शनिवार, 4 मार्च 2017

Memorandum submitted to Odisha Chief Information Commissioner

Memorandum submitted to Odisha Chief Information Commissioner for bringing reform in RTI regime in Odisha
Dear friends

On 3.3.17, A five-member delegation  of Odisha Soochana Adhikar Abhijan (OSAA)  met Sri Sunil Kumar Mishra, Odisha Chief Information Commissioner  and  submitted memorandum  urging him to  reform RTI regime in Odisha and  brining changes  in functioning of Odisha Information Commission.

The Team Members appraised   newly-appointed Chief Information Commissioner about faulty RTI regime in Odisha like anti-people Odisha RTI Rules, absurd and illegal RTI application form, illegal demand of production of proof of citizenship which is the violation of section 6(2) of the RTI Act, arbitrary introduction of Appeal form and fee etc.  which needs to be withdrawn.  The Commission was requested to exercise his power under section 25 (5) of the RTI Act to direct the State Govt. to bring changes in Odisha RTI Rules and withdraw illegal provision.

The Commission was enlightened   about huge pendency of 7000 cases, slow disposal of cases by the Commission and lacunas in Odisha Information Commission (appeal procedure) Rules, 2006, long delay in sending copy of decision of the cases by the Commission.  RTI Activists requested the Commission  to  take steps for  hearing  atleast 30 cases  per day and disposing  300 cases  in a month by each commission,  cancellation of summer vacation and Puja vacation   illegally enjoyed  by the Commission, providing decision of the commission in Odia language, hearing  setion-4 related  violation cases  by the Commission, hearing of the cases through video-hearing,  giving priority  for hearing of public interest related cases etc. The Commission was also requested that   copy  of decision of the  cases  should be sent to the complainant at the earliest.

Sri Mishra took positive view about concerned expressed by RTI Activists and suggestions made by them. He assured the team  to  bring   changes in Odisha RTI Rules and functioning of the Commission. The Team members are quite hopeful and reposed their faith  on the assurance of the Commission to see better implementation of RTI Act in Odisha

The members of delegation team were Sri Pradip Pradhan, Sri Biswajit Mohanty, Mrs. Sanjukta Panigrahi, Sri Srikant Pakal, Sri Prakash Samantsinghar.

Pradip Pradhan

Test of Memorandum submitted to Odisha Chief Information Commissioner by Odisha Soochana Adhikar Abhijan

Sri Sunil Kumar Mishra                                                                                 Date- 3.3.17
State Chief Information Commissioner
Toshali Bhawan, Satya Nagar

Sub- Recommendation of RTI Activists for reform in RTI regime in Odisha 

Enforcement of RTI Act has completed about eleven  years in Orissa as at national level and in other States/UTs. At the outset, in the name of implementing the Act, Govt. of Orissa unilaterally notified Orissa RTI Rules 2005, which was however strongly opposed by Civil Society Groups who termed it as absurd, illegitimate, and anti-people. Many eminent citizens and national level RTI activists like Mrs. Aruna Ray, Mr. Sailesh Gandhi and Ms. Maja Daruwala of CHRI did also object to quite some provisions of Orissa RTI Rules on the ground of their incongruity with the parent law. Specifically, Mrs.Ray had met the Chief Minister Orissa in Dec 2005 and pressed him to withdraw them at the earliest. Under the mounting pressure from Civil Society Groups both at state and national level, the State Govt. of Orissa on the floor of Assembly in April 2006 announced a bunch of new provisions including reduction of fees on different heads, which was notified in official gazette on 29th May 2006 under the caption ‘Orissa RTI (amendment) Rules, 2006’.

The above amendments, though fair and useful in themselves, didn’t however touch at all on the mainframe of Orissa RTI Rules 2005 (such as a lengthy application form requiring disclosure of personal details and attachment of a copy of voter card, forms and fees for making appeals,  ), which in the opinion of civil society groups was out and out ultra vires the parent Act and required therefore a drastic overhaul. Since then Orissa has remained under the draconian spell of the said Rules, on account of which the implementation of RTI Act continues to suffer badly till today. It has been observed  by  Civil Society Groups that ironically, Orissa Information Commission, though empowered to suggest amendment to any illegitimate feature contained in a State Rule under section 25 of the RTI Act, has displayed  themselves  more enthusiastic to enforce the untenable State Rules than the State Government itself. In the face of such adverse scenario, the Civil Society Organisations and RTI Activists have been constantly  steering  campaign for withdrawal of the main instrument i.e. Orissa RTI Rules 2005 and amendment to two subsidiary instruments i.e. Orissa Information Commission (Appeal Procedure) Rules 2006,   through different forums and activities.

 We   bring to  your notice these issues seeking  suitable direction of the Commission empowered under section 25 (5) of the RTI Act  to Govt. of Odisha  to enforce  the RTI Act in  letter and spirit and bring reform in the functioning of Odisha Information Commission.

1.      Direction  to amend Odisha RTI Rules, 2005

A.     Withdrawal of Application Form
Under Section 6 of the RTI Act, a citizen seeking information is not required to submit his/her   application to the Public information Officer in any particular form. But Orissa RTI Rules has prescribed a compulsory 11-point lengthy and complex application Form, without proper fill-up of which one’s request for information shall not be entertained.   Moreover, the said Form requires an applicant to disclose several of his/her personal information like identity as a citizen, permanent address, and spouse name, which are as such prohibited from disclosure under Section 6(2) of the Act. The Central Govt. has not prescribed any Application Form as such, and some State Governments who have prescribed Forms have not made them compulsory.  The present Form-A of Orissa is simply a burdensome provision for the people of Orissa.  After a lot of protest by RTI Activists,  a high level committee under chairmanship of   Sri Surya Narayan Patro, the then Minister, I and PR Dept. was held on 3.8.2011 for amendment of Odisha RTI Rules. This Committee recommended  for amendment of Application Form.   The Application Form i.e. Form-A imposed by Govt. of Orissa should therefore be withdrawn, and as in the case of Central Government, the citizens should be allowed to make an application under the Act in the manner they like to.

B.     Complete withdrawal of appeal Form and   fees            
There is no provision in RTI Act to prescribe any Form or  Fee for making an appeal, first or second. The Central Govt. and many other State Governments have therefore not prescribed any appeal form or fee. But the Govt. of Orissa, in clear violation of the Act has prescribed both appeal form (Form D for 1st Appeal and Form E for 2nd Appeal) and appeal fees (Rs.20/- for 1st appeal and Rs.25/- for 2nd appeal).  Besides the Orissa Rules make it compulsory for such  appeal fees to be deposited only through Court Fee Stamps, to procure which is a great difficulty for the common citizens. So the State Government should be directed to abolish both appeal form and appeal fees so imposed.

C.     Withdrawal of provision for  submission of proof of Citizenship
 The provision made under the Orissa Rules-2005( vide –Rule 4)  that the Applicant  has to satisfy  the PIO about his/her identity  before his/her application  is considered, is ultravires  the parent Act and needs to be withdrawn. The Section 6 (2) of the RTI Act  categorically says that  an applicant “ shall not be required  to give any reason  for requesting  the information or  any other  personal  details  except  those  may be necessary  for contacting him”. It  deserves to be mentioned here that the I and PR Dept.   issued  a circular 
Directing to all Departments to comply order of Calcutta High Court to protect the interest of whistle blowers.

D.     Withdrawal of Form-C 
 The Form –C (Intimation of Rejection) as it stands now   is not only  prohibitive  of people’s right to information, but  also  ultravires  the mother law. It needs to be struck off. The section 7(1) of the RTI Act  says that a request for information can be rejected  for any of reasons  specified  in  Section 8 and 9 only. But the Form-C  in its column  (i)  without specifying  the particular reasons  under the said sections, mentions  just in a blanket, roughshod manner  that it comes under exempted category covered under sections 8 and 9 of the Act. Similarly, the Column (iv)  spaciously  saying that “the information is contained  in published material available to the public  and quoting it  as  a ground for rejection  carries no meaning   for the  citizen  at all. Again, the column (vi)  saying “ The information sought  for is prohibited  as per section  24(4)  of the Act is negatively slanted  against the citizen’s quest for information, since the said section permits  the information relating to  cases of corruption  and human rights violation to be disclosed  albeit  after getting the approval  of the Information Commission. So instead of saying just “no”, the said column might say, “Your application  has been forwarded  to the Information Commission  for their opinion “. The Column (vii)  saying  that “ The information  would cause  unwarranted  invasion of privacy  of any person  is absolutely redundant , since the factor  is covered  under section 8(1j), already taken  care  of by the column (i) mentioned above. Thus  the Form-C is ultravires  the mother Act  for the reasons already shown above.

E.     Withdrawal of provision of submission of proof of Identity
Rule-2 (e) ‘Identity’- The given definition which requires an applicant to show the evidence of his ‘citizenship like an electoral photo identity card, a passport or any other document which can satisfy the authority about the citizenship of the person’ needs to be altogether abolished, as it is ultra vires the parent Act, which under Section  6(2) says inter alia that a citizen is not required to give ‘any other personal details except those that may be necessary for contacting him’.

F. Rule- 4 Procedure to obtain information-
(i) Mode of payment of application fee shouldn’t be confined to only cash or treasury challan. Various modes of payment like IPO, Money Order, Demand Draft and Banker’s Cheque should be allowed in addition to the above two.  

 (ii) The provision that the PIO needs to be ‘satisfied with the identity of the applicant’ before sending his letter of intimation to the applicant in Form-B should be abolished, since it contravenes the above mentioned Section 6(2) of parent Act. Moreover, the PIO in his letter of intimation to the applicant should not only inform ‘the amount of cost for providing information’ but also its detail break-up and mode of calculation along with ‘information concerning his or her right with respect to review the decision as to the amount of fees charged or the form of access provided, including the particulars of the appellate authority, time limit, process and any other form’ as required under Section 7(3) of Act.      

An addition to be made here is that the persons belonging to BPL families should be exempted from all manner of fees towards the cost of information as required under Section-7(5) of Act.  

(iii) The limitation of 15days from the date of receipt by the applicant of PIO’s letter of intimation, within which the applicant is required to deposit the amount towards cost of information should be abolished, and in its place, a limitation of 7 days from the date of the receipt of the application, within which the PIO should send his letter of intimation in Form-B to the applicant, should be inserted.
 2.  Commission to write all decisions and correspondences in Odia language-

Under Section 4(4) of the RTI Act, all proactively disclosed information {section 4(1b)} should be disseminated in local language. The decisions of the Commission as these are in the nature of suo motu disclosures provided under Section 4 of the Act, need to be written and published in Odia language.  Again, it is astonishing  that  the Information Commissioners are making all correspondences with the  semi-literate  Complainants  and appellants of the  State  in English which  creates a lot of hindrance  for the people in following the    letters  and  decisions of the Commission. Moreover, even the English language used by the Commissioners in their orders suffers  from a lot of grammatical and technical errors. The Information Commissioners also lack efficiency   and skill to write the decisions properly.  So it is requested that the Information Commissioners be directed to make all their correspondence and decisions in Odia language, to enable the Odia knowing people to understand them. It deserves to be mentioned here that while adjudicating WP (C) No. 19857/2013, the hon’ble High Court has given direction to State Govt. to appoint Odia translators for office of Odisha Information Commission.  As per the information obtained under RTI, the State Govt. jas already given appointment of Odia translator in the office of Comission.   

3.Summer Vacation and  Puja vacation  Leave taken   by the Commission – an arbitrary and illegal practice.
  It has come to our notice that  the Information Commissioners of the state   use to  suspend hearing of the cases  and  take leave  for days together  terming it as Summer Vacation Leave, Puja Vacation leave and the like.  Taking leave as Summer Vacation or Puja vacation  is nowhere in practice in any office of quasi judicial bodies of the country. As we know, Odisha Information Commission is a quasi-judicial body, unlike the judicial bodies such as High Court or Supreme Court. No other kindred Commissions like Odisha Human Rights Commission, State Commission for Women or even Central Information Commission enjoy such statutory leave. So  we request your esteemed office   to enquire into the matter, issue show cause to the Information Commissioners   and  pending the results of enquiry deduct the dues payable against  the   days of leave   from their monthly salary and allowances.  Such deduction, which is perfectly in tune with the principle of ‘no work, no pay’ would send a right signal to the concerned Commissioners who have taken an illegal and arbitrary leave on their own and have thereby set up a bad precedent. 

4. Amendment of Odisha Information Commission ( appeal procedure ) Rules,2006

A.      Rule-8 (Service of notice by the Commission)
A proviso is to be added here that the first hearing of a Complaint or an Appeal, as the case may be, shall be held within 30 days of its registration, and a notice for the same shall be served by the Commission to the concerned parties within 7 days of its registration, unless the said case is earmarked for the purpose of an enquiry under Section 18(2) of the Act.

Another addition to be made here is that every notice to be so served shall be written in the regional language of the state Oriya, and an English version of the same may be served along with the Oriya version.  

B.     Rule-9 (Personal Presence of the appellant or complainant)   
A proviso shall be made here that in any appeal proceedings the PIO, First Appellate Officer or the representative of the concerned public authority, as the case may be, shall be given only one opportunity to present himself in the hearing for discharging his burden of proof, failing which he shall be held guilty and therefore penalized as per Section 20 of the Act.

C.     Rule-10 (Decision of the Commission)    
An addition is to be made here that the Commission shall hold a maximum of 3 hearings to decide an Appeal or a Complaint, as the case may be, within a maximum period of 90 days from the date of its registration.

The second addition to be made here is that every decision made by the Commission must without -fail mention therein the date of registration of the concerned Appeal or Complaint, as the case may be, along with its consecutive serial number.

D.     Rule-11 (Communication of the decision)       
An addition to be made here is that every decision of the Commission should be communicated to the Appellant or Complainant and as well to the concerned PIO, First Appellate Officer or representative of the Public Authority within 7days from the date on which such decision is announced.

Another addition to be made here is that every notice or decision to be communicated by the Commission to a Complainant or an Appellant, as the case may be, shall be made in the regional language Oriya in addition to the link language English.    

 5. Low disposal of cases
 As per the information obtained through RTI,  on an average an Information Commissioner in Odisha is  disposing only 30 to 35  cases per month, while in contrast Mr. Sailesh Gandhi the Central Information Commissioner and quite some Commissioners in other States are disposing 200 to 300 cases per head per month. Low disposal along with absence of proper hearing by the Commission has led to a massive pendency of about 7000 cases in the office of the Commission.  So, it is recommended to Commission to hear atleast 30 cases per day and dispose atleast 300 cases per month.

6.  Neglect by the Commission towards Section-4 related the cases
 Most of the Public Authorities in the State have not   made voluntary disclosure of information in the manner they should have under Section 4 of RTI Act.  Secondly, though many public authorities have voluntarily disclosed, it has not been updated  since 3 years.  Moreover, the Information Commissioners are not entertaining the complaints by citizens against the negligent public authorities who are found violating Section 4 of RTI Act during last 11 years. Thus the Information Commissioners are not hearing such complaint cases nor directing the concerned Public Authorities to comply with the said provision of the Act. So we urge the Commission to hear section-4 related complaint cases  and issue direction as per the law.

7. Hearing of the cases through video and audio hearing.

In the era of advancement of Information Technology and digitalization,  the State Govt. is adopting e-governance system  to make the administration accessable  to the people.  The Central Information Commission is hearing the cases through video- hearing. Earlier, Odisha Information Commission was hearing the cases through video-conferencing. But it has been stopped.  So we request Commission to start video-hearing and audio-hearing of the cases of the complainant/ appellant.  

 Pradip Pradhan                                                                                                Biswajit Mohanty
State Convener                                                                                                                Core-Committee Member
Odisha Soochana Adhikar Abhijan                                                           OSAA

Sanjukta Panigrahi                                                                                          Srikant Pakal
Core-Committee Member                                                                          Core-Committee Member
OSAA                                                                                                                    OSAA

Prakash Samantsinghar
Core-Committee Member

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