I have been writing for quite some time on the need for institutionalization of Puducherry. As the last stop, at least for now, this article is on one of the most cherished rights in India, the Right to Information. The Right to Information Act that was enacted in 2005 has given citizens a powerful weapon to know what their Government is up to. Several Government fault lines have been identified and projected to the outside world by information collected under the RTI Act, 2005. Interestingly, this article and some of my previous articles have come up with the help of information collected under the Act from various public authorities.
However in my personal experience, I understand that Public Information Officers, who have been entrusted with the responsibility to provide information under the Act, find a way out to escape from divulging material that is self-incriminating. Some of them take the route of ‘exceptions’ provided under the Act and some others take the route of technicalities like mode of payment of information fee, the form of application etc. There are also cases in which the Information Officers say they do not possess information.
In order to provide remedy to the information seeker in such circumstances (except where the Information officer is genuinely entitled by law to take the exception route), the Act provides for appeals. The first appellate authority is usually the Head of the Public Authority concerned. But the Act mandates the Government of India and the Government of States to establish the Central Information Commission and the State Information Commission respectively as Second Appellate Authority and as a Complaint receiving body. This is done so that the Information Officers do not escape their responsibility and to ensure that the Act is implemented in letter and spirit.
Accordingly, the Government of Puducherry established the Puducherry Information Commission to entertain second appeals and receive Complaints against Public Information Officers in the authorities under the control of the Government of Puducherry.
However, a severe blow to the Right to Information of residents of Puducherry came when the Government of Puducherry had to abolish the Information Commission under pressure from the Government of India for unknown reasons.
From the information collected under the Right To Information Act, 2005, I understand that by a letter dated 20.07.2007, without assigning any reason, the Joint Secretary (UT), Ministry of Home Affairs, Government of India, informed Administrative Reforms secretary to Puducherry that the decision to wind up the Puducherry State Information Commission was taken at the level of the Hon’ble Home Minister on 08.06.2007 and thereby directed him to comply with the decision immediately and to send a confirmation to that effect within 10 days. The direction was complied with by passing Government Order G.O. Ms. No. 7/2007/A2ARW and the same was informed to the officer concerned by the Chief Secretary to the Government of Puducherry by another letter dated 31.07.2007.
At this juncture, it is to be seen that the above Government Order passed abolishing the Puducherry Information Commission is illegal and unconstitutional for the following reasons:
1) The Government of Puducherry was well within its Jurisdiction in establishing the Puducherry State Information Commission U/S 15 of the Right To Information Act. Moreover, the provision is a mandatory provision which cannot be infringed upon by the Government;
2) In passing the above Government Order the Government of Puducherry has acted under the dictation of the Government of India without exercising its powers by independently applying its mind. Acting under dictation is clearly violative of well-established principles of administrative law and accordingly illegal;
3) The Government of India has directed the Government of Puducherry to abolish the Puducherry State Information Commission by transgressing the powers of the latter. By a combined reading of Article 239A of the Constitution and the Government of Union Territories Act, 1963, the Government of Puducherry is empowered to establish the Puducherry State Information Commission. The Government of India has therefore abridged the Federal Structure of the Constitution of India which is one of its basic features;
4) The Government of Puducherry has established statutory authorities under provisions of various statutes similar to Section 15 of the Right To Information Act, 2005. Some such authorities established under statutes enacted by the Parliament include Puducherry State Consumer Disputes Redressal Commission, the Labour Courts, Industrial Tribunals etc., Since under the relevant provisions of those statutes, the ‘Government of Puducherry’ has been interpreted to mean ‘State Government’, the expression ‘State Government’ under Section 15 of the Right To Information Act, 2005 shall also be interpreted to mean the Government of Puducherry. This is akin to the well-settled principle of statutory interpretation that similar provisions of law shall be interpreted similarly;
5) It is well settled from the various judgments of the Supreme Court and the High Court of Madras that Puducherry is to be deemed to be ‘State’ for the purpose of statutory institutions. One such case law to cite is Jayendra Saraswati Swamigal Vs. State of Tamil Nadu reported in 2008 (10) SCC 180;
6) There are several public authorities including Government Departments, educational institutions, Government of Puducherry undertakings and statutory institutions established, owned, controlled and substantially financed by the Government of Puducherry like the Puducherry Road Transport Corporation and Women's Commission. It defies logic and law to call the Public Information Officers of these authorities ‘Central Public Information Officers’ and placing them under the Central Information Commission at New Delhi;
7) The Government Order has been passed arbitrarily without assigning reasons. Orders without reasons are liable to be set aside under the Constitutional scheme. According to Supreme Court, arbitrariness is antithetic to fundamental Right to equality as guaranteed under Article 4 of the Constitution of India.
8) The purpose of establishing State Information Commission U/S 15 of the RTI Act, 2005 is defeated as there is no State level Commission to receive the complaints and to entertain appeals against the Public Information officers appointed in the public authorities directly under the control of the Government of Puducherry. Pursuant to the impugned notification, the citizens seeking information from the public authorities directly under the control of the Government of Puducherry have to approach the Central Information Commission to lodge complaints and institute appeal against the decisions of such Public Information Officers. This acts as an impediment to the right to information as guaranteed under Article 19 of the Constitution of India and U/S 3 of the RTI Act, 2005.
The idea of Right to Information is founded on democratic values according to which people who elect their Government know what their Government does. Axing this right does not resonate well with the Constitutional values that we imbibe. Some of my representations seeking to set right the above issue are pending with the Government of Puducherry. If the Government does not act, seeking Court’s intervention will be the only remedy.