Free Press
Journal: Mumbai: Wednesday, 04 March 2020.
In
a significant change in the manner in which applications under the Right to
Information (RTI) Act are dealt with, which could have serious repercussions
even beyond Maharashtra, two benches of the Maharashtra State Information
Commission have decided to do away with the option of a ‘second appeal’ by an
applicant in case the First Appellate Authority (FAA) gives its decision in
favour of the applicant but the application still does not receive the
information sought.
Instead
of entertaining the option of a second appeal from the applicant in such a
case, the two benches have decided that the appeal will be converted into a
‘complaint’ and the Public Information Officer (PIO) will be penalised in case
they have defaulted under the RTI Act.
These
changes, according to State Chief Information Commissioner Sumit Mullick, have
been prompted by a re-reading of the RTI Act and a Calcutta High Court order of
May 2010 by Sunil Porwal, Information Commissioner, Greater Mumbai bench.
What
set the changes in motion was an internal letter from Porwal to Mullick,
stating that the RTI Act stipulates that a second appeal can be filed only
against a first appeal order. Porwal’s position, in the letter, is that if the
first appeal order is in favour of the applicant, the question of a second
appeal does not arise.
Following
this, over 200 appeals with the Greater Mumbai bench have already been
converted into complaints after securing the consent of the RTI applicants.
If
an applicant does not agree to convert the appeal into a complaint in case the
FAA’s decision was in the applicant’s favour, his or her appeal will be
dismissed.
Maharashtra’s
chief information commissioner, Sumit Mullick, too has started giving fresh
dates after securing the consent of RTI applicants to change their appeals to
complaints.
While
the move may put the PIO in the dock for disciplinary action - a longstanding
demand to make officials more disciplined and the RTI Act more effective - the
move, however, has left some crucial unanswered questions.
In
particular, a Supreme Court order of December 2011, that became a major talking
point, states that `complaints’ and `appeals’ are to be treated differently and
that the information commission cannot direct that information be given when a
`complaint’ is filed, and that it can do so only when an applicant approaches
it through the `appeal’ route.
When
contacted, Porwal, who was aware of the SC order making an important
distinction between an `appeal’ and a `complaint’, refused to comment.
Mullick,
who was not aware of the SC order, said,”I will first go through the order.”
In
the past, a former chief information commissioner used to exercise powers under
the RTI Act and issue orders that information be divulged as part of suo motu
disclosure by a public authority if an applicant came through the`complaint’
route, to ensure that the applicant got the information sought.
However,
with different information commissioners having differing views, serious
concerns have now arisen on whether an applicant will be able to get
information even if the PIO is penalized and disciplinary action is initiated.
Bhaskar
Prabhu, an RTI activist said, “The commission can decide to either hear it as a
complaint or appeal. But the operative part of the commission’s order has to
mention the following why a PIO was penalised or not, that the FAA order was
not complied with, and that the FAA authority should ensure compliance and send
a report of compliance of their order to the commission.
The
Commission cannot just wash its hands off with an applicant not getting
information.”
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