Convinced that Right to Information Act 2005 was being sabotaged in Maharashtra by Chief State Information Commissioner Dr Suresh Joshi, Member of Parliament Sanjay Nirupam took a delegation of five prominent RTI Activists to meet Chief Minister Ashok Chavan on 29th June. The team met the CM at his Malabar Hill residence and presented a charter of demands for proper implementation of the RTI Act, including the need to appoint State Information Commissioners by a transparent and verifiable selection process.

They urged the government to phase out the current batch of SICs whose selection was based on political patronage and nepotism. They gave a written analysis of improper orders passed by Dr Suresh Joshi, Chief State Information Commissioner of Maharashtra, and complained that he was violating the RTI Act in letter and spirit. Chief Minister Ashok Chavan referred their submissions to the Chief Secretary, and assured that he would look into the matter immediately so the problems were eliminated and RTI was properly implemented.

The delegation led by Mohammed Afzal included G R Vora, Sunil Ahya, Krishnaraj Rao and Ravi Kiran Haldipur – RTI Activists who have been agitating at the State Information Commission since November 2008 for penalties to be imposed on Public Information Officers (PIOs) who unjustifiably deny information to citizens. The charter of demands was submitted on behalf of the ten RTI Activists who were jailed for 48 hours last month on Dr Joshi’s allegations of rioting and trespass.

“Correcting the faulty implementation of RTI Act is a priority area for the UPA government, both at Centre and in the State,” said Sanjay Nirupam after the meeting with the Chief Minister. “I have personally taken up this agenda, and shall follow it up with the Chief Minister and at higher levels,” he added.

The below items may be downloaded from http://www.box.net/shared/kr32jrnntv

1)    Charter of Demands to Govt. of Maharashtra

2)    Analysis of Dr Joshi’s mala fide orders

3)    Photo of Sanjay Nirupam, MP, addressing a gathering of RTI Activists on 30th May 09

4)    Photos of the five activists

__________________________________

Hindustan Times (Mumbai edition) carried the above news on page 6 with the heading, “Remove Info Commissioners: RTI Activists”.

Click here: http://epaper.hindustantimes.com//artMailDisp.aspx?article=01_07_2009_006_010&typ=1&pub=264 

Five Examples with Analysis
of Mandatory Sections of RTI Act 2005
violated by Orders

You may download the below-mentioned orders and analysis in word or pdf format from here: http://www.box.net/shared/go8sxhi4yi

EXAMPLE 1:

Appeal No.2007/1263/02

Shri P.P.Talati, Aderbad, Flat no.43,

34, N.S.Patkar Marg, Mumbai 400 007. .. Appellant

V/s

Appellate Authority & Dist.

Deputy Registrar Coop Societies,

Malhotra House, Mumbai .. Respondents

GROUNDS

The hearing in respect of 2nd appeal filed by Mr. P.P.Talati of Mumbai against the order of District Deputy Registrar dt. 21.3.2006 was heard on 8.10.2007 when the Appellant, Mr. Talati, PIO and Appellate Officer were present.

The PIO by his letter dt. 3.2.2006 has informed the Appellant in response to his application under RTI Act, 2005 that his application has been sent to his Cooperative Society with the directions that the required information should be given to Mr. Talati since the information sought is not available in their office. The intimation of this was given to the Appellant. This was confirmed in the appeal and it has been specifically mentioned that if the Appellant does not receive the information from the Society a complaint to that effect should be made to the Deputy Registrar. During argument the Appellant insisted that he should get the information either from the Deputy Registrar’s office or from the Federation.

Under RTI Act, 2005 if the information is held by another public authority the public authority to which such application is made should transfer the said application to the concerned public authority. In his case the application has been sent by the PIO of Deputy Registrar’s office to the concerned Cooperative Society with the direction to give the information to the Appellant i.e. as per the provisions of the Act. The Act gives the right to the Appellant to get the information but he cannot insist that I must get the information from a particular office. In the instant case if he has not received the information from his Coop. Housing Society he should bring this fact to the notice of the concerned Deputy Registrar who will intervene and see that the required information is given to the Appellant.

ORDER

Appeal is thus disposed off.

(Dr. Suresh V. Joshi)

Chief Information Commissioner

Place: Mumbai.

Date: 9.10.2007

ANALYSIS OF EXAMPLE 1:

Dr Suresh Joshi’s Order is based on a perverse reasoning that transfers the onus of RTI compliance from Dy. Registrar of Cooperatives — a public authority — to the cooperative housing society, which is not a public authority. it absolves the PIO at Dy. Registrar of Cooperatives of responsibility, and passes the buck to nobody in particular, as Cooperative Housing Societies can have no “PIO”.

The correct section applicable is section is 2(f) “information relating to any private body which can be accessed by a public authority under any other law for the time being in force.”

Instead, Dr Joshi invokes Section 6(3) with malafide intent to dilute the responsiility of the Deputy Registrar of Cooperatives.

6(3): “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...”

Summary: This order violates sections 2(f) and 20(1).

EXAMPLE 2:

Appeal No.2007/1363/02

Shri Kishor Totaram Lulla, Abhyankar Complex,

Amrai Road, Sangli 416 416. .. Appellant

V/s

Appellate Officer and Deputy Secretary .. Respondent

Food & Civil Supplies Department, Mantralaya, Mumbai 400 032.

GROUNDS

Shri K.T.Lulla had sought the following information under RTI Act, 2005 on 28.8.2006 from the PIO & Under Secretary, Food & Civil Supplies Department, Mantralaya, Mumbai for the period 2001-2002 to July 2006:

“As per section32(7) of the MVAT Act and 38(6A) of the BST Act, 1959, the amounts forfeited and recovered is to be transferred to the Consumer Protection and Guidance Fund. It is to be utilised for the purpose of Consumer Awareness. In this connection following information may please be given:

i) How much amount is forfeited in every above mentioned year in the State of Maharashtra by the Sales Tax Department. This information may have been received by you from the Commissioner of Sales Tax, Maharashtra State or by the Finance Department

ii) How much amount is transferred in the above mentioned fund in every year.

iii) Details of utilisation of the said fund as per Sec. 32(7)(iii) of MVAT Act and 38(6A)(iii) of the B.S.I.Act;

iv) Copies of guidelines given by State Government in respect of the above.”

The PIO vide letter dt. 15.11.2006 gave the available information to the Appellant but Appellant filed 1st appeal u/s 19(1) with the Appellate Authority, Consumer Protection Department, F&CSD, Mantralaya, Mumbai 32 stating that the PIO has not given the details of utilisation of excess fund. Having not heard anything from the 1st Appellate Officer, the Appellant filed 2nd appeal with this Commission on 2.5.2007 which was heard on 26.9.2007 when the Appellant, Shri Lulla and Shri T.R.Dhaygude and Shri D.M.Nayak, US, F&CSD & Consumer Protection Department, Mantralaya, were present.

At the time of hearing the Appellant stated that the PIO has given incomplete information. The Respondents were directed to give the figures regarding Maharashtra Consumer Protection & Guidance Fund received from the office of the Accountant General, Maharashtra State for the period 2001-2002 to 31.7.2007 within 10 days to the Appellant to which they agreed. This has been complied by the department very next day on 27.9.2007.

ORDER

Appeal is thus disposed off.

(Dr. Suresh V. Joshi)

Chief Information Commissioner

Place: Mumbai. 

Date: 19.10.2007

ANALYSIS of example 2:

Dr Joshi’s Order is bad in law on two counts:

I. DELAY is condoned without application of mind:

Date of Application was 28.8.2006. Date of PIO’s reply was 15.11.2006.

As per Section 7(1), the deadline for reply was 28.9.2006. PIO’s reply was delayed by over 45 days. This eligible to be fined Rs 250x45 = Rs 11,250

Section 7(2) clearly states, “If the PIO fails to give decision on the request for information within the period specified under sub-section (1), the PIO shall be deemed to have refused the request.

Further, Section 19(5) states: In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the PIO who denied the request.

Finally, Section 20(1) states: Where the Information Commission, at the time of deciding any complaint or appeal is of the opinion that the PIO 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 ... it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished...

But as per the Order passed, Dr Joshi neither sought a justification under Section 19(5), nor did he even apply his mind to penalties for delay/denial under Section 20(1).

II. PROVIDING INCOMPLETE INFORMATION is also condoned without application of mind.

The last para of the “grounds” establishes that Dr Joshi upheld the appellant’s contention of incomplete information, which is also punishable under Section 20(1).  But instead of asking the PIO to justify his actions as per section 19(5) and last para of 20(1), Dr Joshi disposes off the appeal without even applying his mind to the mandatory penalty clause.

Summary: This order violates sections 7(2), 19(5) and 20(1).

EXAMPLE 3

Appeal No.2008/3245/02

Shri. Harinarayan S. Mishra

Room No. 2, Bldg. No. 4, Praijat Co-op. Housing. Society,

New MHADA Colony, Sion-Pratiksha Nagar,

Mumbai – 400 022. ..… Appellant

V/s

First Appellate Officer cum Dy. Commissioner of Police,

Zone III, Central Control Office, Bawla Compound,

Dr. B. A. Road, Byculla (E), Mumbai. ….. Respondent

Public Information Officer cum Asst. Commissioner of Police,

Zone III, Central Control Office, Bawla Compound,

Dr. B. A. Road, Byculla (E), Mumbai.

GROUNDS

The Appellant Shri. Harinarayan S. Mishra has made unsigned second appeal on 30.01.2008 to the Commission on the following grounds.

a) The Commission be pleased to direct the concerned person to give the Accidental Death Report (A.D.R.) of Santosh Goswami.

b) The concerned person be punished for not giving the A.D.R. within stipulated period.

c) Disciplinary action pleased be initiated against the concerned person for misguiding the appellant by giving incorrect information.

The hearing of the appeal was arranged on 24.10.2008 in the office of the Commission. At the time of hearing the Appellant, the Public Information Officer and the First Appellant Officer, were present.

The Appellant had filed the application on 09.10.2007 to the Public Information Officer for all Emergency Police Register record of 13.03.2007 of Register maintained at K.E.M. Hospital’s Police Counter and the Accidental Death Register records etc. The

Public Information Officer has provided information on 08.11.2007 to Appellant except information on the Accidental Death Register on the ground that it was submitted to the Court.

As the incomplete information was provided by Public Information Officer, the Appellant had made first appeal on 07.12.2007. The First Appellate Officer on giving hearing on 19.12.2007 had passed the order on 19.12.2007 itself. It is stated in the order that the First Appellate Officer has no power to take action on Public Information Officer for giving misleading information. In view of that he has recommended for taking action against the Public Information Officer and disposed of the appeal.

The Appellant has made unsigned second appeal on 30.01.2008 on the grounds stated in para one above. The Commission has heard both the parties and gone through all the papers available before the Commission.

It is seen that later on expected information is made available to the Appellant. This fact has also been taken note by Addl. Senior Judge Bombay at Sewree in his order dated 18.12.2007. As the appeal is unsigned, the Commission is passing following order.

Order

The Appeal is dismissed.

(Dr.S.V.Joshi), Chief Information Commissioner, Maharashtra.

Place: Mumbai  

Date: 31.12.2008.

ANALYSIS OF EXAMPLE 3:

Dr Suresh Joshi’s Order is bad in law. PIO’S DELAY & PROVIDING INCOMPLETE INFORMATION  is condoned without application of mind.

The Order mentions that even the First Appellate Authority noted that PIO had given misleading and incomplete information, and recommended action in his Order.  But Dr Joshi does not even seek the PIO’s explanation. Based on the twisted logic that the PIO gave the information “later on” on some indeterminate date, and on the technical grounds that the appellant had not signed the second appeal, Dr Joshi does not apply Section 19(5) and Section 20(1). He dismisses the appeal.

Section 19(5) states: In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the PIO who denied the request.

Section 20(1) states: Where the Information Commission, at the time of deciding any complaint or appeal is of the opinion that the PIO has,

... knowingly given incorrect, incomplete or misleading information ... 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...

EXAMPLE 4:

Appeal No.2008/3225/02

Shri.Moin Akhter Qureshi

Baitul Akhter Bldg., First Floor, Room No.18 /19,

Above Delhi Darbar Hotel, Patthe Bapurao Marg,

Mumbai – 400 004. …Appellant

V/s

First Appellate Officer cum Asst.Municipal Commissioner

Office of the “D” Ward, M.C.G.M.,

Nana Chowk, Mumbai – 400 007. …. Respondent

Public Information Officer cum Asst. Engineer,

(Building & Factories), Office of the “D” Ward, M.C.G.M.

Nana Chowk, Mumbai – 400 007.

GROUNDS

The appellant has made second appeal to the Commission on 6-12-2007 on the ground that the Public Information Officer has given false reply and further order dated 30-8-2007 which was given by the First Appellate Authority to give reply and document within seven days is not followed by the P.I.O., therefore penalty be imposed on P.I.O.

The hearing of the second appeal was fixed on 22-10-2008 in the office of the Commission. At the time of hearing the Appellant, the P.I.O. and the First Appellate Officer were present.

The appellant has asked for the details information on 14 points regarding notices issued to 15 illegal construction in Baitul Akhtar Building, Mumbai – 400 004 under his letter dated 11-6-2007. The nature of information asked for is like action taken after issuing notice with number of notice, whether illegal construction have demolished, if yes or no, why, whether the party has himself removed illegal construction, whether court injunction has brought, what steps have been taken to vacate court injunction, no. of notices pending to prosecute in the Hon. Metropolitan Court, action deem fit for lowering of plinth level, action deem fit for removed of brick partition wall, notice pending for demolition, why action has not been taken on the lowering of plinth level of Yadgar Punjab Hotel and Delhi Darbar Hotel and illegal window of Yadgar Punjab Hotel, copy of fresh notices, if issued in above complaints, copies of correspondence done with various departments such as Legal department, Police department, Municipal commissioner, Addl. Municipal commissioner (City), Chief Officer (Enquiries) V.O.S.D., D.M.C. zone – 1, A.M.C. “D” or any other department and documents and reply submitted as proof after notice were served on occupier or illegal constructor etc.

The P.I.O. under his letter No. ACD/9325/B, dated 6-7-2007 has informed to the appellant that particular of information required by appellant does not contain any details about any notices and hence no information can be furnished to the appellant.

Being aggrieved by the letter of the P.I.O. the appellant has made first appeal on 23-7-2007 to the First Appellate Officer requesting to him to imposed penalty according to the R.T.I. Act, 2005. The First Appellate Officer has arranged hearing on 23-8-2007.

The appellant and the P.I.O. were present for hearing. As the First Appellate Officer was not satisfied with the reply given by the P.I.O., he has passed the order on 30-8-2007 to provide proper information as requested by the appellant within seven days and thus first appeal is disposed off.

The appellant has made second appeal on 6-12-2007 to the Commission as the P.I.O. has not given reply and document to the appellant as per the order passed by the First Appellate Officer. The appellant has also requested to impose penalty on the P.I.O.

At the time of hearing of the second appeal on 22-10-2008, the Commission has heard both parties and gone through the documents available in the office of the Commission. It is also brought to the notice of the Commission that the appellant has made complaint letter on 1-1-2008 to the various officers / department on the same subject which is replied under letter dated 28-1-2008.

On going through the papers available in the office of the Commission and on hearing of both the parties, it is observed that the P.I.O. has not given required information to the appellant even after order of the First Appellate Officer which is negligence on the part of the P.I.O. The P.I.O. should henceforth obey the order of the First Appellate Officer under the R.T.I. Act, 2005.

If appellant is still not satisfied with the information given by letter dated 28-1-2008 the P.I.O. should give inspection of the concerned files to the appellant and give him copies of the documents required by him within a period of one month from the receipt of this if the applicant has not taken inspection 15 days before. The applicant should note also that he is entitles to get the information as per the definition of information in the Act. The following order is passed in the matter.

ORDER

The appeal is disposed off.

(Dr. Suresh V. Joshi)

Chief Information Commissioner, Maharashtra.

Place: Mumbai

Date: 07.01.2009.

ANALYSIS OF EXAMPLE 4:

Again, this Order of Chief SIC
Dr Suresh Joshi is totally illegal under RTI Act 2005.

He condones PIO’S TOTAL DENIAL OF INFORMATION  without application of mind:

Even the First Appellate Authority had ordered PIO to give the requested information. But PIO persisted in denial of information.

Dr Joshi evidently did not even ask for PIO’s justification as mandated by Section 19(5). He disposed off the appeal without considering the mandatory penal provisions, with only an instruction to PIO to give the requested information in a month if appellant has not taken inspection in 15 days time.

It is significant that the information requested pertains to demolition of 15 illegal constructions. Dr Joshi’s strange Order raises suspicions of undue favours and corrupt considerations.

Summary: This order violates sections 7(2), 19(5) and 20(1).

EXAMPLE 5:

Complaint No.2007/225/02

Shri Julio Rebeiro,

C/o Indian Music Industry, 266, Kaachwala Building,

2nd floor, Dr. Annie Besant Road, Opp. Passport Office,

Worli, Mumbai 400 030. .. Complainant

V/s

Public Information Officer,

Office of CEO, SRA, Griha Nirman Bhavan,

Bandra (East), Mumbai 400051. .. Respondent

GROUNDS

Shri Julio F. Rebeiro had given application u/s 6 of RTI Act, 2005 to the SPIO, SRA, Mumbai on 28.6.2007 seeking the following information:

“ Certified true copies of entire file of Project under construction at village Juhu, Taluka Andheri, having CTS No.35 and its adjoining land, etc. near JVPD Circle – K/West Ward – Developer: M/s Kunal Builders and Developers, A/3, Everest Building, Tardeo, Mumbai 400034 – Society: Shri Juhu Taj CHS – SRA IOD Ref. No. SRA/ENG/540/KW/MHL/AP, dt.20.5.2004 and C.C. Ref. SRA/ENG/540/KW/MHL/LOT, dt. 30.12.2004.”

The said application was received by the SRA on 4.7.2007 and since Mr. Rebeiro did not receive the information within a period of 30 days he filed complaint application u/s 18 of RTI Act, 2005 with this Commission on 9.8.2007 which was received in this Commission on 14.8.2007. Enquiry into this complaint was conducted on 31.8.2007 and 1.9.2007 when Mr. Kewal Semlani on behalf of Mr. Julio F. Rebeiro and Mr. Tidke, Dy. Collector and Shri R.R.Tripathi, Assistant PIO, SRA were present. The Assistant PIO explaining the delay has stated that the information sought through this application was voluminous more than 300 number of documents and several number of approved plans and they had taken considerable time to take out xerox and prepare the set. Moreover, it has been pointed by the Asst. PIO that criminal investigations are in progress by the Economic Offence Wing of CID in respect of this case, hence the information cannot be furnished u/s 8(1)(h) of RTI Act, 2005 and, therefore, though the documents required by the Appellant were kept ready, were not issued. He, however, rendered apology for not informing the Appellant within stipulated time.

Mr. Semlani who represented Mr. Rebeiro stated that such type of plea could be taken by the Police Authorities who are investigating the case, however, the same plea cannot be taken by the non-investigating authority like SRA. He also pleaded that since there has been delay in giving the information the Appellant desires that penalty should be imposed on the PIO.

Section 8(1)(h) of the Act is as follows: “8(1)(h) – information which would impede the process of investigation or apprehension, or prosecution of offenders;” Sheri Rebeiro, the Applicant himself was Commissioner of Police, Mumbai, Director General of Police, Government of Punjab, held gubernatorial posts and eminent personality. If the required information is in such hands, by no stretch of imagination it would be surmised that this would impede the process of investigation or apprehension or prosecution of offenders.

Since such an eventuality must have arisen in respect of PIO for the first time the predicament of PIO is also understandable. However, he ought to have informed the applicant about the possible delay in furnishing the desired information. In this case, the PIO ought to have sought the guidance from the CEO, SRA as regards whether such information should be given or not. In this case, however, he simply did not take any initiative and put-forth this argument only at the time of hearing before this Commission. Since the information has been kept ready, it should be immediately given to the Complainant without charging any fee since there has been delay on the part of the PIO in giving the information. Since this is a peculiar case, the Commission is imposing penalty of just Rs. 1,000/- which would serve the purpose of enforcing time limit for giving the information under RTI Act.

ORDER

(a) Information should be given to the Applicant free of cost immediately;

(b) PIO should pay a penalty of Rs. 1,000/- for his lapse.

The CEO, SRA should see that this amount of Rs. 1,000/- is recovered from the salary of PIO for the month of September 2007 paid in October 2007 and deposited under proper head prescribed by the Government and compliance be reported to the Commission by 15th October, 2007.

(Dr. Suresh V. Joshi)

Chief Information Commissioner

Place: Mumbai.

Date: 1.9.2007

ANALYSIS OF EXAMPLE 5:

This is a high-profile case where Julio Ribeiro, represented by Kewal Semlani, was the respondent. The matter was concerning illegal construction work involving crores of rupees.

Dr Suresh Joshi was clearly on the horns of a dilemma.

Dr Joshi condoned PIO’S NON- REPLY, WHICH AMOUNTS TO DENIAL OF INFORMATION AS PER SEC. 7(2),  by pleading that this is a “peculiar case”.

Nonetheless, to avoid antagonizing Kewal Semlani and Julio Ribeiro, he imposed a token penalty of Rs 1,000.

Dr Joshi’s addressed the PIO’s objection under section 8(1)(h) with specious arguments: “Shri Rebeiro, the Applicant himself was Commissioner of Police, Mumbai, Director General of Police, Government of Punjab, held gubernatorial posts and eminent personality. If the required information is in such hands, by no stretch of imagination it would be surmised that this would impede the process of investigation or apprehension or prosecution of offenders.”

As the information requested pertains to large-scale illegal construction being investigated by CID’s Economic Offence Wing (EOW), Dr Suresh Joshi’s peculiar Order raises suspicions of undue favours and corrupt considerations.

Summary: This order violates sections 7(2) and 20(1) and looks fishy, as Dr Joshi pulls off a balancing act.

Do you feel that the above analysis of Dr Suresh Joshi’s Orders is correct? Or do you feel that it is unfair or illogical?

Please feel free to comment, and also to email other obviously bad Orders of other Information Commissioners at SIC and CIC.

Warm Regards,

Krish

98215 88114

sahasipadyatri@gmail.com

In order to oppose crippling amendments to the RTI Act and the persistent unwillingness of bureaucrats to implement the teeth of the Act, we need to agitate. And since we are neither goons who will go on a rampage throwing stones and burning buses, nor Mahatmas who will fast unto death, we need to think of Civil Disobedience. As petitioning, lobbying and media-campaigning have more-or-less failed, acts of civil disobedience may be the only way that we have to make our dissent felt by the common man and heard in the corridors of power.

What is civil disobedience?

Civil disobedience is a form of protest in which protestors deliberately violate a law. Classically, they violate the law they are protesting, but sometimes they violate other laws which they find unobjectionable, such as trespass or traffic laws. Most activists who perform civil disobedience are scrupulously non-violent, and willingly accept legal penalties. The purpose of civil disobedience can be to publicize an unjust law or a just cause; to appeal to the conscience of the public; to force negotiation with recalcitrant officials; to "clog the machine" (in Thoreau's phrase) with political prisoners; to get into court where one can challenge the constitutionality of a law; to exculpate oneself, or to put an end to one's personal complicity in the injustice which flows from obedience to unjust law —or some combination of these. While civil disobedience in a broad sense is as old as the Hebrew midwives' defiance of Pharaoh, most of the moral and legal theory surrounding it, as well as most of the instances in the street, have been inspired by Thoreau, Gandhi, and King.

The Dandi March is the clearest example of civil disobedience that we have, where Gandhiji and a large number of people deliberately violated the Salt Laws imposed by the British.  In Champaran, he defied the British administration’s directions to leave the area, and insisted on documenting the plight of oppressed farm workers. In Kheda, he incited the farmers to protest a tax increase by refusing to pay the tax, and going to jail. Earlier in his career, in South Africa, Mahatma Gandhiji and his people publicly burned the registration cards that indentured labourers, i.e. Indians, were required by law to carry.

Thoreau zoomed in on the citizen's role in supporting its government, and its misdeeds, through taxes. How deep is our disagreement, he questions, if we continue fillings its treasury, enabling it to continue doing that which we say we wish to resist. "Be radical," he is saying. If you truly believe that wrong is being done, oppose it by going beyond the law, or rising above the law.

Moral arguments for and against the use of
Civil Disobedience in a democracy

Objection no. 1:  Civil disobedience cannot be justified in a democracy. Unjust laws made by a democratic legislature can be changed by a democratic legislature. The existence of lawful channels of change makes civil disobedience unnecessary.

Reply:  Thoreau, who performed civil disobedience in a democracy, argued that sometimes the constitution is the problem, not the solution. Moreover, legal channels can take too long, he argued, for he was born to live, not to lobby. His individualism gave him another answer: individuals are sovereign, especially in a democracy, and the government only holds its power by delegation from free individuals. Any individual may, then, elect to stand apart from the domain of law. Martin Luther King, Jr., who also performed civil disobedience in a democracy, asks us to look more closely at the legal channels of change. If they are open in theory, but closed or unfairly obstructed in practice, then the system is not democratic in the way needed to make civil disobedience unnecessary. Other activists have pointed out that if judicial review is one of the features of American democracy which is supposed to make civil disobedience unnecessary, then it ironically subverts this goal; for to obtain standing to bring an unjust statute to court for review, often a plaintiff must be arrested for violating it. Finally, the Nuremberg principles require disobedience to national laws or orders which violate international law, an overriding duty even in (perhaps especially in) a democracy.

Objection no 2:  Even if civil disobedience is sometimes justified in a democracy, activists must first exhaust the legal channels of change and turn to disobedience only as a last resort.

Reply:  Legal channels can never be "exhausted". Activists can always write another letter to their congressional delegation or to newspapers; they can always wait for another election and cast another vote. But justice delayed, King proclaimed, is justice denied. After a point, he argued, patience in fighting an injustice perpetuates the injustice, and this point had long since been passed in the 340 year struggle against segregation in America. In the tradition which justifies civil disobedience by appeal to higher law, legal niceties count for relatively little. If God trumps Caesar to justify disobedience to unjust law, then God can trump Caesar to permit this disobedience sooner rather than later. In this tradition, A.J. Muste argued that to use legal channels to fight unjust laws is to participate in an evil machine, and to disguise dissent as conformity; this in turn corrupts the activist and discourages others by leading them to underestimate the numbers of their congeners.

Objection no 3:  We must obey the law under a contract with other members of our society. We have tacitly consented to the laws by residing in the state and enjoying its benefits.

Reply:  Obviously this objection can be evaded by anyone who denies the social contract theory. But surprisingly many disobedient activists affirm that theory, making this an objection they must answer. Socrates makes this objection to Crito who is encouraging him to disobey the law by escaping from prison before he is executed. Thoreau and Gandhi both reply (as part of larger, more complex replies) that those who object deeply to the injustices committed by the state can, and should, relinquish the benefits they receive from the state by living a life of voluntary simplicity and poverty; this form of sacrifice is in effect to revoke one's tacit consent to obey the law. Another of Thoreau's replies is that consent to join a society and obey its laws must always be express, and never tacit. But even for Locke, whose social contract theory introduces the term "tacit consent," the theory permits disobedience, even revolution, if the state breaches its side of the contract. A reply from the natural law tradition, used by King, is that an unjust law is not even a law, but a perversion of law (Augustine, Aquinas). Hence, consent to obey the laws does not extend to unjust laws. A reply made by many Blacks, women, and native Americans is that the duty to obey is a matter of degree; if they are not fully enfranchised members of American society, then they are not fully bound by its laws.

Objection no 4:  What if everybody did it? Civil disobedience fails Kant's universalizability test. Most critics prefer to press this objection as a slippery slope argument; the objection then has descriptive and normative versions. In the descriptive version, one predicts that the example of disobedients will be imitated, increasing lawlessness and tending toward anarchy. In the normative version, one notes that if disobedience is justified for one group whose moral beliefs condemn the law, then it is justified for any group similarly situated, which is a recipe for anarchy.

The first reply, offered in seriousness by Thoreau and Gandhi, is that anarchy is not so bad an outcome. In fact, both depict anarchy as an ideal form of society. However, both are willing to put off the anarchical utopia for another day and fight in the meantime for improved laws; consequently, this strand of their thinking is often overlooked. Another reply is a variation on the first. Anarchy may be bad, but despotism is worse (Locke instead of Hobbes). If we face an iniquitous law, then we may permissibly disobey, and risk anarchy, in order to resist the tendency toward the greater evil of despotism. A.J. Muste extended this line of thinking to turn the slippery slope objection against itself. If we let the state conscript young men against their wills to fight immoral wars, then what will the state do next? For Muste, conscription puts us on a slippery slope toward despotism, and obedience would bring us to the bottom.

Utilitarians observe that disobedience and obedience may both be harmful. The slippery slope objection falsely assumes that the former sort of harm always outweighs the latter. In the case of an iniquitous law, the harm of disobedience can be the lesser evil. This utilitarian reply is sometimes found to coexist with a complementary deontological reply, for example in Thoreau: one simply must not lend one's weight to an unjust cause.

Ronald Dworkin replies, in effect, that the descriptive version of the argument is false and the normative version irrelevant. There is no evidence that civil disobedience, even when tolerated by legal officials, leads to an increase in lawlessness. Moreover, rights trump utility. Since (for Dworkin) there is a strong right to disobey certain kinds of unjust laws, and since the slippery slope argument points only to the disutility of disobedience, this is a case of a right in conflict with utility; hence the right to disobey must prevail.

The normative version of the slippery slope argument has little force if the criteria used by activists permit some but not all disobedience. In Kant's language again, universalizability fails if the maxim of the action is "disobey a law whenever you disapprove of it," but it can succeed if instead the maxim is, "disobey when obedience would cause more harm than disobedience," or "disobey when a law is unjust in the following specific ways...." And it must be said, virtually all activists who practice civil disobedience follow criteria which endorse some, but not all, disobedience. King, for example, did not advocate indiscriminate disobedience; he advocated disobedience of unjust laws and obedience to the just. He articulated what he regarded as public, objective criteria which help us identify the unjust laws which may or must be disobeyed, and the just laws which must obeyed. Any attempt to articulate the distinction between the two sorts of law is in effect an attempt to show that the slide down the slope can be halted, or that the maxim to disobey can be universalized.

King had a second reply, inspired by Gandhi: he deliberately made his example difficult to imitate. He pressed for negotiation before turning to disobedience; he underwent self-purification before every disobedient action; he accepted blows from police without retaliation; he accepted arrest and punishment. These tactical features of his actions had other purposes as well, but there is little doubt that they prevented onlookers from thinking that here was a criminal getting away with murder whose example could be imitated with profit.

The counter reply, made by Waldman and Storing is that the example of the careful disobedient will be imitated by the careless, and cannot be confined, especially if activists cloak their disobedient acts in the rhetoric of righteousness. If true, this instantly makes replies to the normative version of the slippery slope objection irrelevant. Caution in stating our criteria so that normatively we stop our slide far from the bottom does nothing to prevent the example from being misinterpreted or oversimplified by the less cautious. Scrupulosity in self-purification, courage in accepting blows, and sacrifice in accepting punishment do not stop the unscrupulous from being inspired by the example of disobedience as such.

One direct response, then, to the descriptive version held by Waldman and Storing comes from Rawls, who argued that civil disobedience can actually help to stabilize a community. It can be destabilizing if a very large number of people do it, but this rarely happens, and when only a few do it, it can have the beneficial and stabilizing effect of nudging a society closer to its shared vision of justice.

Thoreau and Wasserstrom argue that while many in fact might be morally justified in disobeying, few in fact will actually disobey. For Thoreau and A.J. Muste, this inertia and docility in the general population are far larger problems than incipient anarchy.

Sometimes activists can point to the lawlessness of their opponents as the real concern. Thoreau claimed that the only harmful consequences of civil disobedience were triggered by the government's reaction to it. King painted white segregationists as the group most likely to precipitate anarchy, since it disobeyed desegregation laws without regard to their legitimacy or justice. Moreover, an activist need not be an anarchist to welcome widespread imitation. Thoreau ardently wished that all opponents of slavery would act on their convictions. He would regard a prediction of widespread imitation of his disobedience as an inducement to act, not as an objection. At this point, critics must be careful not to use the slippery slope objection inconsistently, by predicting anarchy to those who fear it, and inert indifference to those who fear that. On the other hand, activists who welcome imitation should probably do all they can to encourage this imitation; Thoreau did nothing of this kind until he wrote his extremely influential essay two years after he was arrested for withholding his poll tax.

"What I have to do is to see at any rate, that I do not lend myself to the wrong which I condemn. It costs me less in every sense to incur the penalty of disobedience to the State than it would to obey." – Henry David Thoreau

REFERENCES: Gandhi, Mohandas K. Satyagraha in South Africa. Trans. Valji Govindji Desai. Ahmedabad: Navajivan Publishing House, 1928.

Bedau, Hugo Adam (ed.). Civil Disobedience: Theory and Practice. New York: Macmillan, 1969.

Harris, Paul (ed.). Civil Disobedience. Lanham, Maryland: University Press of America, 1989.

King, Martin Luther, Jr. "Letter From Birmingham Jail." In his Why We Can't Wait. New York: New American Library, 1964, pp. 76-95.

Thoreau, Henry David. The Variorum Civil Disobedience. Ed. Walter Harding. New York: Twayne Publishers Inc., 1967

Main article sourced from http://www.earlham.edu/%7Epeters/writing/civ-dis.htm

By Peter Suber, Department of Philosophy, Earlham College, Richmond, Indiana, 47374, U.S.A.
peters@earlham.edu.

Download the below letter for DoPT minister& Sonia Gandhi, and another letter for your Chief Minister.

CLICK HERE FOR DOWNLOADING ALL LETTERS: http://www.box.net/rtidemands2009

Customize them by suitably correcting the yellow-highlighted text, and send.

DRAFT OF LETTER

To

Shri Prithviraj Chavan

Minister of State for Personnel, Public Grievances & Pensions

Sardar Patel Bhawan, Sansad Marg,
New Delhi – 110001

Copy to Smt Sonia Gandhi

Don’t AMEND the RTI Act, IMPLEMENT it

Dear Sir,

We note with alarm your government’s recent moves to amend the RTI Act, especially with regard to file-notings. Please be warned: Any attempt to amend the Act today will cause great public anger and immense loss of the goodwill. It may cause widespread unrest and agitations, as the RTI Act has a very special place in our hearts.

Passing the Right to Information Act in 2005 is a feather in the cap of your party and the UPA government. It was much appreciated by the citizens of India. However, it is now time for you to show that passing the RTI Act was not merely a superficial show and an act of lip-service.

Enclosed is our “Charter of Demands” for proper implementation of RTI Act 2005. Please implement the nine recommendations contained in it to improve governance, increase public accountability, and reduce corruption and arbitrariness. Prominent RTI Activists have formulated these recommendations over many months, after keenly observing Information Commission’s faulty procedures for conducting hearings and passing orders.

This is an opportunity for your newly-formed government to retain the faith and goodwill of the people of India. Please show us that your heart is in the right place.

With Best Wishes,

Yours Sincerely,

your name, address and contact details

ENCLOSED: Charter of Demands for Better Implementation of RTI Act 2005

Dear fellow-citizens,

Our right to information is being sabotaged. The method is simple: the teeth of RTI Act 2005, namely sections 6(2), 7(2), 19(5) and 20, are used as dentures. By an unspoken agreement, Information Commissioners throughout India are disregarding these MANDATORY sections, and treating them as optional. Public Information Officers (PIOs) are comfortable in the knowledge that Central or State Information Commissioners (CICs/SICs) will use “discretionary” or “judge-like” powers in their favour, and not on behalf of the applicant. Going against the spirit of the Act voiced in the preamble, Information Commissioners (ICs) are repeatedly erring on the side of secrecy and unaccountability, but never erring on the side of transparency and truth.

What is the correct use of these sections of RTI Act, which are its teeth?

Section 6(2) states that applicant SHALL NOT BE ASKED WHY he wants the information requested. This means that PIO, First Appellate Authority (FAA) and SIC/CIC must decide mainly on the basis of section 8, 9, 10 and 11 whether that information should be denied. More importantly, Sec 6(2) implies that at an appeal hearing, the appellant cannot be put on the defensive. If his grounds of appeal have been clearly written citing the relevant wording of Section 20 (e.g. refused to receive application, delayed, denied, incomplete, misleading, false), the appellant can sit tight before the FAA or IC. He needs to speak up only if the PIO or FAA misrepresent the facts of the case, or if IC overlooks the fact that they produced inadequate evidence to support their side of the story.

Section 7(2) states that if the PIO fails to write back to the applicant within the time limits, he will be deemed top have denied the information, IRRESPECTIVE OF WHETHER THE DENIAL WAS JUSTIFIABLE under sections 8, 9 etc. PIO’s FAILURE TO REPLY TO RTI APPLICATION WITH OR WITHOUT INFORMATION WITHIN RTI DEADLINES (48 hours, 30 days, 35 days, 40 days etc.) WILL DEFINITELY ATTRACT PENALTY, and no justifications can work here.

Section 19(5) state that in any appeal proceedings, the onus SHALL BE on the PIO to prove that a denial of a request was justified. Again, the last paragraph of Section 20(1) states that the burden of proving that he acted reasonably and diligently shall be on the PIO. This means that an appellate hearing is necessarily a TRIAL OF THE PIO where the correctness of his actions must be looked into. The hearing is NOT AN ARBITRATION OR GRIEVANCE-REDRESSAL FORUM where the Information Commission attempts to resolve the appellant’s grievance or his dispute with PIO or the public authority. In that sense, the Second Appeal Hearing is more like a criminal trial, and not like a civil case where a settlement can be reached. These sections also mean that PIO CAN ESCAPE PENALTY ONLY BY GIVING PROPER WRITTEN JUSTIFICATIONS, supported by oral submissions during the hearing.

Section 20(1) states that PIO SHALL BE PENALIZED @ Rs 250 per day where the IC is of the opinion that the PIO has, without reasonable cause, committed ANY of the below offences:

·        Refused to receive an application for information

·        Has not furnished information within the time specified under section 7(1)

·        Mala fidely (ie. in bad faith) denied the request for information

·        Knowingly given incorrect, incomplete or misleading information

·        Destroyed information which was the subject of the request

·        Obstructed in any manner in furnishing the information

Please note that these sub-clauses are joined with “or”, not “and”. “MALA FIDE” HAS TO BE ESTABLISHED ONLY FOR DENIAL; IN THE CASE OF OTHER OFFENCES LISTED ABOVE, LACK OF “REASONABLE CAUSE” UNDER VARIOUS SECTIONS OF RTI ACT MAKES PIO ELIGIBLE FOR PENALTY.

Section 20(2) states that IC SHALL recommend for DISCIPLINARY ACTION against PIO when he is of the opinion that PIO has without any reasonable cause and PERSISTENTLY, committed ANY of the above-mentioned offences.  In other words, if a PIO is a habitual offender or repeat-offender, he is eligible for disciplinary action.

Fellow citizens, please don’t be silent bystanders while the teeth of the RTI Act are removed at the sweet will of the Information Commissioners. CICs/SICs are appointed to uphold and implement the Act in its word and spirit, and they are getting a fat salary and privileges from your tax money! If their hearings and Orders violate the above-mentioned key provisions, please don’t take things lying down.

Refuse to accept such faulty and deficient Orders, tear them up and send it back! Protest and make noise! Or challenge them in High Court, and have such Orders overturned. This is not the time for peacefully carrying on with business as usual. This is the time for battle, for agitation, for raging against injustices.

Warm Regards,
Krish
098215 88114

Dear All,

Below is our charter of demands to Department of Personnel & Training (DoPT), the Union Government’s apex body for implementing RTI Act 2005. This charter contains ambitious demands.

One may rightly ask, “Who are you to raise such audacious demands?” The answer is simply, “Citizens of India”. We must not let politicians and public servants give us an inferiority complex. Although it may seem outrageous at first, we must THINK BIG. It is the need of the hour.

Please read:

Charter of Demands to DoPT:
Strict adherence to RTI Act 2005

1.     Central Government must give commitment that no amendment to RTI Act 2005 will be introduced until December 2011. Instead, DoPT must focus on proper implementation of the letter and spirit of the Act as detailed below.

2.     DoPT must direct every Information Commissioner (IC) to uniformly serve show-cause notice to Public Information Officer (PIO) along with notice of hearing. The purpose of hearing is to determine whether the PIO and the public authority acted diligently under the RTI Act, and if not, what penalty and disciplinary action is to be imposed. The purpose of hearing is not to enter into discussions, negotiations and grievance redressal.

3.     DoPT must create a common objective format for Speaking Order of all ICs and First Appellate Authoritys (FAA).  The bare minimum requirement for every Order is that it must record  the following key points specified in the RTI Act:

a)      Date of RTI Application:
Last date for providing info. as per RTI Act:
Actual date that information was sent:
No. of days delay:
Therefore, penalty that may be levied @ Rs 250 per day:
Does appellant allege that info. provided is incomplete, misleading or false? YES / NO

b)      Did PIO submit written justification with necessary documentary evidence? YES / NO
If yes, is PIO’s justification correctly reasoned under the RTI Act? YES / NO / PARTLY

c)      Is penalty ordered to be levied? YES / NO
Is disciplinary action recommended by SIC? YES / NO
Is appellant to be compensated by Public Authority? YES / NO

d)      If answers to (b) are NO or PARTLY, and answers to (c) are NO, then give brief reasoning of SIC for waiving penal provisions u/s 20 and compensation u/s 19(8), citing relevant sections of RTI Act 2005.

e)      Is information ordered to be provided? YES / NO

4.     DoPT must put in place a mechanism whereby if IC’s Orders are not complied by PIO and public authority, disciplinary action is automatically initiated against both PIO and head of the public authority, and the same is recorded in their Annual Confidential Report and Service Book. The onus is on PIO and head of public authority for providing to both IC and RTI appellant the documentary evidence of their compliance with each point of IC’s Orders, including penalty, disciplinary action and their mention in ACR and Service Record. Thousands of orders of almost every IC till date have zero compliance, and yet no punitive action has been initiated; this must be immediately remedied.

5.     DoPT must ensure that Digital Video Recorders or CCTVs are installed in every SIC’s chamber/ courtroom. Audio-visual recording of all hearings and meetings with Information Commissioners must be made available on CD/DVD to any citizen on payment of a small sum like Rs 50. These must also be promptly uploaded on the internet and put in the public domain to ensure accountability and transparency in hearings and other interactions with activists, appellants and public.

6.     DoPT must set up clear and realistic mechanisms for implementation of Section 4 of RTI Act (suo moto disclosure of information) by each public authority. This must include software formats for easily-updateable web-pages, ready-reckoners and estimates of personnel and hardware required for different sorts of public authorities, budgets, timetables etc.

7.     Before August 1, 2009, DoPT must publish on its website the exact selection procedure followed for each Central and State Information Commissioner (including Chief Information Commissioners), including minutes of meetings, name and designation of the members of the selection Committee, correspondence and file notings, names and qualifications of other candidates who were considered for the post.

8.     If it is discovered that the method of selection of any Information Commissioner was flawed, that it violated laws, rules and regulations, or raised suspicions of political favours or nepotism, DoPT must set aside the appointment of that Information Commissioner as being unlawful ab initio.

9.     DoPT must ensure transparency in new appointments of CICs/SICs through:

(i)                inviting applications through prominent advertisements in national dailies

(ii)              scrutiny of qualifications

(iii)            making applicants undergo detailed training in judicial functioning, administrative procedures and a thorough understanding of RTI Act 2005, CPC, Public Records Act etc

(iv)            making applicants take written, oral and practical examinations to test their ability to hold hearings, expeditiously and correctly dispose of large number of cases. Also, the candidates’ physical and mental fitness, computer skills and other soft skills should be tested and benchmarked.

Information Commissioners must be appointed only on the basis of their performance in such examinations.  The selection procedure must be devised and publicly announced by DoPT before November 1, 2009, and applications must be invited before December 1, 2009.     

This charter of demands is signed & supported by:     

G R Vora, Mohammed Afzal, Sunil Ahya, Krishnaraj Rao, Dr Srikant Prabhu, Milind Kotak, Rehan Yar Khan, Vishwas Deshmukh, Vasant Deshpande, Shubinder Chopra, Sherley Singh, Avinash Murkute, Kamlakar Shenoy, Shailendra Indulkar, Ajay Marathe, V Madhav, Sumer Bais, Shailendra Indulkar, Madan Pardeshi, Rakesh Gupta

Dear friends, please tell us whether we should add your name to the list of signatories. We intend to submit this to the powers-that-be, and agitate for the implementation of each of these demands. We invite you to join us in non-violent civil disobedience.

It is quite likely that you and your friends will think of some improvements to this charter. The charter has already undergone several revisions, deletions and additions after numerous discussions over the past month. While communicating your views to us, please remember that there is always room for improvement. What is really important is not ideas on paper, but action for transforming them into reality. In the end, it will boil down to our convictions and committed actions -- the sacrifices that we make as individuals -- and not just a bunch of good ideas and noble intentions aired in public.

Jai Hind!

Krish

98215 88114

Fight for Equality under the Law & Equal Protection of the Law

Dear Citizens, members of Civil Society,

While dealing with public servants and politicians, we are fighting an unequal battle. If we protest against injustice and corruption, they ask the police to file an FIR, initiate criminal prosecution and cause harassment to us through police and courts. And although they routinely break various laws, the existing system protects them from prosecution.

PROBLEM 1: Section 197 of CrPC says, “(1) When any person who is or was a Judge or Magistrate or a public servant … is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction… of the Central Government … or State Government. (4) The Central Govt or the State Govt, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution … is to be conducted, and may specify the Court before which the trial is to be held.”

PROBLEM 2: Police stations do not file FIRs against those in authority or in power. Either they bluntly refuse, or they employ diversionary tactics such as filing non-cognizable complaint etc.

We must find remedies to the above two problems. If we do so, various provisions of IPC will become available for use by citizens to reduce corruption and ensure Rule of Law. For example:

119. Public servant concealing design to commit offence which it is his duty to prevent

Whoever, being a public servant, intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence which it is his duty as such public servant to prevent; voluntarily conceals, by any act or illegal omission, the existence of a design to commit such offence, or makes any representation which he knows to be false respecting such design;

If offence be committed- shall, if the offence be committed, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the longest term of such imprisonment, or with such fine as is provided for that offence, or with both;

or if the offence be not committed, shall be punished with imprisonment… provided for the offence for a term which may extend to one-fourth part of the longest term of such imprisonment or with such fine as is provided for the offence, or with both.

217. Public servant disobeying direction of law with intent to save person from punishment…

Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, or subject him to a less punishment than that to which he is liable… shall be punished with imprisonment… for a term which may extend to two years, or with fine, or with both.

218. Public servant framing incorrect record or writing with intent to save person from punishment…

Whoever, being a public servant… charged with the preparation of any record or other writing, frames that record or writing in a manner which he knows to be incorrect, with intent to cause, or knowing it to be likely that he will thereby cause, loss or injury to the public or to any person, or with intent thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment… shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

219. Public servant in judicial proceeding corruptly making report, etc., contrary to law

Whoever, being a public servant, corruptly or maliciously makes or pronounces in any stage of a judicial proceeding, any report, order, verdict, or decision which he knows to be contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

ARTICLE 14 OF THE CONSTITUTION says: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

ARTICLE 13 (2) concerns “Laws inconsistent with or in derogation of the fundamental rights.”
It states, “The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.” It further clarifies: “‘law’ includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having… the force of law.”

In spite constitutional safeguards, inequality in the eyes of the law is rampant. The use of CrPC Section 197 and many notifications, circulars, customs etc. are nullifying our fundamental right of “Equality before the law and equal protection of the laws”. The laws applicable to citizens are not applicable to politicians, bureaucrats and public servants.

We must raise our voices against this curtailment of our fundamental rights and liberties. We must mobilize public opinion, raise a public outcry, agitate, file PILs and employ every democratic means to change this reality on the ground.

To correct this situation, we are hereby calling right-minded citizens
to come together and fight on various fronts:

1)    Civil Disobedience movement for repeal of Section 197, as it militates against the Constitutional guarantee of Equality Before Law and Equal protection of Law

2)    Public Interest Litigation in Supreme Court asking for repeal of Section 197, on the brounds that it is ultra vires the Indian Constitution.

3)    Filing a number of police complaints against wrongdoings of public servants, including police, magistrates, judges etc. and agitating for FIR to be filed

4)    Insisting on police investigation of such FIRs until chargesheet is filed in court

5)    Seeking every available legal remedy, including civil case against public officials and politicians wherever wrongdoings and corrupt dealings are evident

6)    Prosecution of State Information Commissioners u/s 217, 218 and other laws applicable to the crimes of holding patently illegal hearings and passing illegal orders that are not sustainable under the RTI Act.

In the inspiring words of Rabindranath Tagore:

“Where the mind is without fear and the head is held high…

Into that heaven of freedom, my Father, let my country awake.”

To protect our beloved nation and its suffering citizens, please join in this struggle.

We urge the Chief Ministers & Governors, Prime Minister & President of India, and Chief Justices of High Court and Supreme Court to immediately remedy the inequities being perpetrated in the name of Law & Order. We ask them to take suo moto action to ensure that no common citizen of India is deprived of the protection of the law and legal remedies just because he is pitted against politicians and public-servants.

Sincerely,

“The Jana Gana Mana group”

Krishnaraj Rao, G R Vora, Mohd Afzal, Sunil Ahya, Vijay Chauhan,       

Dr Srikant Prabhu, Ravi Kiran Haldipur, Sanjay Ghatalia  & K N Singh

How we landed in Jail – a brief account

Dear friends,

Since our release last Thursday after 48 hours in police and judicial custody, we have been repeatedly asked: “What exactly happened? Why were you charged with trespass, rioting, assault etc? Did you go on a rampage in Dr Suresh Joshi’s office or courtroom? How can singing Jana Gana Mana get somebody into so much trouble?”

People also ask, “How did it feel to be in jail? How are you feeling now? Aren’t you ashamed of being branded as criminals?”

On behalf of our small group of jailbirds, who proudly call themselves the Jana Gana Mana group, let me put the facts on record. I shall write this in three parts:

Part I: What exactly happened at Maharashtra State Information Commission on Tuesday, 19th May? Why did we get arrested? Why did CSIC Dr Joshi lodge an FIR with the Police?

Part II: What were the events in the earlier months that built up to this incident? Were we very aggressive or did we misbehave in earlier meetings? What put Dr Joshi into his negative / angry / vindictive frame of mind?

Part III: How did it feel to be in police lockup, taken around in police vans, marched barefoot to the Magistrate court, and made to sleep amidst 130 assorted inmates at Arthur Road jail? How was the food, and how were our conversations with undertrials and hardened criminals?

Today, I shall write only Part I.

What happened on the afternoon of 19^th May

Dr Srikant Prabhu, a 67-year-old veterinarian, had a second appeal hearing before Dr Suresh Joshi at 4.30 pm. He was accompanied by G R Vora and Mohd Afzal. They completed that hearing before the other activists arrived one by one at the State Information Commission.

In fact, we were not one homogenous group. Two groups and some individual activists pursuing their own cause were together at this meeting to press for clean implementation of the RTI Act.

·        Krishnaraj Rao, G R Vora, Mohd Afzal and Sunil Ahya comprise one group. They had been following up Dr Suresh Joshi for proper implementation of RTI Act since November 2008.

·        Another group consists of Mukund Parikh, Dr Srikant Prabhu, Sanjay Ghatalia and K N Singh.

·        Vijay Chavan is a social activist who had been pursuing a number of second appeals, and successfully got several PIOs penalized.

·        Ravi Kiran Haldipur was an appellant who had recently become interested in our cause and our methods.

Our group – the first one -- submitted a letter to the inward department. The letter warned that if Information Commissioners implemented penal provisions of RTI Act in an arbitrary or mala fide way, then Sec. 217 & 218 of the Indian Penal Code would be applicable. They could be hauled to court and jailed for such action. Attached to this letter were relevant judgments of High Courts and Supreme Court.

Read letter here: http://www.box.net/shared/l9tmt6zs3y

Having submitted the letter, we spoke to Dr Joshi’s Executive Assistant Kalpana Gavas, and asked for a time to see Dr Joshi. She said that he was too busy to see us, as he had a doctor’s appointment at 5.30.

So we said we would go inside and observe his court hearings. (This is something that we have been doing a couple of times every month, in groups of varying sizes.) Again, she consulted Dr Joshi and said that only five of us could go inside at one time. We decided to disregard this.

We entered, stood or sat at the back, and observed one hearing. After the hearing was completed, we requested Dr Joshi (who had a band-aid on his forehead) for a brief meeting to submit our letter personally. He granted us five minutes and asked us to come to the front. Dr Joshi said that he would henceforth meet us and other activists only on the first Monday of every month. We told him that this was unacceptable, as the list of things that he had promised and had not implemented was growing longer, requiring more frequent meetings.

Suddenly, a well-known social activist who had come with us for the first time, stood up and announced that he always began this kind of meetings by singing the National Anthem in order to invoke a patriotic spirit. (He had earlier sung the National Anthem at the office of Dr Patangrao Kadam, Maharashtra Housing Minister.) He then unilaterally started singing Jana Gana Mana. The rest of us joined him in chorus. Dr Joshi remained seated for the initial three lines, and then shook his head in dismay, got up and left the room by the back door which leads to his chamber.

After we finished singing, we waited a few minutes for him to return, and then someone went outside to find that Dr Joshi was leaving. Standing in the lobby, he said loudly that this was not the way, and he was calling police. We said that if that was indeed the case, they we would wait for the police to arrive.

We waited in the lobby for half an hour, and took this group photo: http://www.box.net/shared/c3adg3gzg3

When we asked Ms Gavas again whether we were required to wait any longer, she asked us to wait. Approximately an hour after Dr Joshi’s departure, around 15 policemen arrived, took the statements of Ms Gavas and other office staff, took the group to Marine Drive Police Station in a police van and told us to sign us the arrest/surrender form. We were put in police custody at Azad Maidan Police Station overnight. Next day we were produced in Court and granted bail on a surety of Rs 20,000 per head. As we could not produce this at short notice, we were sent to Judicial Custody at Arthur Road Jail.

We were charged with the following offences:

Section 143- Whoever is a member of an unlawful assembly shall be punished with imprisonment of either description for a term which may extend to six month, or with fine, or with both.

Section 145- Joining or continuing in unlawful assembly, knowing it has been commanded to disperse- Whoever joins or continues in an unlawful assembly, knowing that such unlawful assembly has been commanded in the manner prescribed by law to disperse, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Section 146- Rioting- Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.

Section 448- Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine or which may extend to one thousand rupees, or with both.

Section 452- House-trespass after preparation for hurt, assault or wrongful restraint- Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

353- Assault or criminal force to deter public servant from discharge of his duty- Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Some Questions:

Dear friends, many of us agree that the Jana Gana Mana singing was unnecessary and distracting. It happened in an unpremeditated way, and was not to our liking… but once someone in our large group started singing, we felt that the only gracious thing to do was stand at attention and join in.  We could not stop him midway by poking his ribs or kicking his shin, could we?

 Our conduct as a group may at worst be described as inappropriate or unruly. However, does this justify the serious charges levelled against us viz. assault, rioting, house-trespass etc? Does this justify the police harassment?

The response by Dr Joshi and the police was out of proportion... a bit like throwing someone into jail for crossing the road when the light was red. Don't you think so?

Warmly,
Krish
98215 88114

I'll keep this short and sweet. It is nice that our Lok Sabha elections have returned a cohesive verdict... BUT!

But big trouble lies ahead. Happy stock markets are disregarding the realities of the real economies -- both Indian and global. 

A credit-card default crisis is building up momentum in the West. Bankruptcy or collapse of three auto majors -- General Motors, Ford and Chrysler -- plus a number of banking majors abroad looms ahead. Rapidly rising unemployment will soon cross 15-17% in western countries,  triggering unrest and further economic collapse.

India is heading for a sub-prime crisis of its own. The value of real estate has still not collapsed, because it is being artificially supported at high levels by builders and investors. But their holding-power is ebbing with each month that this recession is prolonged. Multiplexes, retail chains and malls are running up huge losses; they have been a major cause of real-estate buoyancy in recent years. Now they are a millstone around the necks of builders, dragging down the entire market.

When real estate values suddenly dip in coming months, it will drag down the values of several other asset classes, including shares. A lot of big banks and lending institutions will be saddled with bad debts... or as they call them nowadays, Toxic Assets.

This may be a good time to withdraw from the stock markets and stash your money in gold. Because this time around, BSE Sensex will go barrelling down to the 5500 mark or lower, and stay below 7000 for a helluva long time.

Monoliths of the Indian economy like Tata enterprises, Reliance, Anil Dhirubhai Ambani Group etc will start revealing bad news in their quarterly results... bad enough to cause investors vomiting and diarrhoea. Don't allow yourself to be lulled into a sense of security by the currently bullish state of the market. Listen to some friendly advice, start selling and quietly move towards the exits before alarm bells ring and panic-selling starts.

Dear RTI Applicants and Appellants,

If the people of Maharashtra are forced to put up with a hearing-impaired Chief Information Commissioner, then the Chief Minister, Governor and others should always be flown around in a helicopter by a visually-impaired pilot. Phir hisaab barabar hoga!

Fellow citizens, let us have Dr Joshi removed from his post. We can do so by raising our voices in sufficient numbers.

DOWNLOAD WORD FILE OF LETTER: http://www.box.net/shared/2avmaqtte3
SEE PAGE 2 OF THE WORD FILE FOR POSTAL ADDRESSES

Section 17(3) of RTI says: …Governor may by order remove from office the State Chief Information Commissioner or a State Information Commissioner if he is, in the opinion of the Governor, unfit to continue in office by reason of infirmity of mind or body -- Section 17(3)(d).”

Dr Joshi is clearly infirm of body, and his infirmity is clearly damaging the RTI Act in Maharashtra, and affecting thousands of RTI applicants and appellants. His deafness is shielding corruption.

India is called a soft state and an easy target for terrorists because We the People are moral cowards. Even if the driver of our children’s school-bus is known to be a rash driver, or the conductor is a child-abuser, we do not raise our voices for their dismissal… until something dreadful happens to our children. Then we beat our breasts and lament what a terrible country we are living in.

We are “nice” people. We don’t want to be the “bad guys” who cause other people to lose their jobs. We are like the three monkeys with hands on eyes, ears and mouth.

Please stop. Please change.

Chief SIC Dr Suresh Joshi is smilingly carrying out the mission for which he was hired – to suffocate the RTI Act in its infancy. He does it with all the charm and good manners of a village priest who lovingly drowns a newborn girl in milk, This deaf and sweet-talking ex-bureaucrat, who cannot even conduct a decent hearing, is in overall charge of implementing the RTI Act in the proud State of Maharashtra.  He has been deliberately appointed because he loyally shields his masters in Mantralaya, and because his physical handicap evokes compassion and frustrates attempts at dialogue. With skilful evasion and diversionary tactics, he keeps up the appearance of being able to converse like a normal human being .

For the past 6 months, our group has been closely observing Dr Joshi’s hearings, studying his orders and trying to engaging him in meaningful dialogue every ten days or so.

The sum-total of our observations is:

1)  Dr Joshi often conducts hearings and meetings with activists without even putting on his hearing-aids.

2)  He makes appellants endlessly justify themselves – repeatedly violating Section 6(2).

3)  He rarely makes PIOs and public authorities speak in their own defense, and never makes them justify denial of information in writing – regularly violating sections 19(5) and 20(1) last para, which clearly state that the onus must be on the PIO to show that he acted reasonably.

4)  He routinely accepts PIOs’ lame excuses that are inadmissible under the RTI Act -- such as “files lost” -- without demanding supportive evidence such as copy of FIR filed, departmental correspondence etc.

5)  He conducts hearings as if they are arbitration proceedings. The PIO is never on trial to show that he acted diligently as per the RTI Act.

6)  There is no mechanism for recording what transpires at these hearings. He never takes notes that will assist him in passing reasoned orders.

7)  He passes loose and ineffective orders with no reasoning and no reference to RTI Act, and often contradictory to what has transpired during the hearings. He vaguely recounts the case history, and then concludes by saying, “This order is hereby disposed off.”

8)  Whenever Dr Joshi passes orders in favour of appellants, both he and the PIOs know perfectly well that the order is meant to be ignored. If the PIO is instructed to “give information within 10 days etc,” the instruction is never carried out, and the PIO is never penalized either.

9)  He has imparted many of his skills to other SICs such as Ramanand Tiwari, whose hearings we have also observed, and whose orders we have studied. What is described above is the Standard Operating Procedure at Maharashtra SIC, propagated by Dr Joshi. So he is not just a disease, he is a contagious disease!

Whenever he has promised some improvements, his promises have turned out to be empty words. We have been soldiering on month after month, hoping to bring about a change, but we have come to the belated conclusion that there is no hope at all. As long as Dr Joshi is in charge, nothing will change.

Please download and send this letter to Chief Minister, Governor and others in large numbers: http://www.box.net/shared/2avmaqtte3

We will rest only after Dr Suresh Joshi has been unseated!

JAI MAHARASHTRA! JAI HIND!

Warm Regards,
Krish
98215 88114