Complaint and Appeal under the Right to Information Act, 2005

(By R. Muralidharan, Managing Director, PONTEX & Deputy Registrar (Legal)

 Co-operative Department, Puducherry)

In the absence of a mechanism to ensure compliance of the mandate of the Right to Information Act by the public authorities, simply providing right to the citizens to seek information would be just sham. There is an inbuilt provision in the Act providing the citizen an effective, efficacious, inexpensive and time bound procedure to prefer complaint and appeal against non-disclosure of information or delayed information.  This is, perhaps the only Act which imposes penalty on the Public Information Officer (PIO) for his failure to comply with the time limit.  Two avenues of remedies are provided in the Act – the first appeal before the senior officer of the PIO in the same department and the second appeal before the Central/State Information Commission.  Complaints are filed directly to the Central/State Information Commission, by-passing the first appellate authority.

Complaint

Section 18 of the Right to Information Act, 2005 lays down the powers and functions of Information Commission, while Section 19 of the Act provides for appeals.  These two sections are to be read together.  The first one arises out of a complaint preferred by a citizen directly to the Commission and the other arises out of an appeal filed against the first appellate authority.  The reliefs the Commission could grant as the authority receiving complaints are included in the reliefs the Commission grants while deciding second appeal.  On the first look there appears a mix up of concurrent jurisdiction.  A close look will bring out the correct import.

One of the functions of the Central/State Information Commission is to receive complaints from any person that-

(i) A public authority has not appointed Public Information Officer and the Assistant Public Information Officer and that by reason of which the citizens are deprived of a forum to file applications for information;

(ii) That information asked for is refused;

(iii) That the response or access provided for is inadequate;

(iv) That the fees required to be paid is not reasonable;

(v) That the information furnished is either incorrect or inadequate;

(vi) Any other inadequacy relating to dissemination of information if the Commission is satisfied, it may initiate an enquiry in this regard.

For the purpose of such enquiry the Commission shall have all the powers available under Civil Procedure Code in regard to

(a) Summoning and enforcing the attendance of witnesses;

(b) Requiring discovery and inspection of documents;

(c) Receiving evidence on affidavits;

(d) Requisitioning of any public record;

(e) Issuing of summons and examining witnesses or documents; and

(f) Any other matter which may be prescribed.

The Information Commission may during the inquiry of any complaint under this Act examine any record to which this Act applies which is under the control of the public authority and no such record may be withheld from it on any grounds.  Information/records which are exempted under S. 8 are not covered and hence to them, the Act does not apply.  This is also the case with respect of information in respect of intelligence and security organizations listed in the Second Schedule which are exempt except where corruption or human rights violations are involved.

Appeal

If disposal of applications by the PIO is adverse to the applicant he may within 30 days file an appeal (first appeal) to an officer holding a superior rank.  Animadverting the order of the first appellate authority, the applicant may prefer a further appeal (second appeal) within 90 days to the Central/State Information Commission.  In the first and second appeal, the appellate authorities have power to condone the delay in filing appeal if the applicant therein shows sufficient cause which prevented filing of appeal in time.  In the appeal, the burden of proving that the denial of request is justified lies on the authority which denied the information.  It means that it is for the authorities to prove the existence of the several circumstances envisaged in Ss.8 and 9 to deny the information to the applicant.  This right to file the first and second appeal is available to the third party if the information which is sought to be kept confidential is allowed to be disclosed.

The First Appellate Authority (FAA) is required to dispose of the appeal within 30 days of its receipt.  The period may be extended to 45 days for reasons to be recorded in writing. The FAA can modify the order of the PIO.  In his decision, he may direct the PIO either to disclose the information or endorse the decision of the PIO to withhold the information.  He may also take different grounds for denying the information from those mentioned by the PIO.  The FAA, however, is not empowered to impose any penalty on the PIO.

A second appeal against the decision of the PIO lies before the Central/State Information Commission. The second appeal can also be filed if the first appeal is not decided within the time limit.  No fee is prescribed for filing the appeal before the Information Commission.  Appeal against the decision of the PIO cannot be filed directly with the Commission.  The appellant is required to exhaust his remedy of first appeal.

In its decision, the Information Commission may:

(i) Require the public authority to take such steps as may be necessary to secure compliance with the provisions of the Act;

(ii) Require the public authority to compensate the complainant for any loss or detriment suffered;

(iii) Impose any penalties;

(iv) Reject the application.

The Information Commission has the mandate to ensure that the appellant gets the required information from the public authority, if it does not fall under any exempted category or if the appellant could demonstrate larger public interest in its disclosure.  If the remedy lies elsewhere, no relief could be granted under the Act.

Scope  of  appeal  and  complaint

The Delhi High Court in Union of India v. Central Information Commission & Ors.  (2010 (1) ID 113), explained the scope of appeal before the Second Appellate Authority. Its domain is restricted to subject matters that are appealable before the FAA under S. 19 (1) of the Act. Second Appellate Authority cannot therefore go into the questions which cannot be raised and made subject of appeal before the FAA. As a necessary corollary, the Second Appellate Authority i.e. the Central or the State Information Commissions can examine the decision of the PIO or their failure to decide under S.7(1) or the quantum of cost under  S. 7(3)(a). They can also go into third party rights and interests under S.19(4). Central or the State Information Commissions cannot examine the correctness of the decisions/directions of the Public Authority or the competent authority or the appropriate government under the R.T.I. Act, unless under S. 18 the Central/State Information Commission can take cognizance. The information seeker is however not remediless and where there is a lapse by the competent authority, the public authority or the appropriate government, writ jurisdiction can be invoked. It is always open to a citizen to make a representation to public authority, appropriate government or the competent authority whenever required and on getting an unfavourable response, take recourse to constitutional rights under Article 226/227 of the Constitution of India. In a given case, the Central or the State Information Commissions can recommend to the competent authority, public authority or the appropriate government to exercise their powers but the decision of the competent authority, public authority or the appropriate government cannot be made subject matter of appeal, unless the right has been conferred under S. 18 or 19 of the RTI Act. Central and State Information Commissions have been created under the statute and have to exercise their powers within four corners of the statute. They are not substitute or alternative adjudicators of all legal rights and cannot decide and adjudicate claims and disputes other than matters specified in  Ss. 18 and 19. 

Second  appeal  should  be  decided  within  45 days

The provisions of the Act and Rules do not prescribe any period within which a second appeal under S. 19(3) is to be disposed of. S. 19(6), however, prescribes the period within which appeals under sub-ss.(1) and (2) of S.19 are to be disposed of. Such appeals are to be disposed of within 30 days from the date of receipt thereof or within such extended period not exceeding a total of 45 days from the date of filing thereof, as the case may be, for reasons to be recorded in writing.  A second appeal arises from a decision in a first appeal under S. 19(1), and a first appeal arises from a decision or a failure to give a decision under S.7. The sparkle of a strong strand of speed woven through the sections of the Act is abruptly lost in the second appeal that has been allowed to run wild. This open-ended second appeal scheme is bound to make the S.6 request go totally adrift generating a multi-tier avoidable and unwanted offshoot Court proceedings such as this case.  Keeping in mind the respective maximum periods fixed for deciding a first appeal under S. 19(1) and disposal of a request for obtaining information under S.7, the Calcutta High Court in Akhil Kumar Roy v. The West Bengal Information Commission & Ors. W.P. No. 11933 of 2010, dated 7.7.2010 ruled that the second appellate authority should have decided the second appeal within 45 days from the date of filing thereof.

The  aggrieved  person  can  file  a  complaint  or  move  an  appeal – the  remedies  are concurrent

Once a State Public Information Officer rejects an application for information or refuses to act on such application within the time limit prescribed therefor, the aggrieved information seeker has two remedies under the Act. One of these is to approach the appellate authority under S.19 (1). The other is to bring it to the notice of the State Information Commission by filing a complaint that request for information under the Act has been refused. The refusal may arise out of inaction; it may also arise out of rejection of an application. In case of refusal to give access to information, the statute provides a choice to the information seeker and that in exercise of such choice he approaches the State Information Commission with a complaint. Filing of such complaint is provided for in law and the same having been filed well within 30 days from the date of the order passed by the State Public Information Officer rejecting the application under S.6; the State Information Commission had acted in terms of power conferred by S.18 to enquire into such complaint. It is settled law that if statute provides more than one remedy, the aggrieved person has the right to choose the forum competent to remedy his grievance. A complaint against refusal to furnish information being statutorily recognized, the State Information Commission would be perfectly justified in enquiring into it as part of its duty as mandated by S.18(1) of the Act (Tata Motors Limited & Anr. v. State of West Bengal & Ors. (W.P. No. 1773 of 2008 dated 12.1.2010 - Calcutta H.C.).

Similar view was held by the Kerala High Court in B. Sajikumar vs. The Kerala State Information Commission & Ors. , in W.P. No. 31039/2009 dated 2.11.2009. S. 18 of the Act empowers the State Information Commission to enquire into a complaint that there has been no response to the request to furnish information within the time limit specified under S. 7(1) of the Act. 

Section 7(2) of the Act states that if the information sought is not furnished within the time limit of 30 days, the application should be deemed to have been refused. Therefore by operation of law a deeming fiction is created under which the person seeking information is given the right to file an appeal before the first appellate authority under S. 19 of the Act even though the original authority may not have rejected the application. The mere fact that a person seeking information is entitled to prefer an appeal on the 31st day after his application for information was submitted is not a ground to hold that the State Information Commission is denuded of its power to enquire into a complaint that there has been no response to the request for information or access to information within the time limit of 30 days. It is open to the person seeking information to move the State Information Commission complaining about the inaction of the State Public Information Officer, instead of filing an appeal. The remedies are concurrent and the mere fact that an appeal lies after the expiry of 30 days to the first appellate authority is no ground to hold that the State Information Commission cannot exercise the jurisdiction vested in it under S. 18 of the Act.

Power  of  the  State  Information  Commission  while  dealing  with  complaint  under Section  18  cannot  be  the  same  to  its  power  under  Section 19

In Section 18 there is nothing to show that while dealing with or disposing of a complaint regarding failure of PIO to give a response to a request for information or access to information within the time limit specified under the said Act and as such, the PIO having been deemed to have refused the request for information made by the complainant, the State Information Commission is empowered to pass an order or direction to the PIO for furnishing the information sought by the complainant. The complainant’s grievance is basically regarding the failure of the concerned PIO to give a response to the application for information within the time limit specified in the Act without assigning any reason. In that situation the State Information Commission is not required to consider about applicability or otherwise the provisions of Ss. 8, 9, 10, 24 and Second Schedule of the Act.  Since the PIO had not yet disposed of the said application of the second respondent on merit, the State Information Commission ought not to have considered the question of applicability  or otherwise the provisions of Ss. 8, 9, 10, 24 and Second Schedule of the Act. 

Allowing the appeal, the Division Bench of Gauhati High Court in State of Manipur & Anr. v. The Chief Information Commissioner & Anr. (AIR 2010 Gau. 183 : 2011 (1) ID 251) held that the power of State Information Commission while dealing with a complaint under S. 18 cannot be considered as the same to its power while dealing with a second appeal under S.19.  By disposing of the said complaints the State Information Commission proceeded as if it was dealing with a second appeal and disposing the same on merit.  The State Information Commissioner acted illegally and beyond its jurisdiction in passing the directions.

Views  of  the  Central  Information  Commission

As per the Act, when there is no response from the CPIO within the time specified under S. 7(1) of the Act, it would amount to deemed refusal and the applicant can straightaway approach the Central Information Commission under S.18(1)(c) of the Act. (Mohd. Kasim v. Bharat Refractories Limited, No. 2913/ IC (A)/2008 dated 21.7.2008).

If we read the concerned section (S.18) it does not indicate that a complaint is not maintainable if it has been disposed by PIO and the Appellate Authority. Instead sub-section (1) (e) clearly reads, that the applicant can always approach the State Information Commission or Central Information Commission as the case may be, where the information provided is false, misleading  or incomplete. (Arun Kumar Paswan v. Univesity of Delhi ( CIC /SG/C/2009/000100/2611 dated 2.4.2009).

Need  of  the  hour

From the above discussion one may very well comprehend that the appellant has the choice either to prefer a complaint under S. 18 or resort to appeal under S.19.  However on going through the decisions of the Central Information Commission periodically it may be found that the CIC consistently decides to direct the appellant/complainant to approach the appellate authority and if aggrieved over his decision to come to the Commission by way of second appeal.  In some cases, the complaint is treated as first appeal and remanded to the first appellate authority for disposal in the manner known to law.

Juxtaposing Ss. 18 and 19 it may be seen that a complaint can also be filed in case the PIO does not respond within the time limits specified under the Act or gives incomplete, misleading or false information.  On the very same grounds an appeal is maintainable under S.19.  Filing complaints on the above premises directly to the Commission, when an avenue by way of first appeal is available, certainly overburdens the Commission.  It is but true that the Commission takes time for disposal of the second appeals and complaints.  If the Act is amended in such a way to take away the above two grounds from the purview of complaint it would do more good to the Commission to dispose the second appeals faster.  It also saves the complainant from the trouble of filing complaint in the first instance and thereafter first appeal, on the direction of the Commission.  Thus is has a twin advantage.

It appears that in most of the complaints the grouse is non-furnishing of information or delay in responding or on the quality of information furnished.  The causes, by and large, are the grounds for first appeal.  Before they reach the Commission the FAA can filter them.  The appellant get efficacious and alternative remedy, the Commission can concentrate on real issues.  It is a win-win situation.

Principles of Desuetude 

(By N. Subramaniam, Advocate, High Court of Kerala)

1. Craies' Statute Law states that desuetude is a process by which an Act of Parliament may lose its force without express repeal. It does not, however, consist merely of obsolescence or disuse; there must also be contrary practice, which must be of some duration and general application. Desuetude requires for its operation a very considerable period, not merely of neglect, but of continuing usage of such a character to infer a counter law or establish a quasi-repeal. Lord Denning M.R. in Buckokev Greater London Council (1971 Ch 655 = 1970 (2) All. ER 193)  has a few words about desuetude “It is a fundamental principle of our Constitution, enshrined in the Bill of Rights, that no one, not even the Crown itself, has ‘the power of dispensing with laws or the execution of laws’. But this is subject to some qualification. When a law has become a dead letter, the police need not prosecute, nor need the Magistrates punish. They can give an absolute discharge.”

2. This principle does not appear to have been used so far to hold that any statute has stood repealed because of this process; but the Supreme Court of India has expressed its opinion that this principle could be made applicable to Indian statutes also. According to the Supreme Court, a citizen should know, whether despite a statute having in disuse for long duration and instead a contrary practise being in use, he is still required to act as per “dead letter” and according to Supreme Court; it would advance the cause of justice. The Supreme Court goes further to say that there is need for its implementation, because persons residing in India, who have assured fundamental rights, must be protected from their being prosecuted and punished for violation of a law which has become a “dead letter.” The Supreme Court in ((1995) 3 SCC 434 = AIR 1996 SC 2856 (Municipal Corporation for City of Pune v. Bharat Forge Co. Ltd.) has dealt with this aspect.

3. This principle has already been in vogue in respect of valuation made for different items under Compensation For Tenants’ Improvements Act, 1958. In Table 1 published under S.13(1)(a) of the Act; where the price of 1000 coconuts ranges from ` 130 to ` 380 in various districts; for arecanuts ` 16 to ` 38.75 in various districts, pepper per pound ranges from 0,62 ` to ` 1.59. and price of paddy per para ranges from ` 2-19 to ` 3-30 in various districts. Similar as the rates for costs of cultivating and harvesting of the crop of paddy and cost of planting, protecting a coconut tree, arecanut tree, Jack tree, pepper vine etc. 

4. Adverting to AIR 1964 SC 1179 State of M.P. v. Bhopal Sugar Industries LD1, (AIR 1964 SC 1590 Narottam Kishore Deb Varman v. U.O.I. ((1979) 4 SCC 642), H.H. Shri Swamiji Amar Mutt  v. Commissioner of HRE Dept., ((1984) 1 SCC 222) Motor General Traders v. State of A.P., ((1986) 3 SCC 385) Rattan Anja v. State of Tamil Nadu ((1990) 1 SCC 109) Synthetics and Chemicals Ltd. v. State of U.P., the Supreme Court of India in paragraph 15 of its judgment reported in ((1998) 2 SCC 1) Malpe Viswanath Acharya v. State of Maharashtra has stated that “ a statute which when enacted was justified, may, with the passage of time, become arbitrary, and unreasonable law, should not be unjust to one and give disproportionate benefit to another.”

Check Cheque Cheating

(By S.A. Karim, Advocate, Vanchiyoor, Thiruvananthapuram)

In a cheque there are three parties - drawer, drawee and payee. Payee is the person who receives the cheque amount. Drawee is always a bank. Drawer is the person who draws the cheque. Drawing means writing the amount, date and signature on a cheque. Then only a cheque becomes a valid cheque. Otherwise it is defective one and has no value. In the ordinary parlance, drawing means putting the signature on the right side bottom of a cheque.

Lending and borrowing are the main functions of banks and other financial institutions. They demand proper and sufficient securities for availing loan. Ordinary people is unable to afford proper and sufficient securities. So such people turns to the local and unscrupulous money lenders for their urgent needs. The money lender gives money on signed cheque without writing amount and date and other securities like promissory note and property documents.

Once the borrower fails to repay the loan amount, the lender writes amount of his choice and date and presents the same for encashment. Thus starts criminal case. In almost all such cases, the amount claimed is very very high. At this stage only the borrower understands the gravity and seriousness of the cheque issued without writing amount and date. Several such persons have been ruined beyond repair.

A welfare Government is duty bound to protect the innocent borrowers and prevent the unscrupulous money lenders from their unfair trade practice. In the existing cheque law, writing amount and date need not be in the hand writing of the drawer. It can even be typing. Drawer’s signature presumes the correctness of the amount and date. In case the law insists to write amount and date on the cheque in the drawer’s handwriting, the money lender’s mischief shall be defeated and save lakhs of borrowers.

Double Justice

(By S.A. Karim, Advocate, Thiruvananthapuram)

In our criminal justice system, State is the complainant. Police represents the State. Investigating the case, filing charge sheet, adducing evidence, and making ground for conviction of the accused are the prerogatives of the police. Trial, appeal and revision are the hierarchy of the courts. If the Trial Court is magistrate court, sessions court is the appellate court. High Court is the revisional court. If Trial Court is the sessions court, High Court is the appellate court and Supreme Court the revisional court. It Trial Court convicts the accused, he goes appeal to the appellate court. If the accused is acquitted, the police may go for appeal to the appellate court, where the convicted accused goes. If the accused’s conviction is confirmed in appeal he goes for revision. In case the accused is acquitted in appeal, the police may go for revision in the same court. There is one trial, one appeal and one revision.

The Criminal Procedure Code provides provision for filing private complaint direct to the Court. The Trial Court may acquit or convict the accused. If the accused is convicted, he goes appeal to the appellate court. If the accused is acquitted, the complainant has to go to the High Court with a Special Leave Petition under Section 378(4) of the Code. In a complaint case, accused’s appellate court and complainant’s appellate court are different. Hence, equality before the law or the equal protection of the laws do not work. It is a violation of Article 14 of the Constitution. So, there needs modification in Section 378(4) of the Code to make the appellate court one and the same to the accused and the complainant.

Organ Transplantation and the Law

(By Kaleeswaram Raj, Advocate, High Court of Kerala)

Gist of the paper presented on 30.7.2011 at the National Workshop conducted by Indian Medical Association, Kerala, at I.M.A. Hall, Kochi

1. Statutes can have an ethical foundation. Juvenile Justice Act rests on ethics of Child Rights. The Legal Services Authorities Act rests on the ethics of mediation and conciliation. Abolition of exploitation of children has an intrinsic ethical value. So is the case with resolution of dispute by way of conciliation. Commercial dealings in human organs is per se unethical, according to the Transplantation of Human Organs Act, 1994 (TOHO Act, for short) (See para.2,Statement of Objects and Reasons of TOHO Act, 1994.) . But this itself is a questionable postulate. The arguments in favour of commercial transactions of human organs too have an equal (or more) formidable counter ethical foundation.

2. Demand overweighs supply in transplantation scenario. It so happens despite high success rate in transplantation treatment. India is ranked second (after the United States) in kidney transplantation from live donors. Roughly 3,200 to 3,500 transplantations occur every year. We have experts and expertise. But, non availability of organs, remains as the major obstacle in the life saving ventures. Conventional mindset cannot readily accept Scott Russell who visulised “body as property”.  But even in United States, law treats organs as national assets (Organ Transplantation and Transportation Act.) and not an individual property, capable of being sold or purchased. The “final Rules”(1998) in the United States aim at “equitable allocation of organs” based on “sound medical judgment”.

In US, it is reported that despite the high success rate of 95+ % in organ transplantation, 10 persons die every day due to non obtainment of ‘body parts’.

3. Our options need not be necessarily between the present system of donation on the one hand, and the free market of organs with statutory support, on the other.

There is an option in between - A benevolent statute which encourages donation of organs by taking a pro active role - a motivating statute that explores the possibilities of incentives, compensation, concessions, reservations, etc. A catalytic statute is long over due, which should replace TOHO Act that failed to explore such possibilities. Also there is a need to educate the mass and to make them familiar with the dangers of the orthodox reluctance to part with the ‘parts’ even on death.

4.  TOHO Act creates procedural hurdles as well. Those may act as obstacles to the patient in critical situations. Thus the TOHO Act does violence to the ratio laid down by the Supreme Court of India in Paramananda Katara (AIR 1989 SC 2039) which indicated that no regulations or 'law’ can intervene to avoid/delay the proper and timely discharge of duty of a doctor. TOHO Act, thus doesn’t stand the test of Art.21of the Constitution, dealing with a citizen’s right to life and right to live, as explained by the Supreme Court in Paramananda Katara.

5. A better regulatory legislation may

-- prohibit brokerage or any unethical trade of organs for that matter. Even pricing, distribution and allocations can be strictly subjected to statutory regulations. Penal provisions in the TOHO Act (sections 18,19,20 and 21)could be retained, subject to the new regulatory provisions.

-- create a national organ bank with sufficient resources and donor net work.

-- stipulate concessions, reservations, incentives, welfare schemes etc., for genuine donors.

--  legalize the policy of presumed consent with necessary conditions and regulatory clauses.'

6.  TOHO Act is also a failed legislation. Successful prosecutions are rarely reported, though the violations of the Act often hit the headlines. Reports about ‘kidney rackets’ are not rare in India. Also there are complaints regarding misuse of S.9(3) of the Act by which trades occur in the guise of ‘affection’ or ‘attachment’, which is either not detected or indulged by the authorities under the Act.

7.  Therefore, the TOHO Act needs to be revisited and thoroughly revised in tune with the modern thoughts on ethical marketing practice. An egalitarian approach would ultimately find that both life and death occur to the body only and not to the soul.