Q.1. I believe the Competent Authority in an office should be the head of an office in every case ( Clause 2 ). For instance, in BDO office, the BDO himself, in a Collectorate, the Collector himself and the like. If any junior officer is made the Competent Authority, people's right to information has the chance to flounder. Because a junior officer does not possess enough authority to decide and dispose of the request for information.
Q.2. As regards the right to inspecttion, in the Consultation organised by CARE, we had about 4 hour long discussion on the word 'inspection' ( Clause 2 d and 3 a). Let's not get stuck up at the word 'inspection'. In its place we may use the word 'perusal'. But, I don't understand, why justice Mishra objects to a citizen's right to get a photocopy, to take an extract or notes manually etc.In view of Justice Mishra's apprehension, while operationalising the 'right to information', every office can assign a person with the job of helping out a citizen while the latter takes the extracts or notes manually from a file or a register. It is however wrong to object to this provision in the Draft Bill on the ground that it might be misused by the applicant for information. As Justice Mishra knows, a law is not made keeping the criminals or deviants in mind, but to make the life easier for the law-abiding citizens.
The reason behind our insistence on the citizen's right to see the public records is that in Rajasthan, where the RTI was enacted following the MKSS movement, the Government officials in a Block were hesitant to show the Muster Rolls to the villagers on the pretext of the Official Secrets Act. But with the right to information having been legislated in Rajasthan, a common man is now able to check the Muster Rolls for himself.
In our State, we need to ask ourselves, whether a common villager has the right or not to know how much money has been entered against his name towards wage payment in the Muster Rolls maintained in Block Offices. I think the right to check the registers of such nature is a legitimate provision made in the Draft Bill.
REPLY BY JUSTICE SRI MISHRA TO SUSHREE BIRAJ SWAIN
p>Perhaps my young friend who raised the question just now spoke about something which I did intend. I did not speak about who a Block Office should be the competent authority to give information, the BDO or Head Clerk. What I said is that the Act should take only Governmental agencies as Competent Authorities.Another speaker friend ( Mr.Manmohan Praharaj, IG, Orissa Police) said that the Bill should provide for how the information is to be gathered and stored, so as to be disseminated to the public subsequently. It's a very pertinent point, which I didn't speak about in course of my speech.
Look at the provision of the Bill, which says that some information shall be provided within 48 hours. How is it possible? Suppose an application for information is submitted. The person who is in charge of giving the information can give it by post. But as you know, a letter by post may reach you after 30 days of posting. If you make a query in the post office, they would say that they do not know anything about it. So, if you want to make the Act effective, cooperation of every body shall be necessary. One organisation or another shall not be able to deliver the good. A friend told that so many Acts are being passed but their implementation is a big problem. It is very easy to formulate a good Act and with good intentions. Say, for instance the Dowry Prohibition Act is now in operation but everybody reads in the newspapers about 4 to 5 dowry deaths a day. My point is, we should be practical and should not go for an Act which cannot be implements, and on the other hand shall become a burden on the Government or people. Ultimately, the people shall be harassed.
If a person wants to know how much wages he got against the service he delivered, yes, he should get it, but if he is given the freedom to check ( inspect ) the register, he by holding a pencil in his hand can change P to A or A to P (P-for present and A-for absent).
Reaction by Sushree Biraj Swain:
She wanted to speak again something, which was not allowed by the Chairman due to paucity of time.
I would like to comment on Justice Misra's observation, "by no stretch of imagination should we allow a citizen's 'Right to Inspect' the official documents and take notes and extracts thereof or taking samples of materials etc." as a provision in the proposed Orissa Right to Information Act". It is an irony that, now the Indians are trying to snatch away from their brother Indians themselves, the very rights which were once provided by the British rulers through various laws and statutes introduced by them. For instance, the Indian Evidence Act 1872 in its Sections 74-76 conferred on every person 'the right to inspect any 'public document' available with any wing of the sovereign authority executive, judiciary and legislative. The public document as defined in the said Act is not only a record of the acts but also records forming the acts. When this statutory provision of citizen's right to inspect a public document is already there in our country for last 130 years and when Justice Mishra himself must have dealt with these provisions on several occasions in his long judicial corner, how is it that, he abhors the idea of keeping this provision in the Orissa Draft Bill on Right to Information?
JUSTICE SRI MISHRA: I don't think, there is such a provision of 'right to inspect' in the Indian Evidence Act 1872.
SRI C.R.BEHERA
Justice Mishra says that, there is no such provision. I can show the provision later on, since I don't have the Act with me right now.
Let me tell a few words about why this provision for 'right to inspection' is so important. As you might know, when the Narmada Dam was going higher and higher without the necessary rehabilitation programmes for the displaced people being undertaken, Ms Medha Patker of Narmada Bachao Andolan appealed to the Supreme Court for giving them the 'right to inspect' the Dam site. But the Supreme Court refused to grant this right on the grounds of Official Secrets Act, bypassing thereby the provisions of Evidence Act for 'right to inspect'. Ms. Arundhati Ray criticized the said Judgment of the Supreme Court and had to undergo imprisonment for her alleged Contempt of Court. If the apex court of the country, or for that matter any subordinate judiciary behaves in similar fashion, then every body here would not hesitate to be an Arundhati Roy. So the 'right to inspect' a public document, as mentioned in the Evidence Act should be there in the proposed Right to Information law in Orissa.
MR. SOURYA SUNDAR DASH, ADVOCATE AND CHAIRMAN OF THE SESSION: Mr.Behera, please pinpoint as to what is your question?
Sri C.R.BEHERA: I reiterate my dissent with Justice Mishra's objection to the expression 'right to inspect' contained in the Orissa Draft Bill.
JUSTICE SRI MISHRA
The little law that I know is that the Evidence Act does not come into operation unless there is a litigation in the Court. If a petition is filed in the Court, the Court in certain cases may permit the inspection to be conducted. There are certain other provisions that restrict this provision of Evidence Act. You referred to a judgement of Supreme Court, which didn't permit inspection. That is a different matter. But simply on the strength of Evidence Act, you can't inspect a public office. If you want to inspect a public document, there must be a litigation pending, an application made and moreover, the court must have passed an order for the inspection to be held. And not otherwise.
SRI SOURYA SUNDAR DASH
Now let me say a few words supplementing what Justice Mishra said. Why to speak of Evidence Act? There are also provisions in the GRCO Civil and Criminal and High Court Rules, according to which you may go to Registry, pay a very nominal fee of Rs.3/- or even less, and then get the concerned documents inspected in the presence of the Registrar or Deputy Registrar ( At this stage, Justice Mishra added, " as a party to a pending case" ). Yes, as a party to the pending case. Thus there is a provision.
But let me answer your question in another way. Suppose there is family dispute between Mr.X the husband and Mrs.Y, the wife. But somebody else wants to inspect the documents of Mr.X and MrsY. I don't think, there is provision anywhere to allow such inspection to be held. The basic principle is that there has to be an element of public interest involved in the matter under inspection.
SRI C.R.BEHERA
For lack of time, I will not speak anything more, but maintain my reservations on what was told by Justice Mishra and Chairman Mr.Dash by way of explanation of the provisions of Evidence Act 1872.
INTERACTION WITH JUSTICE SRI MISHRAIn the matter of 'right to inspection' and 'right to take samples', I want to say that the opinion of Justice Mishra seems to be a confused one. In my view, the Orissa Draft Bill in its Clause 2 (d) has rightly provided for such rights taking into account the current scenario of our society marked by rampant corruption and huge indebtedness of the State. Especially Orissa State has now a debt of more than 25000 crores.
The people as well as the people's representative have a right to know, how and whether the money of different projects was properly utilised and how much money out of this has been misappropriated by the corrupt bureaucrats with the aid and assistance of their agents and contractors. I think this is the main rationale behind the present Braft Bill on Orissa Right to Information, on which we have been invited to speak. We should deliberate on whether the provisions made in the Bill for right to inspection and taking of samples are sufficient or we need to add anything thereto, or the language of the provisions is proper and appropriate for the purpose. In my view, the Bill should contain explicit provisions for complete transparency of transaction of public money, whether it is spent by a government agency, an NGO or a Contractor. All the agencies who have spent away the borrowed money of Rs.25,000/- crores sanctioned on account of different projects and have thereby pushed our State into a huge debt trap should be made accountable before the public. So, if we cannot ask for information from the Contractors or such private agents employed by the Government about the information relating to the manner of expenditure of public money, how can we know the truth? In regard to Justice Misra's objection to 'taking of samples', I would say, he has been confused. Sample does not and should not mean breaking a bridge and taking a portion of it as a sample. It means taking the sample of cement, rod or brick etc used in the construction of a bridge or a building. The purpose is to ascertain, if any substandard material has been supplied for the construction of a building or bridge.So I support the provision for right to inspection and taking of the samples as mentioned in the Orissa RTI Draft Bill ( Clause 2 d. ).
REPLY BY JUSTICE SRI MISHRA TO SRI MADHUSUDAN PANDAMr. Panda perhaps tried to interpret what I said, to suit his purposes. Why did I speak about the samples of a building or a bridge? Unless you take extreme examples, you can't analyse asto whether a word is meaningful and purposeful or otherwise. You are trying to abridge the word 'sample' into a piece of rod or a bag of cement. But apart from this, one can take any sample. As you might know, there are other laws to prevent corruption, under which you can take the sample, get it analysed and examined, find the culprit and get him punished.
But, if a contractor has brought a ton of rods, and every one goes and collects a piece, then his whole stock shall be finished, by giving samples. So let us consider, what is practicable and realistic. I did not say that there should be corruption. You said that there is corruption everywhere among all strata of population. Nobody can say that you are not corrupt nor myself. The situation has become like that. I only offered my own comments on what should be the provisions of the bill. You can offer your comments on the same. You should neither compel me to accept your views nor should I compel you to accept my views.
Whether this Bill is meant for the benefit of the general public or for Government agencies only.
REPLY BY JUSTICE SRI MISHRA TO SMT. BILASINI PATNAIK
As I told, this Bill should serve the public interest only. The Act must therefore confine its Competent Authorities to the Government agencies only, to start with. That is what I have been saying from the beginning.
QUESTION BY SMT. BILASINI PATNAIK TO JUSTICE SRI P.C. MISHRA
If I have heard properly, Justice Mishra wants the Act to be restricted to some categories of public authorities in its application.
REPLY BY JUSTICE SRI MISHRA TO SMT. BILASINI PATNAIK
I said that the information intended under the Act should relate to a specific area and to a specific subject, so as to serve the interest of the general public.