From: umapathi s <umi_sbs@yahoo.com>
To: rti_india@yahoogroups.com
Sent: Tue, August 31, 2010 1:09:23 PM
Subject: Re: [rti_india] Re: Another Major Threat to RTI Applicants- "Notice of CONTEMPT PROCEEDINGS BY C
FROM: DATE: 31-08-2010.
UMAPATHI.S
POST Box NO.1307,
Jalahalli Post Office, BY SPEED POST
BANGALORE-560013.
TO:
Shri. Aakash Deep
Joint Secretary (LAW),
Central Information Commission,
306, 2nd Floor, August Kranti Bhavan,
Bhikaji Cama Place, New Delhi-110 066.
Sub: SUBMISSION OF REPLIES TO YOUR SHOW CAUSE NOTICE.
Ref: your letter dated 19-08-2010 bearing number: CIC/legal/2010/077.
--------
Dear Sir,
Please kindly refer your captioned letter (received by me on 26-08-2010) calling for explanation and tendering unconditional apology to Hon'ble Information Commissioner shri. A.N.Tiwari. In this connection I submit the following for your kind attention.
1) At the outset I state that my communication addressed to rti_india@yahoogroups.com is misconceived by the Commission as defamatory and scandalizing to the Hon'ble Information Commissioner shri. A.N.Tiwari. I state that I had no such intention as I have high regards for the all the Hon'ble Central Information Commissioner, including shri. A.N.Tiwari. it is unfortunate to note that it has created a wrong impression at CIC.
2) I state that the last two lines of my mail mentioned by the CIC are neither defamatory nor scandalizing if it is understood in the proper context and the circumstances in which it was written. The words "corrupt" and "corrupt motives" were intended to mean as "improper" or "illegal behaviour". The word corruption or corrupt has wide meaning and conveys different meaning in different circumstances. It is a much used - and abused- term and not easily defined. Apart from obtaining illegal gain or gratification, Corruption would mean abuse of power in decision making process, dishonest or illegal behaviour especially of people in authority. It signifies a form behavior that deviates or departs from ethics, morality, law and civic virtues. It is dishonest or partial behaviour in the discharge of duty and includes breach of trust. Corruption means act of impairing integrity, Virtue or moral principles. It also means departure from what is pure, simple or correct. Sometimes it has the same meaning of "illegal" and hence some times contravention or non-compliance of any law or rule by authorities would also fall within the expression of corruption. Corrupt has the same connotation as "illegal". The prevention of Corruption Act -1988 has also not defined the term Corrupt or corruption. The committee on prevention of Corruption (popularly known as Santhanam Committee) based on whose recommendation the "Central Vigilance Commission" was set up, defined corruption as "improper or selfish exercise of power and influence attached to a public office or to the special position one occupies in public life." It is in this context of "illegal exercise of power" or "improper exercise of power" that the words "corrupt" were meant by me and not as obtaining any illegal gratification for personal gains. Therefore my wordings are neither defamatory nor scandalizing. I sincerely regret my wordings and writings in my Mail for causing wrong impression leading to the issue of your notice of contempt Proceedings.
3) I state that the behaviour or conduct of the Information Commissioner during the proceedings was improper and illegal as shri. A.N.Tiwari insulted me in presence of banks' respondents and made certain other objectionable statements about my integrity, intention and purpose of filing Appeals cum complaints before the Commission. Further I state that, shri A.N.Tiwari was impatient and behaved arrogantly during the proceedings. It is against this background that I was constrained to make a complaint to the Hon'ble President of India and Hon'ble Chief Central Information Commissioner. The communication addressed to the Yahoo Group was also made in good faith and in Public interest so as to invite member's opinions and suggestions .Hence, I state that my acts are neither deliberate nor motivated as alleged by the Commission. I exercised my ordinary right of criticizing the improper behaviour of shri. A.N.Tiwari in good faith and I feel I have not committed any wrong. Accordingly, my conscience doesn't permit me to tender any unconditional apology to shri. A.N.Tiwari as called upon by the Commission.
4) I further state that the Commission, Headed by Chief Information Commissioner, is free to enquire whether or not my allegations of improper and illegal behaviour on the part of shri. A.N.Tiwari is true or false. As the proceedings of my Appeals cum complaints were conducted through Video Conferencing, the records of those proceedings are easily made available. The Commission can observe the said proceedings and if my allegations are baseless or unfounded, it is free to initiate the contempt proceedings against me or take actions for making false complaint as per law. In substance, I request the Commission to take an objective consideration of all the factors and exercise its power as deem fit i.e. either taking actions against me for making false allegations or taking corrective measures by advising shri. A.N.Tiwari not to insult the appellants/complainants during its proceedings in future. I am ready to extend all my co-operation in this regard.
5) I state that the notice issued by the Commission calling upon explanation and unconditional apology to an individual Information Commissioner is not in accordance with law. The Commission is a subordinate court under the jurisdiction of Hon'ble High Court. A perusal of provisions of Contempt of Courts Act would show that a Court subordinate to High Court has no powers to initiate proceedings under Contempt of Courts Act. Under Section 10 of Contempt of Courts Act, the High Court alone can take cognizance of an alleged contempt having been committed in respect of subordinate Courts. In order to bring the alleged conduct to the notice of High Court, a subordinate court is supposed to send a reference of the matter to the High Court. A subordinate court cannot itself assume jurisdiction under Contempt of Courts Act and issue show cause notice as to why contempt proceedings should not be initiated. (Pl refer the Judgment of Hon'ble High court of Delhi dt 05-08-2010, case number Crl.Mc-2899 of 2009 for more details). The provisions of Contempt of Courts Act cannot be resorted to by subordinate court even as a threatening provision or for calling upon to tender an unconditional apology to an individual Judge (in this case shri. A.N.Tiwari) .If there are prima facie materials before the Commission for initiating Contempt Proceedings, it should have sent the reference to the High Court and it is for the Hon'ble High Court to issue show cause notice. I feel that the Commission is not empowered to call for explanation or for calling an unconditional apology to the information Commissioner in the name of initiating action under Contempt of Court Act-1971. Under these circumstances I feel that there is no need to tender any unconditional apology to shri. A.N.Tiwari at this stage. If Commission still feels that my acts constituted contempt of court, it can make a complete reference (including the contents of Video Conferencing taken place on 11-08-2010) for the reference of Hon'ble High Court and I would be ready to face the trail as per laid down law. In other words, I am requesting the Commission to adopt due process of law so that the truth can be ascertained and action be initiated against those responsible for violation of law.
6) I state that the Commission is not adopting fair and transparent procedures in initiating action under the contempt of Court Act. Before issuing the show cause notice and calling for unconditional apology to the information commissioner, the commission should have ascertained the intention of the alleged contemner i.e. whether the intention is bonafide or mala fide. My email communication was addressed to the rti India Yahoo group where posting is restricted only to limited registered Group members. The Said Group members would exchange their views and opinions on the various aspects having impact on RTI Act-2005.My posting in those Group is to invite members' opinions and views and also to highlight the misbehavior on the part of the shri. A.N.Tiwari and the insult experienced by me during the proceedings. Whatever written in my complaints and also in my email communication was based on true facts and the sole object was only to take remedial action by the concerned authorities and to invite the opinions of Group members. Hence my intention was bonafide one. On the other hand, if my intention was mala fide, I would have posted the contents of said e-mail openly in various other forums like press and media and other various websites so as to convey the message to larger section of the people across the county. Such kind of exercise is not very difficult in the present age of Technology. But as the Commission can see itself, I had addressed my communication expressing my grievance and experience only in two websites (i.e. rtiindia.org and rti India yahoo Group) which are related with RTI Act. The object was only to highlight the Misbehavior of shri. A.N.Tiwari and to invite their free and open suggestions. This act of mine is completely within the scope of law since Article 19(a) of the Constitution of India confers the Fundamental Right to freedom of Speech and Expression on every citizen. This being the case, no mala fide can be attributed to me. Open and fair criticism of a Judge is not an offence under contempt of court Act. The path of criticism is a public way. It is open to anyone to express fair, reasonable and legitimate criticism of any act or conduct of a judge in his judicial capacity. The Commission, I am sorry to mention, has failed to consider this vital aspect before issuing me a show cause notice calling for explanation and unconditional apology to shri. A.N.Tiwari. The approach of the Commission is illegal and amounts to abuse of power. Hence I am not willing to tender any apology to shri. A.N.Tiwari as called upon by the Commission.
7) I state that the commission is not exercising its power in the right spirit. If we look at the present show cause notice calling for explanation and unconditional apology from another angle, it becomes clear that commission has exercised its power to safeguard or protect an individual Information commissioner i.e. shri. A.N. Tiwari. The law of contempt or the power of Contempt is essentially meant for keeping the administration of justice pure and undefiled. The contempt of court jurisdiction is not to protect an individual judge, it is to protect the administration of justice from being maligned. (Pl see (2001) 2 S.C.C.171 at pp.177-78:2001(1) A.L.D. (Cri) 222 (S.C.). Further, the contempt is a matter between the court (i.e. the High Court in this case) and the contemner. Whether or not to tender an apology is to be decided by the Court taking cognizance of the alleged contempt. The High Court, not the subordinate court, is the best judge how to deal with the alleged contemner. In the instant case, it can be seen that my e-mail communication which was addressed to rti India yahoo Group has been forwarded by one member (i.e. shri. Subramanian) of our group having e-mail id "gs.manian@nic.in personally to shri A.N. Tiwari having e-mail id "an.tiwari@nic.in which is the source for initiating the present contempt proceedings against me and calling for an unconditional apology to shri. A.N.Tiwari. The decision of the Commission to initiate the contempt proceedings based on the e-mail received by shri. A.N. Tiwari and calling for the unconditional apology to him is only an exercise to protect his own self image. The Commission viewed my communication as defamatory to Hon'ble Commissioner Shri. A.N.Tiwari and hence called upon to tender an unconditional apology to shri. A.N.Tiwari by assuming the power of Hon'ble High Court. Further, even though my wordings are not defamatory, the commission issued me the show cause notice without any distinction made between mere defamation and contempt of court. The Commission should have ascertained whether my writings are a mere defamatory attack on shri. A.N.Tiwari or whether it is calculated to interfere with the course of justice, since it is only in the later case that the grounds for taking action for contempt would arise. So, on these grounds too, the commission's notice calling for explanation and unconditional apology to shri. A.N.Tiwari is illegal and is issued in the interest of defending the misbehavior of shri. A.N.Tiwari. The citizen's right to offer healthy and constructive criticism which is fair in spirit must be left unimpaired in the interest of Commission itself. Instead of asking me to tender unconditional apology to shri. A.N.Tiwari, the commission should have, I feel, advised shri. A.N.Tiwari to behave properly during its proceedings so that such complaints are not received by them in future. Hence, I state that there is no need to tender any unconditional apology to shri. A.N.Tiwari as called upon by the Commission.
8) I further state that the commission's approach in issuing show cause notice in case of alleged contempt is also not being applied equally as per law. There are many cases of direct complaints of non-compliance of commission orders by the CPIO and FAA of public authorities. When such complaints of non-complaints are made to the Commission, the commission is not initiating the contempt proceedings nor taking stern actions against the public authorities (that too after waiting for many months) for their willful disobedience. Even my own complaint of non-compliance is not being handled by the Commission since long. So, a genuine question arises in one's mind as to the biased approach on the part of the Commission. The Commission could issue me a show cause notice and called upon for tendering an unconditional apology within two days of receiving the forwarded mail (i.e. indirect reference) while no such action is taken by the commission on many of direct complaints of non-compliance of its orders (i.e. direct reference) by the public authorities. I have not come across any instance of issuing the contempt notice to any CPIO or FAA by the commission even though there are clear grounds for proceeding in such cases. There are many cases of willful disobedience of Commission's order warranting initiation of criminal contempt against them. This kind of duality or inequality should be avoided by the Commission and the commission is requested to adopt the principle of equity and equality in the larger interest of keeping the administration of justice pure and undefiled.
9) I further state that I have received commission's decisions in more than 50 cases so far and I am grateful to the commission as I could make some complaints to the Central Vigilance Commission based on the documents so obtained under RTI Act. I know that the commission is a vital institution of national importance vested with the primary jurisdiction of adjudicating the dispute arising out of RTI Act-2005. In the past I have not made any such complaints or writing against any of the commissioner or officials of the Commission. I have due regards and respect for them. As a law abiding citizen, I know the consequence of making a wrong or false allegations against the authorities holding constitutional position. I have no intention of either defaming shri. A.N.Tiwari or scandalizing the commission or interfering with the administration of justice. It is once again stated that the said communication was made with bonafide intention of reporting the misbehavior of shri. A.N.Tiwari and the insult I underwent in presence of bank's respondents which deeply affected my sentiments and values. Hence, I had to criticize shri. A.N.Tiwari by reporting the factual aspects of the proceedings. Though it has caused embarrassment to the Commission, it can't attract any of the offence under the contempt of Courts Act and it can't be interpreted as scandalizing the commission. The Hon'ble Supreme Court in its case Indirect Tax Practitioners Association v/s R.K. Jain,(date of Judgment 13-08-2010) has held that truth should ordinarily be allowed as defence in contempt proceedings and honest criticism of judiciary which is in public interest don't attract action under contempt proceedings. Hence, I would say that such bonafide criticism made in public interest serve as valuable guide in rectifying its errors and mistakes and ensures citizen participation in the judicial process so that due and proper administration of justice can be achieved. I express my sincere thanks for giving me an opportunity to clarify things which has caused embarrassment to the Commission.
10) I finally state that considering all the facts and detailed explanation submitted as above, there are no grounds for the commission to initiate any further action either under contempt of Courts Act or Criminal action under India Penal Code. There is no need to tender any unconditional apology to shri. A.N.Tiwari. Hence, it is requested to drop those proceedings against me in the interest of equity and justice. In spite of these grounds and circumstances submitted by me, if the Commission initiate any action against me it amounts to abuse of power and the Commission would be doing them at its own risk and cost.
The present explanation is being sent by speed post to the commission's address. The soft copy of the same is also sent to Chief Central Information Commissioner and also to information Commissioner Shri. A.N.Tiwari. kindly communicate your decision in the matter. Also kindly note the change of address and direct all your correspondence to the new address in future.
Thanking you, yours faithfully,
Place: Bangalore
Email:umapthi.s.rti@gmail.com. (umapathi.s)
Phone: 9480017995.
From: ashish kr1965 <ashishkr1965@yahoo.com>
To: rti_india@yahoogroups.com
Sent: Sat, 28 August, 2010 7:34:09 AM
Subject: Re: [rti_india] Re: Another Major Threat to RTI Applicants- "Notice of CONTEMPT PROCEEDINGS BY C
Dear moderators of this group.
1. The volume of spam in our inbox originating from this group is
intolerable, The spam filters need to be readjusted to ruthlessly
filter out contributions not concerned with RTI.
2. A cabal of disgruntled officers facing serious disciplinary and
corruption charges, now masquerading as RTI activists @whistleblowers,
have obtained membership recently to this group and started using our
groups bandwidth to divert our focus from discussion on RTI instead to
unwarranted accusations against Information Commissioners.
3. The contempt notice from the Central Information Commission to Mr.
Umapathi S is
a clear caution that free speech has its limits. Mr Umapathi seems
oblivious to the high office of the President of India in his
defamatory complaint concerning ANT which is replete with invective
and personal spite. One seriously wonders how a public authority like
the State Bank could employ such individuals, or why we should put up
with them at our group.
4) The case of Mr VB Singh is even more serious and deserves immediate
intervention. He is a practiced hand at misusing yahoo groups since
2006. http://www.mail-archive.com/bharatudaymission@yahoogroups.com/msg01800.html
In another example from 2006 he managed to fool Kumaraswamy of INDIARTI
http://customsmuddle.wordpress.com/2006/07/02/this-rti-request-to-cvc-of-v-m-kumaraswamy-needs-to-followed-up-by-an-rti-activists-if-any-questions-write-to-v-m-kumaraswamy-he-will-reply-for-your-questions/
The wild allegations and intemperate language used by Mr Singh in this
email mandate that such persons should not be allowed to post to/from
this group or communicate with our members. Shailesh Gandhi, Rajesh
Darak and other Mumbai activists have filed over 120 RTI requests
collectively on behalf of Mr Singh, a vigilance officer, who faces
numerous serious accusations of corruption in cross cases iof
smuggling nvolving Abu Salem, Chota Rajan gangs.
Ashish
>
> From: umapathi s <umi_sbs@yahoo.com>
> Date: Fri, Aug 27, 2010 at 10:28 AM
> Subject: Re: [rti_india] Re: Another Major Threat to RTI Applicants- "Notice of CONTEMPT PROCEEDINGS BY C
> To: rti_india@yahoogroups.com
>
>
> Dear Members Now it is becoming clear that the CIC is exceeding its power and its own jurisdiction . AS one of our members mentioned it is nothing but tactics to silence our voice.
>
> In order to have a constructive conclusion, I mention below points which may help members to decide on the legality of the contempt notice issued by CIC.
>
> 1) There is a dilemma whether or not CIC is a court.
>
> 2) If we accept that CIC is a court, even in this case, CIC has no power to issue the show- cause notice for Contempt proceedings.
>
> 3) As per one of the decisions of the Hon'ble High court of Delhi, "the lower courts have no power to prosecute a person for contempt of court". 'A perusal of provisions of the Contempt of Courts Act would show that a court subordinate to high court has no powers to initiate proceedings under the Contempt of Courts Act. Under the act, the high court alone can take cognizance of an alleged contempt having been committed in respect of subordinate courts,' the court said.
>
> 4) Only higher courts can take cognizance of contempt committed by a person against lower judiciary. In the same Judgments the court observed that "A subordinate court is supposed to send a reference of the matter to the high court. A subordinate court cannot itself assume jurisdiction under the Contempt of Courts Act and issue show cause notice as to why contempt proceedings should not be initiated,
>
> 5) Whether our group is private or public it doesn't matter much. What is imp is publication is any manner which scandalize or interfere with the administration of justice. This is to be decided by following the rule of law and facts and circumstances of the case.
>
> 6) The contempt proceedings have to be used only sparingly and cautiously.
>
> 7) The contempt Jurisdiction is not to protect an individual Judge. ( if ICs are declared as Judges).it is meant for the maintenance of effective legal system.
>
> 8) Contempt proceedings can be used only when the proceedings are pending. (In the instant case, the IC had already decided the case).
>
> 9) Contempt proceedings are quasi-criminal and quasi-judicial.
>
> 10) I shall be attaching the Scanned copy of the notice received by me soon (I have no scanner at Home, hence the difficulty), to prove the authenticity of my posting as some members mentioned.
>
> 11) I started the thread on this topic since it is a new and vital subject on the powers of the CIC and our Fundamental rights. The aim is to invite the views of OUR enlightened members .Tomorrow our other members may be forced to face such situations
>
> 12) I have addressed the complaint to Hon'ble President as "Her Excellency" in my complaint. No defamatory statement is made by me and it has nothing to do with the present notice issued by CIC.
>
> Regards.
>
> ________________________________
> From: VB Singh <vijay_bsingh@yahoo.co.in>
> To: rti_india@yahoogroups.com
> Sent: Fri, 27 August, 2010 9:42:05 AM
> Subject: Re: [rti_india] Re: Another Major Threat to RTI Applicants- "Notice of CONTEMPT PROCEEDINGS BY C
>
>
------------------------------------
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