Excerpts from a presentation given by Biswajit Mohanty in Bangalore on 23rd August 2013. You can reach him for questions or comments at firstname.lastname@example.org.
What is Government?
This is a difficult question for an ordinary Indian citizen. He/she knows that Government is an omnipotent and omnipresent entity but is not exactly sure who “Government” is. When you want something from any government office, you will frequently hear the words … “Government will decide”. If there are dues/taxes to be paid, government reveals itself in various avatars … persistent Tax Inspector to the Assessing Officer who can make your life miserable! Government works or rather appears to work in an incomprehensible manner. In fact, every public authority tries its best to be faceless and discourages curious citizens from finding out more about its work. If you ask people to describe ‘Government’ you will hear:
- Slothful, Unaccountable, Opaque,
- Arbitrary, Hostile, Pessimistic,
- Authoritarian, Complicated, etc.
- En-Governance means how government decides and acts on environmental issues; how it discharges its duties prescribed under various laws and rules.
- En-Governance is at various levels – Range Officers, DFOs, Pollution Control Boards, Forest Circles, PCCF, Regional Offices of MOEF, State Secretariat, etc. However, this entire process is always shrouded in mystery and secrecy since lots of wrong things are done.
- Policy making in relation to the field of environment; decision making in granting statutory approvals under environment, forest and wildlife laws; enforcement activity to implement green laws; activity and expenditure on protection /mitigation measures, etc is “ En- Governance”
- You may compare the En-Governance to that of a ship crossing a stormy ocean! The government as a ship is rarely able to set a straight course, as various lobbies batter it from all sides just like stormy seas! The ship usually leaks due to corruption and invariably sinks before it reaches port, manifested in failure of government.
How can RTI Act improve En-Governance?
A responsive, accountable government will take decisions in public interest/compliance with laws of the land. You now have the right to know how the decision was taken and whether the needs of the situation were met. You can also know whether public interest/laws were upheld. The very realization, that public can demand access to such information about decision-making, makes public servants cautious.
Tips for Filing of RTI applications
- Ensure that only completed applications are filed and the fee of Rs.10 is paid.
- The application fee can be paid through Cash/Treasury Challan/Money Order/IPO.
- A better option is to pay through an IPO/Treasury Challan since the receipt can be attached to the form itself.
- If a PIO is not appointed or he is not present or refuses to receive your application, meet the Head of the Office and request him to accept your application.
- If you do not succeed even after all these efforts, send the application by registered / speed post with acknowledgement due.
- File a complaint with the State Information Commission and the highest official about the refusal to accept the application.
- When you personally go to file an RTI application, you need to meet the PIO only.
- Remember to obtain a dated receipt because the time period starts from this day. Do not return without the receipt.
What happens if you do not receive any response within the 30 days mandatory period?
- Give a grace period of 7 days, and file a complaint with the State Information Commission (SIC).
- If it is a public interest matter, then you may seek expeditious hearing of the matter by the SIC.
- A public interest matter is one in which you do not have any personal interest.
- However, if there is a response but you are not satisfied, you should move the First Appellate Authority (FAA).
- He is bound to give you notice of hearing though it is not provided in the appeal rules.
- You may attend yourself or authorise someone else. You can also file your written arguments to support your petition.
- You are entitled to receive a copy of the appeal order.
- Remember, there is a limitation period of 90 days for filing second appeal.
- Usually, PIOs in our State wait for the end of the mandatory 30 day period before they give a response.
- Section 7(1) states that information shall be provided as “expeditiously” as possible but in any case not later than 30 days.
- This should be challenged in those cases where information is of very recent origin and can be easily handed over quickly.
Disposal of your application
- Were you satisfied with the response? If not, you might have received:
- Part information;
- Information is denied though available with the office and is not exempted from disclosure under the RTI Act; and/or
- Wrong/misleading information is provided;
- You can seek a copy of the file note sheet of your own RTI application form from which you can ascertain how your application was dealt with.
- You can also know the name of the officer who has withheld information from your application file.
- Sometimes, file notings reveal that an officer has agreed to give the information, but was overruled by a superior.
- Reasons have to be recorded for denial of the information. Exemption claimed under 8 or 11 has to be supported by detailed explanation and justification.
- The note sheet will be of tremendous help in your complaint or appeal before the Information Commission.
Detection of corruption
What can you do if you come across clear cases of fraud or corruption?
- You could file a complaint with the head of the department or the vigilance wing /Lokpal seeking an investigation.
- You can pursue the matter by seeking to find the status of the case or complaint and what action is being taken for investigation and punishment of the culprit.
- You can also pass on the information to media for public information.
- Obtain EC/FC letters of various companies operating in your district and check compliances
- Check public expenditure on field works like compensatory afforestation, plantation, forest roads, water harvesting structures, CAMPA works, etc.
- Check enforcement action by pollution board officials/forest officials in case of violations
- Follow up on complaints lodged by locals against pollution or illegal forest cutting
Public authorities related to environment
- The Principal Chief Conservator of Forests
- The Chief Wildlife Warden
- State Pollution Control Board and committees like Designated Committee, Governing Body, etc.
- State Forest and Environment Department and statutory boards and committees like CZMA, SBWL, etc.
- State and Central Department of Mines
- District Collectors
- Municipal Corporations/City Development Authority
- Ministry of Environment – Regional Office and Central Office and statutory boards/committees like National Board for Wild Life (NBWL), Forest Advisory Committee, EAC, etc.
Objective: To assess transparency and accountability of grant of Environmental Clearance (MOEF & Pollution Control Board) and check levels of compliance and penal action.
At State government/Regional office level: Inspect files of PCB – NOC /Consent to Establish. This file will contain:-
- The proposal – whether correct facts have been mentioned
- The EIA study report – check if there are gross irregularities or concealment of material data;
- Assessment/site inspection reports- see that regulatory authorities have done a sound job of assessment of the project
- Clarifications sought and received – see that satisfactory clarifications were received
- Minutes of public hearing – cross check with ground facts of the actual hearing through news reports or eye witnesses whether hearing was fair – verify the names and addresses of the Persons who have been mentioned in attendance sheet
- Written objections from public/NGOs – examine how such objections were met by the PCB officials
- Final recommendation to issue EC – examine this opinion to ensure that it reflects material on record and there is adequate disclosure of likely impacts on environment).
After the project proponent satisfies the conditions imposed prior to CTE, the PCB issues Consent to Operate or CTO.
Objective: To assess transparency and accountability of grant of FC by MOEF and check compliance and penal action taken
At State government/Regional office level: Inspect files of the Nodal Section of the PCCF office which deals with the processing of the diversion proposal (DP) and examine:
- the DP including status/classification/ density of forest land/status of wildlife and position of corridors
- details of Compensatory Afforestation (CA)- area, its status, species
- clarifications sought and received from project proponent
- written objections from public/NGOs;
- site inspection reports; and
- recommendations for DP
You can ascertain the following information:
- study the DP and CA proposal to ensure that there are no gross irregularities or concealment of material data;
- cross check status of forest land with corroborative records;
- whether area is important as habitat for endangered wildlife
- whether any migratory wildlife corridors are being impacted
- examine written objections filed by public/NGOs;
- examine claims of forest dwellers under FRA;
- examine the compliance with all relevant circulars/ guidelines issued by MOEF under the FC Act, 1980 and rules
Using Section 4(1) (c) for accountability
Under this section every public authority has to: “Publish all relevant facts while formulating important policies or announcing the decisions which affect public.”
As noted above, the Public Authority has to publish relevant facts while announcing decisions which affect the public e.g., some illustrative decisions like:
- Permitting clearance of forest areas/environmental clearance
- De-notification of PA
- transfer and posting of senior officials
- Sanction of funds for public works
- major tenders for works and supplies
- upset prices for forest produce
- Use of CAMPA funds
You can ascertain if the decision was fair, unbiased and not an arbitrary exercise and is in overall public interest.
Using section 4 (1) (d) to seek answers Every public authority has to …
“provide reasons for its administrative or quasi-judicial decisions to affected persons”
- While accessing information, you may come across gross case of negligence of duties; or failure to take action though the violation has been recorded.
- In this case, you can file a specific complaint (not RTI complaint) with the department head and seek action.
- After four weeks, you may file an RTI application seeking the status of your complaint; action taken or reasons for non-action.
- If there is gross negligence, you may file a complaint for “improper conduct” with the state Lokpal.
- If prima facie information about corruption is available, you can also file a written complaint with Vigilance/CBI or CVC
Impact of use of RTI – Some Case Studies/Examples from personal experience
1) Transfer and Posting of Range Officers
- I First obtained information about the tenure and posting of Range officers in the Forest Divisions that had lot of mining activity;
- I analyzed this information and found that there were violations regarding tenure of some ROs.
- Some ROs were continuing beyond the normal tenure of 3 years up to 7 years;
- I Lodged a formal complaint about this with the PCCF;
- PCCF ordered and enquiry by the CF;
- Soon after, the three ROs were transferred out of the mining districts
Transfers as per guidelines:
- I wanted to find out if whether the transfer policy was being followed as per G.A. Dept. Letter no. 19538 dt. 29.7.1991 in transfers of Range Officers.
- The office admitted that the transfer principles were not complied with in all cases.
- Reasons in cases of deviation of the guidelines were not recorded and approval of the Minister was not obtained.
- I filed a complaint with the Secretary of the Department who issued orders to strictly follow transfer guidelines.
- Now transfers of ROs are done as per guidelines.
- Requests from politicians or ministers for transfer and postings are being politely refused if not within the rules
2) Illegal Mining by User Agencies
- I obtained RTI information related to mining from several public authorities including PCCF office, Steel and Mines Department and Pollution Control Board
- I examined the approved mining quantity, actual mined quantity and whether consent to operate has been granted by PCB.
- I found field reports by the Regional CCF, MOEF pointing out major violations by the user agencies and requesting action by state government.
- I also found two major mining groups, Rungta group and Essel Mining (Aditya Birla group) had grossly violated the CTO annual working quantity limits of PCB/worked without CTO.
- The total value of excess minerals mined was about Rs.15,000 crores during the mining boom period.
- No closure notice had been issued to them in spite of specific recommendation by field officers and the Designated Committee of PCB
- I Lodged a formal complaint with the Chairman of PCB in December, 2007 seeking action against officers who failed to close down the mines.
- Complaint under investigation by PCB as revealed in RTI information given in March, 2009
- Generated seven news stories in local media and national English daily about the breakdown in governance.
- The most important impact was raids by the Vigilance Police on mines belonging to the Rungta group after stories were published in the media.
3) Notification of “forests”
- RTI application was filed with the Revenue Dept. about the total area recorded as “forest” in their records and the areas pending for declaration as RF or PF.
- The application was transferred by the public authority to all the 30 district collectors of Orissa.
- It was learnt that a huge amount of forestland (more than 10,000 sq. kms.) was proposed for notification by the forest department.
- Some of the proposals were pending for more than 30 years as revealed from the replies.
- After the matter was raised, now the forest settlement officers have now started clearing the pending proposals.
4) Filling up of vacancies
- Through an RTI application, I obtained information about status of filling up of vacancies in forest guards/foresters posts in six wildlife divisions of the state.
- Orders were passed by the CEC with regard to sea turtle protection to fill up vacant posts so that sea patrolling could be carried out properly
- Also obtained the name of the officers who had neglected their duties to carry out the CEC orders.
- A formal complaint about non filling up of posts was lodged with the Chief Secretary demanding action against officers responsible
- Now the posts are being filled up and almost 70 % is over.