Posted in Opinion

RTI: A grossly misused tool in the hands of CPIO

An RTI, or the Right to Information Act, 2005 is undoubtedly one of the best tools in maintaining the transparency and accountability among the governing and the governed. The mission of this act clearly objectifies and commits to providing factual information, reliable data with an authentic source. The Preamble puts a cherry on the cake by reading it very loud and clear “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, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.”

The RTI act is a powerful tool to safeguard the interest and faith of the citizen in the economy and the system, but unfortunately, the way RTI is responding to the applicants is a matter of severe concern and great disappointment. It will not be a blunder to say that ‘Yes, RTI is a grossly misused tool’ and the authorities who are responsible for its smooth flow are the root cause of this problem.

  1. Mainly, it’s the attitude of CPIO, very pessimist towards their work. CPIO, instead of providing information tries to deny it with the provisions under section 8 of the Act. CPIO usually denies the application stating the reason for third party information u/s 8(1)(j) which reads as “information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information”. There is a need to understand the difference between personal and public information of the third party. The commission in its various orders issued the show cause notice to CPIOs and asked them to prove, how the concerned third party information is the private information, and how that very general information of contextual party is going to harm him. It has been observed that either CPIOs are very protective towards the records or they are not willing to give the information to the public. Commission’s order in case number CIC/SH/A/2016/001055 is a precedent for this issue.
  2. Another reason is the delay in transferring the application to the concerned department. If an officer is not the informing authority towards an application then there is a situation of delay in forwarding that paper to the relevant table. This leads to the imposition of the highest degree of penalty upon the authorities. It has been observed that CPIOs never felt it important to record the transfer of the application to their colleagues, for example, attaching a letter or taking the signature for the transferring of the document to the concerned officer might be a proper solution to this problem. Following points can be considered for this issue: CIC/EPFOG/A/2017/173925:
    1. CPIO, if forwards an application for information then he must write on a formal dated letter, which will show his attentive attitude and active effort.
    2. The first appellate authority should entertain the case more sincerely and must analyze the case with the intention to provide information to the applicant.
    3. CPIO should be informed and trained about the manner to furnish the response to an RTI application.
    4. There must be provisions for the penalty on first appellate authority for responsible and sincere working.
    5. Assisting officer should assist the CPIO more responsibly and quickly, else penalty may go on him too.
    6. If the information is tough or large enough to draft then CPIO can suggest an inspection to the applicant.

      There is the need to strengthen the transparency of files and records and bring parallel to act’s section 4(1)(a).

  3. The never-ending problems include the basic loopholes as well. CPIO lacks basic writing skills. There is an immediate need to train the CPIOs. They should follow the basic writing skills when replying to an application. There are instances when CPIO forgot to mention the date in the application or a subject on the application is either not clear or not added. This practice not only confuses the citizen but also troubles the commission to determine the exact date sheet of the case.
  4. The Role of assisting authority is vital in helping the CPIO. Many a time, it is the assisting officer or the concerned officer who fails to help the CPIO in furnishing the information. As per the provision of Section 5(4), the assisting officer acts in the capacity of assisting CPIO and he has all the relevant duties and rights to furnish the information. Case number CIC/EPFOG/A/2017/173925 is based on the same issue. Not to forget that if the assisting officer lacks the efforts then the penalty can be imposed on him also.
  5. CPIO, sometimes, excuses that they are unable to submit the reply as there is more work on their shoulders and this an additional charge of CPIO disables them to work properly on any of the position. The gravity of this excuse cannot be ignored as it may be possible that the overloaded work pressure does not allow the CPIO to deal with the applications attentively. There is a need to study this issue and to understand the depth as up to where does this effect.
  6. Sometimes the summoned officer is represented by another officer, especially in the case of transfer or retirement. This causes the delay in the order of commission as the summoned CPIO is actually absent and he is the actual party who was involved on the prima facie basis. Presiding CPIO must be instructed that if they receive the notice on the behalf of summoned CPIO then it is their duty to forward it to them and keep the option of his own representation as to the last resort because as per the precedents it may be possible that if facts and circumstances turn out to be rude then the representative can be fined.
  7. A CPIO should interpret the application and try to furnish the information. What happens is that CPIO also plays this tactic to deny the application stating an error in the application. Section 5(3) of the RTI Act, a CPIO or SPIO has to render reasonable assistance to the person seeking the information if required. As per the orders of the Commission the CPIO should try to talk the applicant and sort out the matter as conveniently as possible. The same fundamental was observed and ordered by the commission in the case number CIC/POSTS/A/2017/125738.
  8. One of the biggest turning points in the RTI cases is that CPIO initially deny furnishing the information sought by the applicant on whatsoever ground but when they held answerable to the show-cause notice issued to them the commission then they provide the information with immediate effect. This attitude in CPIOs is very discouraging because not everybody files an appeal. This is trouble not limited up to applicants only, this levies the unnecessary burden on the commission also, especially as those cases which are in less of judicial mind or legal issue or any real problem. The commission was set up with the motive to ensure the fast redressal of case but such practices depress the motive behind the formulation of this RTI Act. Case number CIC/EPFOG/A/2017/151493 is one of the cases dealing with the same issue.

All are these instances when CPIO brought the misfortune for the RTI Act. The promise delivered by the preamble remains undelivered and the tool gets depleted because of such corrupt activities. Section 26(1)(d) of the RTI reads it very clearly “train Central Public Information Officers or State Public Information Officers, as the case may be, of public authorities and produce relevant training materials for use by the public authorities themselves.”

It is important to ensure the workshops for the training and assessment of the CPIOs so that the improper working situation and this level of unprofessional behavior can be avoided. These kinds of activities not only cause a problem to the applicants but also attract a penalty over CPIOs.

The author has the field experience of being an intern with Prof. M.S. Acharyulu, Central Information Commissioner of India, CIC, Delhi. He has worked multiple times with the CIC.


ABOUT THE AUTHOR

Anchit Jain

IMG_20181005_221141_802

Anchit Jain is pursuing law from the ICFAI University Dehradun. He is a third-year law student in B.B.A. LL.B (Hons.). He is interested in ADR, RTI and Consumer Laws. Debating, Dramatics and Chess are the hobbies he carries with him.

Posted in Opinion

Intervention of Supreme Court in Religious Matters: A Debate Against the Motion

Well, what will be the consequences if the Supreme Court passes a judgment restricting the Digambar Jain Monks from practising the nudity or the Hindu Naga Sadhus from travelling anywhere without any cloth?

Section 294 of Indian Penal Code, 1860 restricts the obscenity in public place by calling it an annoyance to others. But at the very same time, the Constitution of India under Article 26 allows the citizen to manage its own religious matters. Now, the same constitution in its Article 13 also promises that laws inconsistent with or in derogation of fundamental rights shall to a certain extent, be declared as Void. When we analyse this legal triangle, this can be understood that fundamental rights are higher than other statutory laws and nobody can stop one from practising them; and that is why we have the full liberty to practice and manage our religious rights without the intervention of any institution or body and that’s a principle held sacrosanct within the Indian constitutional framework.

But yes, in spite of all the rules and principles, the Supreme Court and its cousins, ‘The High Courts’, tried to intervene in the religious matters – and they have passed orders and judgments to that effect also. The judgements have no doubt been went on to be referred to as landmark ones, but the consequences and implications of the judgements have been more significant (and ‘landmark’) than the judgements themselves, interestingly!

In the year 2015, the Hon’ble Rajasthan High Court in the case of Nikhil Soni V. Union of India[1] declared the Jain process of achieving salvation ‘The Santhara’ as illegal and declared it as equal to suicide. Later, the judgment raised silent protests all across the globe from the Jain community and the followers went on ‘silent marches’ in their respective cities. The unacceptability was not from the end of society only, but it was also seconded by the democrats and bureaucrats as well. The judgment was widely criticized and was believed that the judicial mind was not applied.

The bench was apparently ignorant of the historical beliefs and the reasoning behind it. When the matter was appealed in the Apex Court, the judgment was reversed and a stay was imposed. This incident showed that the judgment was a landmark one, but the response of society to it was more than just a milestone – that religious interference is not acceptable by society.

The alteration in the religious process will not allow a religion to be religious anymore. Religion works on faith. Court works on the judicial mind. In order to justify the faith, the mind will be lost in the oblivion, and judgments will no more be justified. And anything which is unjustified is something unacceptable for the society. Can a law still be effective when it’s not at all acceptable to the very society it intends to control?

A very recent example can be taken of the case of Indian Young Lawyers Association & Ors. V. The State of Kerala & Ors[2], better known as the Sabrimala Temple Case. The judgment of the case has given the women’s a right to enter into the temples but at the same time, it has questioned the fundamental belief of the Lord Ayyappa himself. Lord Ayyappa, according to local beliefs, is considered a lord because he practised celibacy – the determination brought him the stature of a God. He distanced himself from women. That is why if women really believe in him then they must not go to him or not made her viewing to him. Their attention to him will disrespect his principles. Staying far from him is the absolute faith for women. This is what the scripts say. Now, once again the Supreme Court’s judicial mind equated the entry of women to men but attracted the hatred against the judgment nationwide.

Now, the matter is under review petition as the whole of society is protesting against this judgment. That is why I say ‘Judicial mind cannot go with faith’. Ironically, the ratio of judgment was 4:1, 4 males and 1 female, the only lady judge in the bench Justice Indu Malhotra agreed that women must not enter into Sabrimala temple because she understood the gravity of this nuisance. She quoted “To entertain PILs challenging religious practices followed by any group, sect or denomination could cause serious damage to the constitutional and secular fabric of this country”. And the reasoning behind this given by her in the judgment is the ‘applicability of Article 25’.

Going a little back, we come to the case of Shayara Bano V. Union of India[3]. The SC held Triple Talaq unconstitutional. Now it is important to understand that the concept of Talaq-Ul-Biddat was introduced for the betterment of society itself. To resolve the disputed marriage for the sake of the troubled couples in an efficient way was the objective of this system. But again, the Supreme Court applied its judicial mind and as a consequence, the step was struck down. But still, if I quote the records then the Islamic Women are also protesting against this decision as the Hon’ble Congressman from Hyderabad Mr. Owaisi quoted this statement in the Lok Sabha himself.

Do we still think that SC will be able to pass a practical judgment which will bring tomorrow when Shankaracharyas will be appointed democratically? Will there be any possibility that the biases on the basis of different grounds in religious matters will come to an end through the judgments?

  • Jains do not allow women to touch idols during religious ceremonies.
  • Hazi Ali Dargah allows women in the tomb of Pir Hazi Ali Shah Bhukhari but only in December.
  • Patbausi Satra Temple in Assam does not allow menstruating women.
  • Lord Kartikey Temple of Haryana does not allow women.
  • Nizamuddin Dargah has certain restrictions for women.
  • Shree Padmanbhaswamy Temple has certain attire for women.
  • Jama Masjid Delhi does not allow women after sunset.
  • Ranakpur Temple Rajasthan does not allow menstruating temple.
  • In Kashi Vishwanath, only hindus are allowed.
  • In Puri temple, only hindus are allowed.
  • In Bhairvi Temple, men are not allowed.
  • This is a very small list of instances which are happening across the nation and the judgments won’t be able to do anything instead of hurting societal faith, religious beliefs and the mythical concepts. We cannot apply Law Everywhere.

This does not mean that Sati Pratha or Johar can be resumed, those were evil tactics and were also stopped by society but yes, SC never adjudicated that matter. Faith can be countered by faith only. Our constitution is about 70 years old, our laws are made by colonial rulers who followed west in their culture. Those laws cannot go with our society because we are not practitioners of westernization. The discipline behind the laws does not match with the roots of our nation.

The law derives from society, society follow morals and religion tells us about morality. Laws are the results of holy scripts and these legal bodies cannot interfere with the religious matters.

There are other conflicts left to deal with like UCC, Section 66A, CBI and etc. but intervention in religious matters will only raise chaos because the judicial mind cannot go with faith.

[1] Civil Writ Petition No. 7414/2006. Decided by Sunil Ambwani, C.J. and Veerender Singh Siradhana, J.

[2] Writ Petition (Civil) No. 373 Of 2006

[3] Writ Petition (C) No. 118 of 2016


ABOUT THE AUTHOR

Anchit Jain

IMG_20181005_221141_802

Anchit Jain is pursuing law from the ICFAI University Dehradun. He is a third-year law student in B.B.A. LL.B (Hons.). He is interested in ADR, RTI and Consumer Laws. Debating, Dramatics and Chess are the hobbies he carries with him.