State of Right to Information in Assam
This a humble effort to present briefly the state of the Right to Information
in Assam with particular reference to the situation in Barak valley, southern
part of Assam comprising of the districts of Cachar, Karimganj and Hailakandi.
Although the law regarding Right to Information is fairly unequivocal in India
providing the right to a broad range of information to the citizens and a
mechanism for expeditious enforcement of this right it is still a rare
phenomenon that a citizen gets information as he seeks within the timeframe
stipulated under the Right to Information Act, 2005. It is feared that the law
is strangulated slowly in its implementation by applying various tactics
ranging from feigning ignorance, insensitivity, apathy, misinterpretation of
law to temptation, intimidation, hooliganism, implication in false charges etc.
According to a sample survey conducted recently by Barak Human Rights
Protection Committee, 93% of those applicants interviewed told that they did
not get any response from the Public Information Officer within 30 days of the
receipt of the application as laid down in section 7 (1) of the Act. 86 % of
such applicants do not pursue the matter any further. Remaining applicants
(14%) either file complaints with the Assam State Information Commission or
prefer appeal to an officer higher in rank to the PIO in the same public
authority. In the former case, the SIC transfers the applications under section
6 (3) in almost all cases to either the PIO or the Appellate Authority of the
concerned public authority. In case where an appeal is preferred to the
Appellate Authority the appellants get responses, according to the said survey
report, in just 45% of the cases. 73 % of those who do not get response from
the Appellate Authority do not make the Second Appeal. In most of the cases
where the second appeal are made the SIC without hearing the case itself
forwards the petition to the Appellate Authority asking to hear the case giving
a timeframe of usually 30 days.
In cases where the First Appeal is preferred, the SIC transfers the
Applications to either the PIO or the Appellate Authority whether in the
complaint stage or in the second appeal stage, the red-tapism starts
invariably. The Appellate Authority or the PIO writes letters to other officers
requesting them to supply the information within a specific time limit, in most
cases it is 30 days, as he is to furnish them to the applicant with intimation
to the applicant. The time limit gets passed and another set of such letters is
issued providing another time limit. In the process a period of six months to
one year is elapsed.
Meanwhile another unofficial process starts vigorously which involves both
temptation and intimidation. 96% of those applicants, who went through this
stage and interviewed in the said survey, stated that they faced both
temptation and intimidation in one or the other form.
In this regard, communication of Dr. K M Baharul Islam, Chairman and CEO of
South Asian Regional Development Gateway in Guwahati and a public spirited
person hailing from Karimganj, Assam, deserves to be quoted in some length:
“Read your email. I had the chance to represent a case in SIC Assam from my
area. Though the SIC was very categorically given the verdict in front of all
the parties imposing the highest penalty on the earring officer, it was an
utter shock when I saw the decision on the website that inserts a 'penalty
confirmation' hearing at a later date on 3/6/08 !!
And, on 3/6/08 he has become too apologetic and as expected got the penalty
waived!! Look what signal it will gave to the other officers that you may do
anything but later by giving apology you may get away.
This officer says he was ignorant, whereas time and again for almost 2 years he
made the applicant a mental torture, thought shown various provisions of the
the RTI Act...public protests, news paper reports all these but he was still
'ignorant' of the provision.
Even regarding compliance he did not give the documents "authenticated' by him
but called the applicant at night on a Sunday to his quarter and with force got
the 'sign' of receipts of the documents. An FIR was filed against him after
this incident. But as he was present alone at the time of rehearing he just
showed the receipts to the SIC Assam and gave an impression that like a good
guy who has supplied all the information.
On the side line, I contacted friend of mine who is an MLA and a member of the
Public Accounts Committee where all the reports of this particular Hariyali
project was submitted. You will not believe how much money has been embezzled
off from this project with fictitious names of works, beneficiaries etc. No
wonder that the Officer did not want to give details information to the public..
This is a very sorry state of affairs. Within moments of taking this case in
hand to represent the applicant in SIC hearing I got threatening calls from
"SULFA" ...look at the nexus. Police is now investigating the case and my usual
security cover (As Head of a Foreign Mission) has now been increased...So much
so for a RTI case.
On the introspective side, I found many times the RTI applicants are also very
ignorant of the basic provisions, unnecessarily complicate things without
'asserting' their rights...jump to sign on dotted lines...fears any petty
officials sitting in a govt. office ...."Sir" them all the time...and make it
very difficult to support their cases as they accept / sign many things under
pressure and then start crying 'foul'.” (Emphasis his)
In another case, of which I have first hand knowledge, members of a local
community organization named Kishan Bikash Samity is facing grave criminal
charges falsely. Sahidul haque Laskar, secretary of Kishan Bikash samity,
submitted an application to the PIO of the office of the Block Development
Officer, Banskandi Development Block on 9 May 2007 seeking information
regarding the implementation of the 11th Finance Commission Award, 12th Finance
Commission Award, Indira Avash Yojna and Tara Pump and Ring Well schemes
undertaken in the different Gaon Panchayats of the block. But he did not
receive any information. Again on 22 June 2007 he filed first Appeal petition
to the BDO of the Block, as he is designated as the first appellate authority
under the RTI Act, 2005 asking him to furnish the information as he had not
received the same. But when he did not receive any information he submitted a
petition before the Assam SIC on 31 July 2007 and the SIC transferred the same
on 27 August 20007 to the Chief Executive Officer, Cachar Zilla Parishad for
furnishing the information. Mr. Laskar sent another petition to the SIC on 18
September 2007 as a reminder to his letter dated 31 July 2007. Then he sent
another petition to the SIC vide his letter dated 18 January 2008 informing the
SIC that on receipt of the transferred petition from the SIC the CEO, Zilla
Parisahd, Cachar vide her letter dated 10 October 2007 directed the BDO,
Banskandi Development Block to attend her office on 15 November 2007. On the
other hand, that the PIO of the Block transferred his petition to each of the
Gaon Panchayat Secretaries under the Block on 1 August 2007. Then the BDO
issued another letter to each of the Secretaries of the Gaon Panchayat asking
them to furnish the information to him on or before 30 November 2007. The CEO
once again issued another letter dated 29 October 2007 to the BDO asking him to
attend her office with all the relevant documents on 15 November 2007. The BDO
issued a letter dated 26 November 2007 to each of the GP Secretaries to furnish
information within 7 days of the receipt of the letter.
Eventually almost after seven months of tribulation some information were
furnished to the applicant. But most of these were incorrect, incomplete and
misleading. Hence he appealed to the SIC vide his letter dated 18 January 2008
for directing the BDO to furnish complete and correct information. It was also
stated that the applicant did not receive any information regarding the Tara
Pumps and the Ring Wells from the BDO. Moreover, in the list of beneficiaries
under the IAY scheme, the father’s name of any of the beneficiaries was not
mentioned making it difficult for him to ascertain whether the lists furnished
to him were correct or not. Further it was prayed that penalties as per the
provisions of the Act may be imposed on the erring officers.
Mr. Laskar confided in me that before submission of appeal to the SIC on 31
July 2007 many persons allegedly on behalf of the said Block Development
Officer approached him with offer of handsome rewards in the form of cash or
kind. After submission of the said appeal the attitude of these persons turned
upside down. They started to intimidate the applicant. The threat meted out to
him included that of prosecution, arrest, harassment of relatives and physical
assault, injury and even death.
The SIC fixed 3 May 2008 for hearing first but did not take hearing on view of
the absence of the respondents. The next date was fixed on 17 June 2008. A
false FIR was registered under section 143, 447, 341, 353, 383, 379 and 487 of
the Indian penal Code, 1860 vide Lakhipur Police Station Case No. 148/08
against 5 members of Kishan Bikash Samity and 30 other unidentified persons of
the locality. With the excuse of arresting those unidentified persons, police
raided houses of the members of Kishan Bikash Samity and their sympathisers and
harassed the inmates. Mr. Sahidul Haque Laskar applied for pre-arrest bail in
the Gauhati High Court apprehending arrest though he was not named in the FIR.
High Court granted him pre-arrest bail vide B A No. 2447 of 2008. The High
Court accepted that the ground for apprehension of arrest is the date of
hearing on 17 July 2008 before the SIC and mentioned in the bail order that
bail should be granted so as he can appear before the SIC on that day
Hearing was held in the absence of the respondents. As requested I accompanied
the applicant and presented the case before the SIC on his behalf. During my
oral submission the State Information Commissioner Mr. B K Gohain asked for the
reasons for seeking such voluminous information. When I replied that the
organization of the applicant wants to hold a Public Hearing or Social Audit of
the works of Panchayati Raj System in his Development Block Area he repeatedly
told me that this is “unauthorized”!!
The SIC ignored the provisions of section 6 (3) of the Right to Information
Act, 2005 regarding information relating to Tara Pumps and Ring Wells sought
for by the applicant. The said section of law provides that “where an
application is made to a public authority requesting for an information,—(i)
which is held by another public authority; or (ii) the subject matter of which
is more closely connected with the functions of another public authority, the
public authority, to which such application is made, shall transfer the
application or such part of it as may be appropriate to that other public
authority and inform the applicant immediately about such transfer: Provided
that the transfer of an application pursuant to this sub-section shall be made
as soon as practicable but in no case later than five days from the date of
receipt of the application”. The SIC directed after more than seven month of
filing the application “the CEO, Zilla Parishad and the BDO of Banskandi
Development Block to furnish information relating to Tara Pumps and Ring wells
to the complainant within 30 days of the date of this order if the information
was available with them. In case it is not available, they should inform the
complainant as to the public authority which implements the schemes”.
The SIC admitted that the information furnished were incomplete and misleading
and “direct(ed) the BDO, Banskandi Development Block to instruct the
Secretaries of the Gaon Panchayats under his jurisdiction to allow the
complainant to inspect the records containing the names of the beneficiaries
under the IAY scheme and to take notes of the fathers’ names of the
beneficiaries under the IAY scheme which should be certified by the Secretaries
of the Panchayats. This should be completed within 30 days from today”. But SIC
also praised the public authorities for furnishing such information stating
that “it was seen by the Commission that the Secretaries of the GPs had taken
pains to get the lists of the beneficiaries under these schemes copied
electronically inspite of their limited resources which is commendable.” The
Act in section 4 (1) (a) lays down that ‘every public authority shall maintain
all its records duly catalogued and indexed in a manner and the form which
facilitates the right to information under this Act and ensure that all records
that are appropriate to be computerised are, within a reasonable time and
subject to availability of resources, computerised and connected through a
network all over the country on different systems so that access to such
records is facilitated”. It is now nearly three years after the Act came into
force and still copying names electronically after seven months of filing
application is a commendable work!!
There is a perception that the Right to Information Act, 2005 is stronger and
more effective than the earlier versions of the law because it has teeth in the
form of penalty clause [section 20 (1)] which lays down that “where the Central
Information Commission or the State Information Commission, as the case may be,
at the time of deciding any complaint or appeal is of the opinion that the
Central Public Information Officer or the State Public Information Officer, as
the case may be, has, without any reasonable cause, refused to receive an
application for information or has not furnished information within the time
specified under sub-section (1) of section 7 or malafidely denied the request
for information or knowingly given incorrect, incomplete or misleading
information or destroyed information which was the subject of the request or
obstructed in any manner in furnishing the information, it shall impose a
penalty of two hundred and fifty rupees each day till application is received
or information is furnished, so however, the total amount of such penalty shall
not exceed twenty-five thousand rupees: Provided that the Central Public
Information Officer or the State Public Information Officer, as the case may
be, shall be given a reasonable opportunity of being heard before any penalty
is imposed on him: Provided further that the burden of proving that he acted
reasonably and diligently shall be on the Central Public Information Officer or
the State Public Information Officer, as the case may be.” But contrary to the
law, it seems that where the PIO is not present in the hearing of an appeal
against him despite service of notice it is the duty of the SIC to take his
burden on its own shoulder and let off the delinquent!! So, it is seen that the
teeth of this Act also can not bite. It is an undisputed universally recognized
fact that without sanction a law is not effective and cannot serve its purpose.
The survey referred to above cites that only 8% of the applicants who seek
information under the RTI Act, 2005 eventually get information and other 92%
have to give up and incur financial and other types of loss. Is the RTI is
slowly strangulated in Assam before it can even cross its infancy?
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