A RTI googly from Dr. Kardam


In a googly under the RTI Act, Dr. Kardam, Deputy Controller of Patents & Designs and also the Appellate Authority under the Right to Information Act, 2005, at the Intellectual Property Office, has effectively killed the application of the RTI, 2005 to information held by the Patent Office, Trade Mark Registry & Geographical Indications (G.I.) Registry. Image from here.
In a recent decision, available over here, Dr. Kardam has ruled that the RTI Act, 2005 will not apply in those cases where existing IP legislations provide for a mechanism to request the IPO for information. This particular decision contradicts Dr. Kardam’s earlier decision, available over here, where he had ruled that the RTI Act, 2005 over-rules all existing legislations and that the Patent Office could not compel a citizen to apply for information only under the procedure prescribed under the Patents Act. In short, it was the prerogative of the citizen to choose his mode of procuring information. Of course, certain information like certified copies can not be procured under the RTI Act in any case. 
Before proceeding any further, it may help to recount the genesis of this particular decision. 
In February, Sumathi had filed a RTI Application with the G.I. Registry requesting for all the information pertaining to the G.I. Application for ‘Darjeeling Tea’. The intention was to use the information for our research and also to make it available, in a scanned format, for all of our readers. The ‘Darjeeling Tea’ application is particularly important because it is considered by many to be India’s first successful venture in the field of G.Is. 
The Central Public Information Officer (CPIO) at the G.I. Registry – Prashant Kumar S. Bhairappanavar – had consented to giving us all the information. He informed us that the information that we requested had run into a total of 659 pages and that we would have to pay him a total of Rs. 6,950 towards photocopying charges i.e. Rs. 10 per page. Anybody who has filed a RTI Application with the Central Govt. must be aware that the cost of photocopying a single page is actually Rs. 2 and not Rs. 10. This amount is specified by the Central Govt. in the rules drafted under the RTI Act, 2005 and which is available over here. In short the G.I. Registry was charging us 5 times the prescribed cost under the RTI Rules. This when the Patent Office and Trade Mark Registry were charging us only Rs. 2 per photocopy. Obviously aggrieved by the decision, we filed an appeal before Dr. Kardam, who is the Appellate Authority for all appeals against the orders of the CPIO at the G.I. Registry. Annexed to the appeal was a copy of the Right to Information (Regulation of Fee and Cost) Rules, 2005) notified by the Central Govt. under which the cost of photocopying was meant to be Rs. 2. We were under the impression that this was a routine appeal which would have been definitely allowed. 
Imagine our surprise when we get a reply, available over here, informing us that a recent decision of the Central Information Commission (CIC) had ruled that the RTI Act would be inapplicable in cases where there was an existing procedure to obtain information from the concerned authority. We were therefore informed that we were required to pay the fee under the G.I. Act & Rules to receive our photocopies. We have also been, independently, informed that the CPIOs at the IPO have every intention of using this particular order of the CIC to deny all RTI requests pertaining to information which are covered by pre-existing mechanisms. 
There are two problems with this order: 
(i) Dr. Kardam was hearing this particular case as an appellate officer. He cannot introduce new grounds at the Appellate stage. In this particular case, the CPIO at the G.I. Registry had never denied the applicability of the RTI Act, 2005 to the information requested by us. He had agreed to give us the information but only at Rs. 10 per page. Our appeal was on the limited point of the cost. Instead of deciding whether the CPIO was correct in charging Rs. 10 per page, Dr. Kardam went ahead to manufacture a new ground, at the stage of appeal, to deny us information under the RTI Act, 2005. In effect he has overruled the CPIO’s own implied finding that the RTI was applicable to the information that we had sought. There was absolutely no need for Dr. Kardam to go out of his way to introduce this new ground of denial at the appellate stage. 
(ii) Just 3 months ago, on the 3rd of January, 2012 Dr. Kardam issued an absolutely opposite order in an appeal filed by Sai Vinod. He has blogged about the entire application over here. In that decision, Dr. Kardam accepted Vinod’s argument that the CPIO’s order was untenable since the CIC had ruled in the case of R.S. Mishra v. CPIO, Supreme Court of India that the RTI Act would over-rule all existing procedures to request information from govt. offices. That order of the CIC, which is available over here, was authored by Shailesh Gandhi who has given an extraordinarily detailed 8 pages order on why the RTI Act would over-rule existing mechanisms. The latest order of the CIC, in the case of V.K. Malik v. CPIO, Tiz Hazari Court, which has been quoted by Dr. Kardam in his reply to our appeal, is available over here. This order which has been authored by Annapurana Dixit is a grand total of 3 paragraphs (not pages) and applies only to cases where an applicant requests for certified copies. This order does not apply to mere photocopies. Unlike a mere photocopy, a certified copy has to be checked by an officer for its accuracy since certified copies are accepted as evidence in courts of law. Mere photocopies of documents are not accepted as evidence by themselves. We asked for only photocopies and not certified copies and hence the decision cited by Dr. Kardam is inapplicable to our request for information. 
Conclusion: We will be filing for a ‘review’ of the decision by Dr. Kardam himself and hope that he rectifies this oversight without forcing us to drag this case before the CIC. If required, we will drag it to even the High Court. 
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Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

10 comments.

  1. Anonymous

    It has been noticed that the CPIO and FAA in respect of IP Offices India, they have been acting shaky and feeling uncomfortable in divulging the information asked for by the RTI applicants. May be this is the position in other departments as well and this department may not be the only department doing so. Since we deal with this department, we know it and point out. However, I had occasion in dealing with the Food Processing department who were too willing to co-operate in every respect. Even to the extent that when I asked for some information, they gave me which prompted the supplementary information to be asked for. On visit to the office (and that too not be me, the applicant but the court clerk), the office people willingly shown the register itself and satisfied the court clerk, considering that the information required would be given in any case if the further application under RTI Act is filed which would have wasted the time and money on the part of the department. It might have taken less than five minutes from the time calculated to find the register, open up the page and making the position understand to the court clerk to his satisfaction. Contd/…

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  2. Anonymous

    Contd/ from earlier
    Coming back to IP Office, I have noticed that the FAA (earlier Mr. Parmar and now Mr. Kardam) are hand in glove with the CPIOs and have been disposing off the appeals by stating that the CPIO has been busy and has not been able to give information in time and that he/she has been asked to give the information, which never came. The FAA has never taken any coercive steps prescribed under the RTI Act.

    Knowing the mindset of Mr. Kardam, I know he will not review his order, but at the same time I would suggest that the review application should in any case be filed. I know that Mr. Kardam would perhaps go in the technicalities as to whether he has the power of review or in other words if at all review lies. Then is there any time frame within which he is expected to dispose off the review petition if filed? The appeal filed before him is to be disposed off in a month.

    Should we not file the RTI application(s) in each of the IP Offices to ask what charges they are charging for photostating under the RTI Act. I read in one of your bogs earlier that in Delhi office the CPIO had put up the notice that the application under RTI Act would be accepted with the fee of Rs60/-. Upon filing of RTI application with respect to the charges, the reply was given that the fee under RTI Act is indeed Rs10/- however, the further charges of Rs50/- is for Speed Post. In that very blog it is also stated that the speed post charges for Local delivery in Delhi is Rs12/- and this way the IP Office (read CPIO) is earning Rs38/- each application for the Government. More than even the basic fee under the RTI Act. One thing is for sure, that the Delhi office is asking for Rs2/- for photostating per page under the RTI Act. Of course they may now start asking for Rs10/- being encouraged with the present decision of Mr. Kardam which you have mentioned. More particularly when I notice that the same CPIO who had asked for Rs10/- is now posted in Delhi office (though he is not the CPIO in Delhi).

    The amount is not going into the pocket of CPIO. But this is used as a tool to discourage (read deny) the applicants. Discouraging/reducing the RTI applications was also the motive of CPIO Delhi when she had put up on the notice board for the fee of Rs60/-.

    I have noticed that some of the CPIOs names have changed as per the information available on the official website of the IP Office including the Appellate Authority. Now there are many Appellate Authorities under the Patents Act, Mr. Amar Prakash is shown as Appellate Authority under the Trade Marks Act and so on. Mr. Kardam is shown as Appellate Authority for Patents in Delhi. Earlier there was only one person as Appellate Authority for whole of the IP Office namely Mr. Kardam. Mr. I.S.Juneja the Senior Examiner is shown as the CPIO.

    You must take this issue which you have raised in the present blog to its logical conclusion and if need be please take it to High Court or even above. Yes it would take time, but then better late than never. SO KEEP IT UP.

    Reply
  3. Anonymous

    Govt blindly introduced RTI Act but failed to recruit officers to handle RTI applications. Nowadays govt officers esp of IPO’s are already working in a de-motivating environment where there is heavy workloads without any promotions, incentives etc.
    Inspite of this situation few officers are more generous enough to take added responsibilty and workload of RTI applications.
    Unfortunately, when some undecissive situation comes in, concerned officer need to fight with legal system or end up with monetary fine instead of getting incentives for handling added workload of RTI applications. I pitty them.

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  4. Anonymous

    @ Prashant: Any Govt officer would not accept his mistake. There would be a cover up job now. Hope documents related to the RTI dont go “missing and untraceable” now.

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  5. karl marx

    Karl marx([email protected])
    You have mis-interpret the RTI Act in your favour. What was done by Mr. Kardam is correct. The expressions in your blog reflect that you are not having any experience in court or any tribunal and your status is below a lawman, and you are not expressed your veiw like a law knowing person. If any information is available to the public under a particular law you cannot invoke the RTI Act. The pre script of the RTI Act is to obtain information from public authority in which there was no expressed law to secure information. The principle of prospective overruling was done by Mr. Kardam. After the decision In Malik vs. Tis hazari court (28.02.2012) he is at the position to follow the rule laid by the information commission. The subordinate official need not go throw whether it is 3 para or pages, he is bound to follow the precedents in current situation. The appellate officer is having the discretionary power to overrule his own findings. You may have a right of expression but it should not in abuse an adjudicating body ie. CIC. If you are having courage and merits better go for an appeal before higher forum and better avoid such kind of begging conclusion seeking review. Such conclusion, seeking review will under estimate you efficiency and I feel that you are begging before the official to get favorable orders. Under RTI there was no difference that the information need by is going to be used for commercial or for research. Public documents are not waste pamphlets to give it to any body asking photocopy, all the copies of document supplied by the public authorities and judicial are deemed to be certified copies. Moreover you have mentioned that for some research purpose you have needed the document. But the person seeking the information mentioned by you is a mouth piece of corporate people and she never served for downtrodden. I don’t think that the information is not for any research purpose only for commercial use she may need it. That’s why you are firing on somebody.

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  6. karl marx

    You have mis-interpret the RTI Act in your favour. What was done by Mr. Kardam is correct. The expressions in your blog reflect that you are not having any experience in court or any tribunal and your status is below a lawman, and you are not a law knowing person. If any information is available to the public under a particular law you cannot invoke the RTI Act. The pre script of the RTI Act is to obtain information from public authority in which there was no expressed law to secure information. The principle of prospective overruling was done by Mr. Kardam. After the decision In Malik vs. Tis hazari court (28.02.2012) he is at the position to follow the rule laid by the information commission. The subordinate official need not go throw whether it is 3 para or pages, he is bound to follow the precedents in current situation. The appellate officer is having the discretionary power to overrule his own findings. You may have a right of expression but it should not in abuse an adjudicating body ie. CIC. If you are having courage and merits better go for an appeal before higher forum and better avoid such kind of begging conclusion seeking review. Such conclusion, seeking review will under estimate you efficiency and I feel that you are begging before the official to get favorable orders. Under RTI there was no difference that the information need by is going to be used for commercial or for research. Public documents are not waste pamphlets to give it to any body asking photocopy, all the copies of document supplied by the public authorities and judicial are deemed to be certified copies. Moreover you have mentioned that for some research purpose you have needed the document. But the person seeking the information mentioned by you is a mouth piece of corporate people and she never served for downtrodden. I don’t think that the information is not for any research purpose only for commercial use she may need it. That’s why you are firing on somebody.

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  7. Anonymous

    Prashant, your argument about the incorrect application of V.K. Malik is spot on and there is no counter to it. This seems to be a case where the Controller has used the “latest” judgment to deny information to the applicant. However, it is not the case that a ground has been manufactured.
    This tussle between two parties involved in a judicial system evolves the system further.
    I would request you to keep your excellent logic impersonal and not direct it at individuals.

    Reply
  8. Anonymous

    It seems that so called Karl Marx and anonymous @10.52pm are the officials from the IP Office or well wishers of Mr. Kardam or may be he himself. Whosever they are, they are wrong. Please file the review petition as you have drawn out in your blog of today under the title The review petition: Will Dr. Kardam stop the IPO from slipping back into the dark ages?

    Reply
  9. yaavarumkelir

    Mr Prashant, the argument put forth by you that the latest order of CIC pertains to obtaining certified copies of judicial proceedings whereas the earlier order talks about photocopies. This is a valid and vital argument to pursued. Certainly, photo copies and certified copies are on differential footing and have diffrent evidentiary values. By pursuing the further appeal things will become clear.

    Reply

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