Not only the Honourable  Highcourt of Kerala but also  Govt Departments like  Secretariat of the  Legislature, Co-operative ,Revenue ,  Public Adminstation   etc are in a war against Right to Information . The latest battle ground is the legislative secretariat:

To understand the issue I request all of you to go through  the  order of  Kerala State Information Commission and  the response of  the  Legislative Secretariat  

Adv.D.B.Binu, Secretary, Human Right Defense Forum. preferred a second appeal against  the public information officer and the Applleate Authority of the Kerala State Legislative Secretariat .

The commission itself summed  up circumstances  of the appeal as follows

·        On 18.4.2008, the requester/appellant had made a request u/s.6 of the RTI Act, for two items of information from the State Public Information Officer (SPIO), Kerala Legislative Assembly, Legislature Secretariat, Trivandrum. 

·        The information demanded were:-., the video tape of the speech made by Shri.T.M.Jacob which was denied u/s.8(1)(c) of the RTI Act. ( The print copy of the speech, in its transcribed form, was provided to the requester by the PIO .) The SPIO of the legislature secretariat denied the request

·        An appeal was preferred before the Appellate Authority insisting for the video tape of the speech delivered by Shri.T.M.Jacob on 19.7.2005.  The Appellate Authority had found that the information could not be provided because it was an encroachment into the privilege of the legislature and this matter was considered by the Privileges and Ethics Committee of the State Assembly in its report dated 13.3.2008. 

·        Disatisfied with this decision, the requester/appellant had approached the State Information Commission

 The commission summed up the second appeal into three issues

Issue  No.(i):-

·        The definition of 'information per S.2(f) of the RTI Act would say that 'records' and 'data  material held in electronic form' are information within  the meaning of 'information' as defined in the Act. 

The  commissions clearly stated :

·        The RTI  Act  has further elaborated the word "record" and further defined it in S.2 (i) of the Act.  “ record” according to S.2(i) (c) is any reproduction of image  or images embodied in such microfilm (whether enlarged or not); and S.2(i) (d) any other material produced by a computer or any other device.  Therefore, video tape is an information  within the meaning of S.2(f), 2(i) (c) read with (d) of the RTI Act.  A video tape has not been defined as such, but definitely fall within the definition of the above said sub section for 'record'.  It is an audio visual record kept in an electronic form that could be played or exhibited and heard by any one.  Therefore, there was no dispute with regard to question that video tape is a form of record and now a days recording of the procedures in the House of Parliament and State Legislatures had become very common and live telecast was accessible and open to the World.  Therefore, the Commission finds that the first item of information demanded was very well within the meaning of RTI Act.

Issue  No.(2 ) &(3)

Whether S.8 (1) (c) is applicable in denying the information? And (iii) whether the requester/appellant is entitled for a video tape and approved copy of the video tape?          

            Commission responded like this :

·        The exemption section 8 of the RTI Act was drafted in such a way giving all possible protection to all the three Organizations of the Government in a democratic country viz., Executive, Judiciary and Legislature .  With regard to the protection of the prerogative of the Legislature and privileges of the Legislature,

·         S.8 had laid down the following dictum:

  There shall be no obligation to give any citizen "information the disclosure of which would cause a breach of privilege of Parliament and the State Legislature".   The privileges granted to the Parliament and the State Legislature are well defined and constitutional guarantees afforded to the Members of both the Houses.  Privilege is a prerogative, predominantly invested in a House and is available to each and every Member who is present in a House.   Article 105 of the Constitution declares to the World in unambiguous terms, the powers, privileges and immunities of State Legislatures and its Members.   The Guardian of the privileges and immunities of State Legislatures and its Members.

·        The Guardian of the privilege is the Speaker of the House or of the Parliament.  The Speaker of the House or Parliament is also the "competent authority" as per Section 2 (e) (i) of the RTI Act.  The competent authority means the Speaker in the case of House of People or Legislative Assembly of a State Union Territory for such Assembly and Chairman in the case of the Council of States or Legislative Council of a State.  So the Speaker is the ultimate Authority to decide the question of privilege and what all interest constitute privilege and what all things are not privileges.  And, the privileges as extended to a member of a House are essentially to enable the Member to discharge his duties and responsibilities as an elected representative of the "people” 

·        The SPIO had provided the transcribed, print copy of the speech of Shri.T.M.Jacob to the requester as demanded by him.  But had denied the Video picturisation of the very same speech of the very same Member.  The denial of the video tape was not justifiable because of the rational used in the denial was equally available for denying of the print copy also.  Having provided the print copy of the speech, the denial of the video tape of the speech is contradictory to the reasoning of the SPIO  

·        The SPIO would further say that whenever a speech or a submission is made by a Member of the House, the Speaker is armed with Rule 307 to expunge, edit, delete or remove any word, sentence or such other portions from his speech as he deems necessary to uphold the privileges and noble heritage of the House.  In other words, what is printed and transcribed is the approved speech of the Member after having satisfactorily scrutinized and edited by the Speaker, as per Rule 307.  So for item No.2, the information already provided was such edited transcribed, print copy of the request.  What prevents the SPIO  to provide the Video Tape of the very same print copy which he had readily disseminated? 

·        An audiovisual presentation now-a-days is not uncommon.  Every proceedings of the House are telecast alive and, the Speaker is approving the telecast of the entire transaction of the House.  In the circumstances, an edited copy of the Video Tape will just do no harm.  It is not at all an encroachment into the privilege, had it been approved for publication by the Speaker.   Prohibition for providing any piece lof information is to be made by the Speaker and it is unquestionable and unchallengeable.  If he has approved one portion of the speech, the same could be providing.  S.22 of the RTI Act shall have the effect notwithstanding anything inconsistent therewith containing in the Official Secrets Act, 1923, and any other law for the time being inforce in any instrument having effect by virtue of any law other than this Act.  Further, the recorded portion of the speech is an edited and approved portion and not unabridged information 

·        After all, the Constitution of India details the democratic process as practiced in this Country; the very same constitution has conferred freedom expression as a Fundamental Right on the "people" under Article 19(1) (a) and the Members of the Legislature only represent such "people" and, when a citizen as provided with the right to such information under the RTI Act, 2005 enacted, drawing strength from Article 19(1) (a) of the Constitution of India, such information as defined under Section 2 (f) under the Act (ibid) cannot be denied, on whatever institutional set up or deliberations, that be.

 So the commission passed the following order under the sign and seal of MR. Palat Mohandas  (Chief Information Commissioner) and  P.N.Vijayakumar (State Information Commissioner  )    on  10^th  of December, 2009  :                                                                                             

Therefore, the Commission finds that the requester/appellant is entitled for copy of the video tape of the speech of Shri.T.M.Jacob made by him in the Legislature on 19.7.2005.  The SPIO shall provide a copy of the same to him within 15 days of receipt of this order. 

The response of   Kerala  Legislative Secretariat to the order :

In a letter written in Malayalam by Ms  Jayalakshmi Amma , The SPIO to the SPIO  of  KSIC  and the petitioner  Mr.Binu ( the subject of letter itself  is   ‘ privilege issue in the Order of  KSIC  ) stated that the order of  KSIC is  violating  the priviages of the assembly and so it is referred to the Ethics Committee of the Assembly .

The tone of the letter is that the Ethics Committee is going to hang the Petitioner and the  Commission .

SO ALL THE INFORMATION SEEKERS  UNITE , WE HAVE NOTHING TO LOOSE BUT THE DARKNESS AROUND US ,  CONTRIBUTED EVEN   BY OUR “BELOVED” PEOPLES REPRESENATIVES .

Posted by sherfudeen