Is penalty under RTI Act sufficient enough to achieve the compliance of orders? Is prosecution possible for information denial? Read on to find out the answers
The name of the public authority is Women and Child Welfare! The problem is the stopping of ‘old age pension’ of an eligible poor woman. The Public Information Officer does not inform the public. When CIC ordered to inform, none cared to do so. A pension-less old woman is being dragged by Delhi Government to all levels of litigation including High Court by Welfare Department, just for information!
It’s a challenge to the very existence of the RTI in National Capital Region of Delhi. Is there any legal remedy if public authority persistently refuses to give information to a citizen? Is penalty under RTI Act sufficient enough to achieve the compliance of orders? Is prosecution possible for information denial?
This article is an attempt to answer above based on my hearing of second appeal by a pensioner Sumitra Devi in 2014-15. The inhuman face of the babus and the governance and the pathetic condition of the pensioners are revealed in this episode. It also reveals that besides accountability and transparency, the basic right to life is hanging in balance.
A sixty five years old lady, Sumitra Devi, was surviving on pension from the department of Women & Child Development (WCD)/ Social Welfare of the Delhi Government, till it was stopped from April 2012. Rupees 4500 was paid last on 6-3-2012 (i.e., 3 months pension). She filed an RTI request on 7.6.2013. The Public Information Officer (PIO) did not give complete information. After she filed second appeal before Central Information Commission (CIC), she received the order of First Appellate Authority (FAA) directing PIO to provide complete information in 10 days. It was not complied with.
As per law, the public authority has to designate a senior officer as First Appellate Authority [Section 19(1)], who is superior to PIO. He has proximity with the CPIO in understanding the nature of information – whether the information could be given or not and even redress the grievance if any. He is a quasi judicial authority who can direct the information to be given, but does not have power to impose penalty for noncompliance of his order. PIO can seek time or clarification or file an appeal to CIC, if direction to disclose is illegal. The FAA’s order will become final and mandatory, if PIO does not file appeal. On the other hand, if appellant got a favourable order, he has no cause to go to CIC, except complaining for non-compliance. Non-compliance of FAA order is a serious defiance of RTI Act and may even amount to disobedience to his own senior officer. Under section 20, if the PIO establishes reasonable cause in refusing the information, he can escape the penalty.
Driving the RTI applicants to the CIC because of not implementation of the FAA order is against the provisions of RTI Act and a violation of fundamental rights enumerated in the Constitution. The CIC has to implement objectives of the RTI Act by deciding the legal issues of disclosure or withholding. This institution cannot be reduced to an execution forum for implementing order of FAA. Refusing to give information in response to RTI application can be excused if there is a reasonable cause (as per Section 20), but defiance of the FAA order can never be excused.
Policy or any decision regarding pension scheme has to be voluntarily disclosed with reasons, as per Section 4 (1)(d) of RTI Act. The WCD was obligated to inform pensioner about its decision to stop her pension due to change in their policy which required pensioners to shift their account from post offices to banks. If the department had provided complete information about its decision, it would have enabled her to comply with the requirements of the new policy or challenge for unreasonability.
Sumitra stated that she is extremely poor, old and wholly dependent on the pension. Sec 19 (8)(b) of the RTI Act empowers CIC to compensate. She sought compensation for the hardship in the offices.
The order is that WCD has to inform the appellant within 15 days when they are going to pay all the dues of pension (estimated as Rs 1500 x 29 months = Rs 43,500) or whatever is due with simple interest and a token compensation of Rs. 5,000 for stopping pension for no fault of pensioner without any information, besides informing about the number of pensions stopped and put in place a mechanism to continue payment of pension until account is shifted, and not stop paying pension.
Sumitra’s struggle did not end with this. The WCD did not care to comply with the orders of the CIC and the FAA. In response to a show cause notice for non compliance, Mrs. Saroj Rawat, Deputy Director (FAS) contended Sumitra has not shifted account to banks and hence they could not pay pension. She claimed that a wide publicity through print, radio media, and camps in different localities in Delhi made everyone aware of the requirement to shift their account. She also contended that she was given prolonged 2 years to shift their account, three camps were organized in Mahur Vihar, where Sumitra resided and she was not even found at home when officials visited. In June 2013 Sumitra filed RTI application. The Deputy Director of WCD says her pension account was deleted and now to get pension she has to apply afresh. She ruled out payment of arrears of pension. She also stated that instead of running behind NGO and waiting for date of hearing before the Commission, she should have approached directly the office. In fact, Sumitra had approached, but there was no response.
The old-age pension is a welfare scheme of the Government intended to prevent starvation for want of money. There is no fundamental right to pension, but once State found her eligible to receive pension, its discontinuation, without proper reason violates her right to life. Pension rule is that the pension attaches to her use and cannot abate until her death. Being alive without improved financial sources is her eligibility to get pension continuously. It is the responsibility of respondent authority to inform her, see that she noticed the change of policy. In this case she filed an RTI request, still not responded.
I asked the officer whether she knew that appellant opened bank account before the expiry of two years time, she said ‘yes’. When I asked, ‘Can she do anything now to pay arrears and restart pension?’, she said it was impossible. It appears to be more an issue of ego or intolerance to a ‘right’- based approach of the pensioners. If woman officer in Women & Child Officer lack human concern, what can law do?
The issue before was non-compliance of the CIC order to inform the appellant about the restoration and the payment of arrears. The public authority neither has regret nor are they ready to restore pension, rather determined not to revive it. Imposition of penalty of Rs 25,000 was inevitable. I have also warned that non-compliance of this order would attract three sections of IPC – s166 one year jail for disobeyance of law by public servant with an intent to cause injury, s187 six months jail for omission to assist the public authority when bound by law, and s 188 six months jail for disobedience to order duly promulgated by a public servant.
If a criminal court imposes penalty of imprisonment or death punishment, the department of police has to implement it. If a civil court grants compensation, there is possibility of filing an execution petition, in which the court will compel the judgment debtor to pay. The Supreme Court and High Court have contempt powers to enforce their orders; still most of them are left unimplemented until the contempt proceedings are initiated.
How to get the order of the Central or State Information Commission implemented is a complex issue. The Right to Information Act is an access facilitating legislation without penal powers. It is neither penal law nor civil law to provide damages. However, the Commissioner can impose penalty under Section 20 of RTI Act or award compensation [S 19(8)(b)]. This power is very limited. If the penalty is not paid by the concerned PIO (Public Information Officer), the CIC can again initiate proceedings under s20. Nothing else is provided in RTI Act. Then other laws have to be used to enforce the order, which includes the prosecution. It is reported the order is still not implemented and the concerned department is approaching the High Court.
Question remains, is it proper, moral, legal and constitutional for a public authority (state) to spend its might and public money to fight an old pensioner to deny her information on stoppage? How can a pensioner fight costly legal battle? Why not prosecution is a measure for defiance of law.
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