Mr.Jagadanand State Information Commissioner should stop
spreading his rank illiteracy about RTI Act
If a layman fails to correctly interpret a provision of law, it is he who alone shall suffer on its account; but if the failure is that of a statutory office-holder, then he shall not only appear a buffoon in the eyes of the law-knowing public, but also prove a great disaster to the fate of the concerned law, its myriad users and above all the statutory body itself, of which he is an integral part. If anybody in Odisha badly needs to imbibe this age-old, wholesome lesson, he is none else than Mr.Jagadanand State Information Commissioner himself.
This presumption of the author is not a figment of his wily imagination, but squarely built on a close reading of the incoherent, erratic rumblings of Mr. Commissioner himself in course of an orchestrated interview as it appeared in Cuttack edition of Oriya daily 'Sambad' dated 13 August 2011.
In course of the said interview, Mr. Commissioner wearing an exulted air of overconfidence about his wisdom and achievement, happened to pass some statements, which, unwittingly though, exhibited his rank ignorance and skewed perception on RTI Act. While several instances can be culled from the said media story to prove the point, a single such stuff, especially the most material one from among them is taken up here for further elucidation.
Responding to the question whether the Commission has been endowed with adequate penal powers, Mr. Commissioner observed inter alia that the Commission, though empowered to order penalty and compensation in some respects, is however powerless against any person who violates the orders of the Commission. Granted that the concerned interviewer has correctly reproduced what Mr. Commissioner expounded before him, there are only two alternate surmises left before us. Either Mr. Commissioner himself has not cared to go through the various provisions dealing with penal powers with which he is armed under the RTI Act, or he deliberately wants to project a weakling image of the Commission out of some dubious agenda known to him best.
As regards the kind of penal powers which Mr. Commissioner ruefully thinks are absent from RTI Act, he ought to have mindfully read Section 20 (2) of the Act, which authorizes the Commission to penalize a defaulter PIO with disciplinary action under the service rules applicable to him, on the ground of his 'persistent' failure. And the expression 'persistent' failure means that the complaint against a defaulter PIO has come to the notice of the Commission for the 2nd, 3rd or 4th time and so on, and to square up with the repeated lapse on the part of the concerned PIO, the Commission is to award 'disciplinary action' (such as dismissal, suspension, transfer, demotion etc), which is more severe a punishment than the pecuniary penalty. Again, Section 19(8) (c) arms the Commission with a general power "to impose any of the penalties provided under this Act" against any defaulting entity, the ambit of which is not limited to PIOs covered under Section 20 only, but includes the 1st Appellate Officer or even the head of a Public Authority.
It won't be out of place here to mention that the Central Information Commission has on a number of occasions exercised such penal powers against officers other than PIOs/APIOs on the grounds of non-compliance of its orders or decisions. Besides the above, the Commission while enquiring into any Complaint is equipped with the sweeping powers of a Civil Court, whereby it can summon any person for eliciting evidence or examination of witness. In the event of a person so summoned refusing to appear before the Commission, the latter as per the Section 32 of CPC 1908 has the power to order his arrest, attachment of his property, imposition of a fine or in default of payment of fine, committing him to the civil prison. Moreover, Mr. Commissioner seems also to be ignorant of Orissa RTI Rules 2005, where the Rule 9 (Penalties) stipulates that if a PIO fails to pay the penalty within 30 days, the same shall be recovered from his salary. Again, the Rule 13 (Realization of penalties or damages) stipulates that if a person defaults in payment of any penalty or damage within the stipulated period, it can be realized from the said person 'as arrears of land revenue', which again involves arrest, attachment of his property or civil imprisonment.
The basic question arises, has Mr. Commissioner ever exercised the above types of non-pecuniary penal powers against any of the persistent defaulters of RTI Act? The answer is an emphatic no. Had he exercised any such powers, the Annual Reports prepared by the Commission on RTI status in the State should have reflected it. Then again, like the proverbial frog of the well, to whom the universe was in no way bigger than the well, our State Commissioner has carefully insulated himself from the rest of RTI world across the country. Otherwise, he could have seen and realized to his satisfaction, how could the Central Information Commission ultimately prevail over the Ministry of Personnel, Pension and Public Grievances, GoI (national level nodal agency for RTI) in respect of the controversy around the definition of 'file'to include 'file notings' or not? Or even, how could CIC prevail over the Chief Justice of Supreme Court in respect of the controversy over the disclosure of property list of Judges? Or still, how could the CIC prevail over Ministry of Home Affairs, GoI in respect of latter's refusal to disclose information relating to Netaji's death? As Mr. Commissioner himself might have observed from such cases, the CIC never relied only on pecuniary penalty to enforce its decisions against the above mentioned authorities at highest level. What the CIC rather did was to issue warning after warning to the recalcitrant authorities to comply with the letter and spirit of its orders at the earliest. And all the exchanges between the CIC and defiant public authorities took place in the public domain itself, leading to building up of a public pressure on the dissenting public authorities to fall in line with the CIC orders sooner or later.
Now, let Mr. Commissioner himself say, did he ever exercise his penal power for disciplinary action against any PIO/APIO on the ground of their persistent default or his general penal powers against the head or other officers of public authorities on account of their defiance of orders/ decisions of OSIC? Besides, has he taken up any issue with any public authority under State Government for non-compliance of any provision of RTI Act or non-compliance of the order/ decision of the Commission? In the above mentioned interview, Mr. Commissioner inter alia bemoans the reluctance of the public authorities in making necessary disclosure of suo motu information as per Section 4 (1b) of RTI Act. But, is he really serious about it? He knows pretty well that as per Rule 2(2) of Orissa RTI (Amendment) Rules 2006, every public authority ought to maintain a Register to record the particulars of persons visiting the offices for accessing and inspecting the suo motu information disclosed under Section 4(1b). Mr. Commissioner ought to know that till date most of the offices of the State Government have systematically defied to comply with this mandate. Has he till date penalized any officer on the ground of non-compliance to this Orissa Rule? Leave alone penalization, has he ever adjudicated any case involving this matter or discussed such matter in course of any order or decision? The answer is again an emphatic no.
Mr. Commissioner should therefore do some soul searching as to whether RTI Act has failed him or he has failed the RTI Act? Whether RTI Act is deficient of penal powers against its violators, or an Information Commissioner like Mr.Jagadanand is ignorant and incapable of exercising the penal powers given under RTI Act. Be that as it may, Mr. Commissioner felt no qualms in teaming up with previous Chief Orissa Information Commissioner Mr.D.N.Padhi in penalizing the RTI activists by way of lodging damage/defamation cases against them at the expense of State exchequer. Everybody including Mr. Commissioner was aware that these activists, by way of exercising their freedom of expression, were merely exposing the acts of corruption, misappropriation and misfeasance of the Orissa Information Commission as a whole. The interviewer should have therefore asked Mr. Commissioner about the very provision of RTI Act or for that matter, of any other law, which allowed them to file a damage suit amounting to Rs.1 lakh against two RTI activists ?
Chitta Behera, Cuttack
Dated 14.08.2011
No comments:
Post a Comment