Monday, March 17, 2008

ASI’s reply to my RTI application: Speaking Order & the right to non-comply with directions

My continuing Right to Information battle with the Archaeological Survey of India on why the Government suspended two officials of the ASI following the controversy over the Sethusamudram affidavit has elicited one more reply. This time, the then Appellate Authority who had earlier agreed with me and directed the Central Public Information Officer of the ASI to provide the information I requested, has been overruled by his successor, Mr.D.S.Gehlot, who appears to have recently taken over as the Appellate Authority in the ASI. Mr.Gehlot’s order dated March 14, 2008 is interesting because it says he found the order of his predecessor not a speaking order, not mentioning either the fact, or reasons and silent about how the said information would not qualify for exemption under section 8(1)(h) of the RTI Act.

The new order further says: “The Ministry of Culture has ordered an investigation in the matter and providing copy of the report submitted by DG,ASI at this stage is likely to affect the course of inquiry, which has been initiated under the CCS (CCA) Rules. Since the inquiry is still on, all the original papers related to the case are with the Ministry of Culture. The Nodal Officer of the Ministry of Culture was requested to take a decision about providing the information and take appropriate action. The CPIO Ministry of Culture concurred that the information related to the matter may be exempted under Section 8(1)(h).”

It adds: “The said exemption does not deny the information completely/forever but only till the matter is under investigation. The information sought by the applicant may be supplied as soon as the process of investigation is over.”

I agree that any order should stand the test of legality, fairness and reason. But I find the new Appellate Authority’s order difficult to comprehend. First, the RTI Act does not provide for amendment of order by one Appellate Authority by his successor Authority. Secondly, the failure of the Appellate Authority to provide a speaking order does not give freedom to the CPIO to non-comply with the AA’s order. If the CPIO is dissatisfied, then he should, one would expect, approach the CIC with a complaint or an appeal. But the Act does not contemplate that option to the CPIO. The Act is silent on this.

The Appellate Authority does not adjudicate between two disputing parties, in terms of hearing them. The AA simply goes through the RTI’s applicant’s appeal against the CPIO’s decision, and examines whether the CPIO’s decision was in conformity with the Act. In case the AA rejected my appeal without a speaking order, then how would I exercise my right of non-compliance with the AA’s Order? I have the option only appealing against the AA’s order, if I am dissatisfied. Therefore, to permit the CPIO to non-comply with the AA’s order, because it is not a speaking order, is likely to defeat the very objectives of the RTI Act, and its appeal mechanism.

Secondly, the new AA agrees with the Government that the matter is still under investigation, whereas one would assume that with the suspension order being issued against the two officials, and the Government having already submitted a revised affidavit in the Supreme Court in the Sethusamudram case, the so-called investigation must be already over. What sort of investigation is currently on? I am sorry to say the new AA’s order suffers from the same absence of “speaking order” which was cited to overrule the previous AA’s order. Once the report is submitted by the DG, ASI, it marks the completion of investigation, and the basis for the disciplinary action against the two officials. If the investigation is incomplete, then the suspension order must have clearly said, they were being suspended pending investigation. That was not the case.
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