Key Note Address on Right to Information

(Milap Choraria)
Respected Luminaries and eminent personalities having come here from far and wide places across the seas, at the initiative of our esteemed friends like Thiru T. P. Radhakrishananji and his all the friends in the 5th Pillar, for discussing on a very important subject i. e. Right to Information as a vehicle to bring democracy at the door steps of every concerned citizen, irrespective of the fact that how high or low one might be.

Before going into the mechanism for the effective implementation of the Right to Information Act, I would like to take this opportunity to urge that it would be in the fitness of things, that if we first try to look into the history of the British Rule in India, which will help us to know as to why the Right to Know has become so essential a tool to translate our democratic system into a reality. There used to be a time, when it was proudly said that the Sun never sets in the British Empire. The Official Secrets Act or some other equivalent to this Act, used to be in vogue in all those colonies, which were governed by the Britishers, with a view firmly root the British Rule and bring the people inhabiting there under strict control, to ward off any imminent danger of unrest, if there might be any. Now, when the Britishers decided to pull out from their prized colonies in the name of giving freedom to them, the Official Secrets Act, in all those colonies turned into sovereign States, including India, was made to stay surreptitiously in the name of protecting the ‘steel frame’ for an efficient administrative machinery. This later on was started to be misused for ulterior ends, and thus got degenerated into an effective tool of corrupt practices for satisfying the easy whims and fancies of the politicians, in league with the bureaucratic machinery as well as those running the monopoly houses and involved in the production of consumer goods. After all what the corruption is? Corruption is nothing, but a form of tribute paid in negotiation of power, which in turn leads to the creation of an inefficient machinery of the implementing and administrative structure, and is protected by the two undemocratic laws i.e. the Officials Secrets Act and ‘without any appropriate rules and guidelines’ withholding of the permission to prosecute the corrupt public servants and now which is going to be extended even to cover the retired bureaucrats as well. Money moves from those, who need some thing, to those who have a momentary advantage. The powerful extract their share of wealth from the system having been conferred with a right to rule.

The Officials Secrets Act provides a stumbling road block in the functioning of a democratic and transparent system, where the real rulers are the citizens. Therefore, it is important that the real rulers be well informed about the functioning of the public authorities to enable them to hold the governments and their instrumentalities, accountable to the citizenry and to contain the practice of corruption through transparent and accountable working of every public authority. After independence, the continuation of the Official Secrets Act, readily provided a handy tool as an inbuilt cover of protection to the wrong doings in the entire system and as a result, day by day, the demon of corruption continued to grow manifold so much so that now it has reduced the democracy and limited it at the level of the elections. We have thus inadvertently converted those who should have been our representatives, into our rulers. We tolerate their whimsicalities and bow and scrape at every pronouncement of theirs’ and give every politician, however lowly, the right to put on a red siren on their Car and holds us up for hours. Thus the people having suffered by the corrupt practices in their day to day dealing with the government functionaries, has led to serious frustrations in their minds up to this level that they have now started rating the British Rule with the present system of the governance which we are calling as democratic system of the governance. People now started calling it as a worst form of the governance. Thus every honest person started crying that a practical regime of right to information for citizens to secure access to information under the control of all the public authorities only can save this country, from those having the reins of powers in their hands who are the wrong doers, themselves. It may not be out of context to mention that even the Supreme Court has also given it seal of approval to this concept through its various Judgments.

In this regard, it must be born in mind and should be well understood by every public authority that the Right to Information Act does not create any new right for the citizens. It only operationalises, rather provides an effective mechanism to the already existing fundamental right to free speech and ex-pression under Article 19(1)(a) of the Constitution of India, as held by the Supreme Court of India, through various Judgments, in which the right to know is implicit, subject to the reasonable restrictions under Article 19(2) of the Constitution of India. One could seek information earlier too by filing a writ petition. The Right to Information Act has made a lot of difference, so much so that now a citizen can hopefully proceed expeditiously under a statutory procedure, provided the public authorities as well as the Information Commissioners do not hesitate in showing slackness and or inhibition in performing their onerous functions in right earnest and in the true sprit in the interpretation of the Article 19(1)(a) and 19(2) of the Constitution of India, as laid down by the Supreme Court of India which has ultimately resulted in bringing this Act on the Statute Book.

We have seen and experienced that the most of the distinguished personalities, who have been elevated to take up the responsibility of the office of the Information Commissioners have not been able to shed their preset mindsets ingrained during their long stint of their bureaucratic career. However, it is also important that simultaneously we should also try to go into the mindset of the citizenry to understand as to how and in what manner they in practice are using the provisions of this Right to Information Act. It is important, because by and large and of-course with a few exceptions no doubt, it is the very mindset of our bureaucratic machinery which is there to provide a big hindrance and is not prepared to divulge the requisite information in the initial stages and hence with all the skills at their command gained during their long tenure, they try to take recourse on one plea or the other, to deny the requisite Information, or even under the garb of giving wrong interpretations of the law. For instance, they often misuse the wrong interpretation of the alleged fiduciary relationship to extend the cover of protection of the wrong doings of the office functionaries or even some times they even go to the length of taking recourse to false claims that the documents are not available with them.

Therefore, it is imperative that the prospective Information seekers, are duly equipped by orienting themselves to develop their own understanding with the necessary skills to enable them to get through the hindrances in collecting the information, by outwitting the skills of those who are sitting in Public Authority. Hence, as a first step, it is necessary that they firmly decide upon the nature of the informations that are required by them, and also about the possibility of as to what information could be denied by the Public Authority, on one or the other pretext. Thereafter, the second step would be that they submit the application in such a manner that the public authority has no way to deny the existence of respective information (documents) in their store. Therefore, it is also important that one must be well conversant with the various provisions of the Act along with the various threads of interpretations thereof, so that the same could be challenged, if need be. We should avoid asking for the supply of a host of information in one go. This also provides an easy excuse to public authority for the denial of the Information(s) sought. Therefore, it is advisable that we priortise the information that is needed, one by one and accordingly make the respective applications separately. We should also keep in mind, as stated earlier, that our first attempt should be to get the confirmation of the existence of the documents with the public authority, so that in future they may not be in such a position as to deny the very existence of the same. No doubt, this could be a time taking process as well as a costly one. However, as against giving the scope to the public authority to deny the same on the pretext of being not available with them, the aforesaid procedure would be a positive bargain. Please bear in mind, that once a public authority refuses to supply the Information saying that it is not available with them, then no court can enforce them to contradict their earlier such claim, even though they might have said so falsely.

Friends, whatever I have said is based on the long experiences I have had and with the aforesaid strategy, when I filed about 800 applications under the RTI Act, a majority of them were able to bear positive results. To further explain the same, I seek your very kind permission again for my indulgence in citing some very rare examples, out of my own experiences.

(1) I applied before the Election Commission of India, to supply the photocopy of my Petition dated 20th March, 1996. Any one may wonder, that why I sought information of my own Petition? But this strategy worked. They refused the existence of the same, but after their denial when I supplied the photocopies of the same, as well as of the acknowledgement receipt, the Election Commission was compelled to admit the existence of the my petition, and supplied the photocopy of the same, mentioning the number of the respective file. After having received the respective file number, I filed applications for the file notings and other documents, which the Election Commission had to supply, under the direction of Central Information Commission. Thus the information received from the Election Commission, gave me strength to claim that the Affidavit, requiring the disclosure of information, regarding criminal cases, which is now mandated upon all the intending candidates to submit along with their candidature form, was only the result of my innovative suggestions that were made through the aforesaid Petition dated 20.3.1996 .

(2) Similarly, one Kolkata Land Mafia had encroached upon a large chunk of the Railway Land belonging to the Eastern Railways and grabbed the same by merging it with his own land. In pursuance of the grabbing act, half of the aforesaid Railway Land was used for construction of the multistoried buildings. In order to further seal the grabbing act he subsequently with object to escape from any future action against such illegal use of the Railway land on which the construction was made, he got an agreement illegally executed, in criminal connivance, with the respective senior Railway Officials, without saying anything about the said railway land on which the construction had already taken place. I raised this issue from day one before the Railway, Central Bureau of Investigation and Central Vigilance Commission, but found no action from anywhere, as you know in such cases the Land Mafias have very close Nexus with those who are most powerful in the corridors of power and or in league with such politicians. After the enactment of the Right to Information Act, by taking recourse to the strategy stated above, I could retrieve a large number of the documents from the Eastern Railway, including the photocopies of the respective agreement executed by and between the Railway and the Companies of the said Land Mafia, which is a solid proof of the fact that the said agreement was executed under gratification with the Senior Railway Personnel to protect the aforesaid half of the encroached Railway Land which was used in construction of the multistoried buildings. Even after supplying the aforesaid Information, the Eastern Railway was not prepared to admit the fact that still there is some Railway Land, which is under the possession of the said land Mafia, as encroachment. When I created a pressure by filing a number of applications seeking different informations, which could have justified the above fact, to escape from the responsibility to admit such truth, the Railways took recourse of shelter by asking the State Government to let them know, whether there is any part of the respective Railway Land is under any encroachment or not? However, when the matter reached the Central Information Commission, and the Hon’ble Information Commissioner Shri O. P. Kejriwal during the hearing of the case No.CIC/OK/A/2006/00249 & 00408, on 3rd January, 2007, in the very presence of Shri Parashuram Singh, Chief Engineer and Ex-PIO and Shri S.N. Mukherji, then Additional General Manager & Appellate Authority, directed the Railway ‘to state clearly whether there was any encroachment on the plot of land which is under dispute.’, while the Railways’ response before the Commission was that ‘there was no information concerning this on the file and hence could not supply the relevant information’. The result was that it was natural for the Commission to feel and observe that ‘felt that there was, prima facie, an element of corruption and the role of anti-social elements in the whole case’, and directed the Railways to get the plot of land and the encroachment, if any, measured by any reliable agency and supply this information to me within two months’ time. Accordingly after the survey made by the Railways, it was clear that still a large size of the Railway Land is under encroachment of the said land Mafia.

(3) In 2003, my Writ Petition was refused to be registered by the Supreme Court Registry, by misusing and misquoting the Supreme Court Rules, amended in 1997. I applied for a certified copy of the file noting by which such amendment had taken place. The Supreme Court CPIO denied the supply of the Information claiming that the file noting is exempted under fiduciary relationship between the President of India and the Chief Justice of India. I filed Appeal, on the interalia ground that President of India and Chief Justice of India are constitutional functionaries, and hence the requisite information cannot be deemed to be exempted under the fiduciary relationship between them. I submitted a ‘Note’ detailing definitions, prevailing world wide, regarding the ‘fiduciary relationship’. The Appellate Authority was in full agreement with my arguments and hence I could get the entire file notings from the respective file, justifying that refusal to register my Writ Petition was a matter of criminal misconduct. Now, I have submitted my complaint before the Chief Justice of India that the aforesaid refusal to register my Writ Petition was a matter of criminal misconduct on the part of the respective Supreme Court Employees. The matter is pending before Hon’ble CJI.

(4) I have submitted a large number of complaints before the Income Tax Authorities, CBI and CVC against the use of the power generated through black money, by the Kolkata Land Mafia, but to my utter dismay, I found that it resulted to no-where, since the Land Mafia had very close Nexus with one of the most powerful politicians of the country. Immediately, after the enactment of the RTI Act, taking recourse to the same, I wanted to know that what actions were taken by the Income Tax Authorities, on some of my complaints. And you would be surprised to note that for the first time, the Red and Scarlet Ball was seen emerging in the West, the Income Tax Department was directed by the Central Information Commission to disclose the requisitioned Information. This decision of CIC is cited in the Website of the Income Tax Department and also mentioned in the Books recently published on RTI Act. However, from the information received by me this was evident that in 1996, a raid was conducted by the Income Tax Department, and tentatively black money to tune of Rs.13 Crores was found. However, from the Enquiry Reports this was also evident that the respective enquiry reports were made in consultation and in league with the raided party. As in my complaints, I had simply mentioned about the use of the black money to the tune of around more than Rs.100 Crores, which perhaps turned out to be more than a few thousand Crores, therefore, in league with the raided party, care was taken by the Income Tax Department that important persons of the Group of the Land Mafia, their Companies and relations were spared from the Raids. Most surprisingly, as per the aforesaid enquiry reports, the Sale Prices of the shops of one of the projects were claimed to have been sold between Rs.800 and Rs.1,000 per sft. While according to my information the Sale Price that was actually realized was around Rs.5,000 per sft. The aforesaid Market Project was built upon the Land pertaining to the Kolkata Municipal Corporation. As such I also sought the same information from the Kolkata Municipal Corporation, and got a list of some 147 Shops whose Sale Price was stated to be somewhere between Rs.2,200 and Rs.3,500. The sales of these shops were made in favour of the Companies of the alleged financiers for the aforesaid project as per Enquiry Report supplied by the Income Tax Department, for which they had already made advance payment, even before the project was started. Logically, from the aforesaid Information, so received, my charges of the Sale Prices of the Shops stood vindicated.

(5) As a matter of the fact, under the RTI Act, the Income Tax Returns are exempted. However, if one is involved activities against the interest of the public at large and or in criminal activities, he/she forfeits the right of the exemption under Section 8(1) of the RTI Act. Keeping this in view, I sought Certified Copies of the Income Tax Returns and other enclosures, relating to the members of the aforesaid group of the Land Mafia. The Hon’ble Information Commissioner, Shri A N Tiwari, was pleased to pass analogous order directing 12 Chief Commissioners of the Income Tax and others to revisit and hear the matter through videoconferencing, making a mention of my claims in his order interalia in the language like that: “several press clippings, letters writing and representations made by complainant to several high dignitaries bringing to their notice the improprieties involved in certain transactions which listed therein, considered to be proof positive of the inaction by the several public authorities in acting fast protecting State revenues in spite of being warned by the complainant not once but several times about tax evasion by the 3rd parties. This was sufficient reason to disclose all the requested information in public interest, regardless of it attracting any exemption under Section 8(1) of RTI Act., and that the income tax assessment details in respect of a particular firm by the officers of the public authority, contained prima-facie proof that there was gross dereliction of duty by the officers of the Central Board of Direct Taxes as well as other officers of the Income Tax Department in discharging their function in the matter of income tax assessment of the third parties, who were responsible for dealing in huge volumes of black money.”

In the end, I would like to place on record my full cooperation and assistance, in case any one is interested in the matter of Right to Information. They are always welcome to get in touch with me through “5th Pillar”. I will try to put my head to suggest as to what could be the remedy in the related matter. Sir with this Note, here I close my presentation with my sincere thanks and gratitude for having given me this opportunity to share my views and thoughts with the leading lights in the field of social activism. I feel honored.

Thank you all.