Uttarakhand Commissioner Follow-up Response
Dear Sri Kejriwal,
Thanks for your communication of the 24th instant. Sorry for this delayed response as I was away from hqs.
That there exist certain grey areas as well as some overlap in the Act, about that there hasn’t been any doubt at all. However, like all enactments of first generation, especially a statute with clear emphasis on ‘practical’ solutions for any unforseen hurdles in its implementation, both the Commissions and the Commissioners had their jobs cut out for them. This is precisely one of the areas where ones’ own experience of quasi-judicial work handling was expected to be applied. The fact that there are different interpretations about a particular provision ought to be taken note of and as the entire exercise is subject to a judicial review the right course would be to wait for that kind of resolution and not adjudicate extra-juridically, as some are prone to. Of course, one is always welcome to interpret it the way one wishes to. It has verily been said that the Indian jurisprudence is ‘interpretational’ i.e the law being the majority interpretation of a given law. This course is yet to be traversed fully, in so far as RTI Act is considered, as it is yet early days, as they say.
Those, especially the Commissions, who could see that this Act deserved to be tackled in a multi-pronged way, and not purely as mere ‘court cases’ to be decided in courts, looked at the larger picture. In this context I would like to separately send you all the literature which was systematically developed to address these various dimensions of both i.e. ‘the supply side’ as well as ‘the demand side’. That the PIOs deserved to be attended to immediately led me to attempt a Handbook for the PIOs, first in English way back in 1907, followed in Hindi, contextualising Uttarakhand’s own experience, would prove the point. This issue of so-called ‘overlap’ has been adressed in the Chapter dealing with Complaints and Appeals and an attempt has also been made to differentiate between the two Appeals i.e. one under 19(1) and the Appeal proper under section 19(3). If you would care to go through Chapter 9 on Complaints, Appeals and Penalties, the way this Commission has handled section 18 and 19, may become clearer ( p 141 – 164 ). What might interest you is to go through how this Commission has ‘graded various kinds of Complaints’, which may come a Commission’s way. When one grades the Complaints, one is trying to grade them from the point of view of separating the ‘logistics’ from the substantive, the latter deserving action under section 18(2). Even this grading of Complaints could be an interesting point of discussion !
Then this Commissio has distinguished between the so-called Appeal under section 19(1) and the regular one, supported by a regular set of Rules notified by the State govet. This Commission very strongly holds that this 19(1) mechanism is not only a crucial stage of this Act but also recomendes that all out effort need to be made, in the larger interest of the aplicants and end of the RTI Act in mind, to gear up the entire buraucracy.
Going by the overall frame work of the existing Act ( which need not be tinkered with for at least another 5 years, till we unanimously agree as to the areas which really ought to be made more clear or stronger in favour of transparency and accountability ) the emphasis on improving the First Appeal mechanism must receive a very high priority as this would cover the level of bureaucracy which so far has remained either indfferent or unaffected. Uttarakhand High Court has even directed the State Govt to inform it as to how many First Appeal Officers are the Secretaries or the Principal Secretaries of the Govt, as the PAs have by and large nominated relatively junior officers and not covered the higher levels of the bureaucracy. Improving First Appeal mechanism is required immediately on many counts, apart from the fact that those who have been nominated First Appeal Officers generally have had no experience of dealing with quasi-judicial cases.
I am happy to learn that you have appreciated the need of including ‘assessment of First Appelate mechanism’, in you study next year.
This Commission believes that no objective assessment of implementation of RTI Act, including this present one, is possible unless you have a fair idea what has been happening at this stage i.e. end of 4 years of the RTI Act notification. I hope you appreciate that ’remanding back’ a case also serves the purpose of ensuring that an application made under the RTI Act does get considered by the First Appeal Officer, as directed by a Commission, and it actually opens up two options for the appellant i.e. a Complaint under section 18, as well as a second appeal under section 19(3). There is no overlap in such cases, as such non-compliances could be taken up either as a Complaint or a second appeal.
My views, which were also Commission’s views as early as 2007, are covered in the Hnadbook for the PIOs and ceratinly our understanding of the Act has further improved during the past two years.
Coming to a few points you have made in your communication, my replies are as follows:
( a ) You will kindly appreciate that I am in no position to explain as to why in a single Commission two Commissioners were interpreting a particular provision differently. Uttarakhand Commission,as you may be aware, continues to be a single member Commission. This in itself, I may like to add, is subject to two different interpretations. Notwithstanding this fact as many as four Commissions remain single member Commission, even after four years of the RTI Act. All I may venture to say at this stage is had this been the case in Uttarakhand, certainly we would have made an effort to ensure that there is a single interpretation of a particular provision. Certainly this should not be difficult to achieve. Yet another issue which is engaging attention of some is the issue of ‘constituting benches’ in the Commission vrs there being no express provision to do so,
( b ) The Draft report and Commission’s response has already been released to the media, as this Commission does every Saturday, as a practice to engage all stake-holders, including the press and media. This Commission has no problem at all if its reply of 22nd October 2009 ( N0 5188/CIC/2009) and your reply to the same, and even this rejoinder is included on your website and a healthy debate is initiated on the same. Please go ahead and do kindly moderate it in such a manner that useful outputs come out of it. This Commission, as is its practice, would also release all relevant exchanges which are of importance from the point of view of advancing the understanding of the RTI Act to the local press and media, which in turn would also be helpful in expanding the arena of the intended public debate,
( c ) In case you have not received copies of the External Review Report and the Action Plan for Improving First Appeals, sent though courier service, additional copies are being ordered. In addition a copy each of 23 other publications which have been brought out by this Commission during the past four years are also being despatch. All these publications have also been sent to all Information Commissions of the country and many of them have ordered additional copies for their own state. We believe that various aspects of RTI implementation deserve to be covered through suitable publications, so that all public authorities are aware of their importance and incorporate them in their day to day handling.
( d ) ” Pro-Disclosure ” word has been discussed and how UIC has been dealing with the so-called ‘overlap’, from the very beginning, has also been included in the Handbook. How the Secretariat interprets it is entirely up to it and this Commission has already expressed its difference of opinion througnh its previous response.
( e ) Incidently, while this Commission would not like to be included in any competition, as what is does is also subject to a judicial review, it would be quite willing to contribute towards any exercise which further strengthens and improves the ‘practical regime’ which is ultimately proposed to be put in place to achieve the ends of the RTI Act.
An effective RTI mechanism is the soul of ‘good-governance’ and a lot still remains to be done and we all have to work towards that supreme goal in a co-operative and collaborative manner.
I would like to assure you of an active participation by UIC wherever and in whatever way it may be required,
With warm regards,
RS Tolia
Dehra Dun
p.s: Also, see: Uttarakhand Information Commission responds to our Report and Our Response to Uttarakhand Commission
