuit the clear-cut procedure laid down by the RTI Act, which in Section 27(2) pins the responsibility on the appropriate governments to frame the appeal rules that might include a time-limit for disposal of an appeal/complaint? Since the appropriate governments, not Information Commissions, are supposed to ensure compliance to the financial and infrastructural requirements necessary for implementing the appeal rules (be it time-limit or any other matter relating to an appeal), the Act has perhaps for that reason entrusted the responsibility of framing the appeal rules on the appropriate governments. Of course the Information Commissions have the power under Section 25(5) to recommend to a public authority, whose practice ‘does not conform with the provisions or spirit of the Act’, ‘steps which ought in its opinion to be taken for promoting such conformity’.

To sum up only the operative part of what I intended to say above:

- We should call upon the appropriate Governments at Centre and in States to set a time-limit of 30 days for disposal of appeals/complaints under the appeal rules as required under Section 27(2) of the RTI Act emulating the example of Madhya Pradesh.

- The Orissa RTI Rules which is ultra vires out and out has far-reaching implications for the future of the entire RTI law at national level, and should be treated as such.

- The Information Commissions at Centre and in States should be requested to recommend to the respective appropriate Governments to amend the ultra vires provisions in the Rules, if any made by the latter and to prescribe a time limit for disposal of an appeal/complaint, exercising their power under Section 25(5) of the RTI Act.

- The departures by the particular States from the do’s and don’t’s prescribed by the Act should receive the focus that these deserve in the discourses of any national or State level forum organized by the civil society groups.

Last but not the least, we look forward to CHRI to organize at the earliest a regional level consultation, as suggested by you, where the ultra vires provisions of the RTI Rules of Orissa and other concerned States can be discussed in greater depth. In fact I had finished writing the major part of this letter by 5^th instant, but due to my sudden detour to South Orissa during 5-9 I couldn’t mail it then. My apologies for the delay so caused. As regards, the downward revision of fees by the Orissa Govt as announced in the Assembly on 3^rd instant last, the Govt just showed a gesture of submitting to the demand of the civil society groups raised from within and outside the State. However this was neither the major demand of our campaign. Our demand for a thoroughgoing recast of the ultra vires provisions in the Orissa RTI Rules remains as valid today as before. We shall return to this theme later in greater detail.

With warm regards,

Chitta Behera

Dated 11^th April 2006