NEW DELHI, Mar 17:
Expressing its helplessness in implementing its order bringing six political parties within the purview of the RTI Act, CIC has said it cannot impose any penalty on them as they have not appointed any Central Public Information Officer (CPIO) against whom such an action can be taken by it.
The order given on a complaint of RTI activist Subhash Agrawal and the Association of Democratic Reforms will have far-reaching effect on the writ of the Central Information Commission (CIC) to enforce its orders as bodies declard by it as public authorities may choose to ignore its orders citing this decision.
A Bench of three former bureaucrats — Vijai Sharma, Manjula Parashar and Sharat Sabharwal — passed this order yesterday. All three have applied for the position of Chief Information Commissioner, which has to be decided by a committee comprising the Prime Minister, Leader of Opposition and a Cabinet Minister.
“It is clear that the respondents have not implemented, as public authorities, the directions contained in the Commission’s order. In this light, the provisions for penalty and compensation were examined.
“It is felt that though the respondents have not taken any step towards compliance, the legal position is such that in this case imposition of penalty and award of compensation cannot be considered,” the Bench said in its order.
The Commission has powers of a civil court under Section 18(3) while deciding on complaints to summon and enforcing the attendance of persons (which need not be CPIO) and compel them to give oral or written evidence on oath and to produce the documents or things. It can also use the powers under the Act on “any other matter which may be prescribed”. However, such powers were not exercised by the Bench.
“Being a statutory body, if its orders are not complied, CIC can approach a criminal court under provisions of CrPC and file a complaint that its orders are not being followed. It is true that CIC has limited powers but it can always approach a court to get its orders enforced,” former Chief Information Commissioner A N Tiwari said.
First Chief Information Commissioner Wajahat Habibullah
said CIC should have approached a court under the CrPC to file a complaint that its orders are not being implemented on which the court can issue suitable orders.
Complainant Subhash Agrawal expressed surprise that the Commission rather than summoning the representatives of political parties is expressing helplessness and asking DoPT to fill the legal gaps.
“Even Presidents/Secretaries of political parties could be taken as deemed CPIOs in absence of appointment of CPIOs by defaulting political parties,” Agrawal said.
In its order, the Bench said, “The Commission is not geared to handling situations such as the present instance where the respondents have disengaged from the process. The Commission, having declared the respondents to be public authorities, is unable to get them to function so.”
“This unusual case of willful non-compliance highlights the need to identify the legal gaps and lacunae in the implementation mechanism. An obvious conclusion is that in cases such as this, the Commission is bereft of the tools to get its orders complied with,” it said.
The Bench said the penalty provisions have been made infructuous as there are no CPIOs.
“Penalty can be imposed only on the CPIO, and on no one else, not even the first appellate authority in the event of a default. The prayer made in this case for penalising the non-complying public authorities cannot be considered,” the Commission said.
The Commission said there are, in the law, gaps that need to be addressed, e.G., in the context of action against the public authority for non-compliance with the Commission’s directions under section 19(8) to appoint a CPIO; the silence in section 18 on what to do with the enquiry results; the apparent ambivalence in the linkages between sections 18 and 19(8).
“Other questions are: how does the penalty provision work in the absence of a CPIO; how can the Commission get the respondents to function as public authorities after designating them so; how to provide relief to a complainant unable to file a second appeal in cases where the public authority has not appointed a first appellate authority; the steps required for getting an order implemented; a clearer demarcation of duty with implications for liability, compensation and penalty,” it said.
The Commission said it is reasonable to argue that if there is persistent non-compliance, apart from the CPIO, there must be some assignment of responsibility at the level of the public authority.
The matter is related to the Commission’s order, dated June 3, 2013, in which six political parties — Congress, BJP, NCP, CPI(M), BSP, CPI — were declared to be under the ambit of the RTI Act as they were indirectly funded by the Government through the cheap land and other facilities provided to them.
None of the political parties followed the directives of the Commission. Neither did they challenge in the court nor the law was amended to counter the Commission’s order.
On the issue of taking strict action such as issuing summons, the Commission in its order said Section 18(3) equips the Commission with the powers of a civil court for the purpose of ensuring attendance and evidence in an enquiry.
“In this connection, the complainants said that no real purpose will be served even if the presence of the defaulting parties is ensured in the enquiry as they are unlikely to submit any material other than what has already been given by them,” the Commission said.
It said the matter under discussion is not limited to a one-time disposal of specific complaints and a decision on penalty and compensation.
“The matter goes beyond the complaints in this particular instance as there would be various applications in the pipeline and demands for information under the RTI Act. Hence, the need is for the respondents to set up an operational mechanism as per the Commission’s order of June 3, 2013,” the Bench said.
It cited order of the Andhra Pradesh High Court which had said the Right to Information Act, 2005 is a self-contained enactment and it provides for stringent measures for enforcement of the orders of the authorities for providing information.
“The point…Refers to a situation where the respondents do not engage in the process, and keep away from the hearings. The RTI legislation had come to fruition because of across the board support. It was not expected that the respondents would avoid the proceedings,” it said. (PTI)
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