How is the Modi govt botching up the RTI Act?

“If anyone wants to run a government in an unaccountable manner, they have to first destroy institutions of accountability,” says RTI activist Anjali Bhardwaj.

Ashlin Mathew

The finance ministry stated in Parliament this year that it would not disclose details of corporate loans written off to the tune of ₹2.4 lakh crore by public sector banks

• The Prime Minister’s Office (PMO), in response to a Right to Information (RTI) applications, stated it would not reveal details of PM’s foreign travels as it violated his privacy.

• Applications requesting details on demonetisation are also regularly rejected, so are questions on Swachh Bharat.

In states such as Andhra Pradesh, tribals living in Vishakhapatnam are denied land record details. Queries regarding income tax (IT) returns of the former Tamil Nadu Chief Minister Jayalalithaa after her conviction were rejected as well. In Delhi, applications requesting caste certificate details have been sent back.

But undeterred by such rejections, around 60-80 lakh RTI applications are still filed every year in India.  Indeed, ever since the NDA government came to power in 2014, there has been a systematic attempt to weaken the Act and render it ineffective.

Posts of commissioners, including that of the Chief Information Commissioner (CIC), were lying vacant in several states leading to a backlog of applications. The Centre has also been attempting to dilute the RTI Act.

According to a report released by Satark Nagrik Sangathan (SNS) and the Centre for Equity Studies (CES) for the period January 2016 till October 2017, there were four commissions which were not functional for varying lengths of time — Andhra Pradesh, Telangana, West Bengal and Sikkim. In the absence of functional commissions, information seekers have had no reprieve under the RTI Act if they are unable to access information as per the provisions of the law.

Vacancies in Information Commissions

Additionally, three states do not have a Chief Information Commissioner. The State Information Commission of Nagaland has been without a Chief Information Commissioner since September 2017; the Gujarat Chief Information Commissioner retired in January 2018 and the position is currently vacant.

The Chief Information Commissioner of Maharashtra retired in April 2017. One of the information commissioners has taken up additional charge of the chief commissioner, although there is no such explicit provision under the RTI Act, 2005. The government is yet to appoint a new chief.

Four months after the NDA government came into power, in August 2014, the Chief Information Officer of the CIC retired. It was a routine retirement; the government already knew that he was about to retire, but they refused to make an appointment to that position.

“Despite all of us writing to the Prime Minister and requesting for the appointment to be made, they refused to make any appointment. Finally, citizens had to approach courts. It was only when the matter was heard in the Delhi High Court that a chief was appointed. But, by then 10 months had passed. In the meantime, the financial autonomy of the CIC and the functioning suffered,” points out Anjali Bhardwaj, co-convenor of the National Campaign for People's Right to Information and a
founding member of Satark Nagrik Sangathan.

The Chief Information Commissioner looks at all the important cases dealing with public authority, including the Prime Minister’s Office. So, if the PMO or the Defence secretary did not part with information, applicants could not get their case heard at the CIC.

The Prime Minister would normally attend the annual Information Convention hosted by the CIC. But in 2014 there was no convention organised because there was no chief. After the chief was appointed, the Convention was organised in 2015 after much delay but Prime Minister Narendra Modi did not attend. In 2016 again, he did not attend the RTI Convention and in 2017, the commission refused to hold a Convention at all, but then the NCPRI held a convention in Bhubaneswar.

“Whatever one might say about former Prime Miniter Manmohan Singh’s address at these RTI Conventions, including a statement that ‘RTI was being used frivolously’, but at least when the PM comes, people get to know that the government is serious about Right to Information,” pointed out an RTI worker.

The Selection Committee of the CIC is chaired by the PM and comprises a minister of the Union Government and the leader of the Opposition. And now there are four vacancies at the CIC and this year, in 2018, four more Commissioners will retire — Yashovardhan Azad, Sridhar Acharyulu, Amitava Bhattacharya and the chief RK Mathur. Mathur had said that he had communicated to the government about the vacancies, but he hadn’t got any response regarding filling up these vacancies.

“So, the bottleneck is the PM not calling meetings and making the necessary appointments,” said Anjali Bhardwaj.

With so many vacancies, the pendency of the cases has been increasing. “Currently, there is a backlog of about 25,000 cases in the CIC and this is after the CIC is returning a number of appeals. And that is a problem. Under the RTI Law, if the appeal is not properly written, they can return these appeals. But, given the background of the people who file these RTI applications, it is unfair to send back these appeals and complaints,” says Bhardwaj.

“If it is a person requesting for their old-age pension and living in a slum, if you send back their complaint, they will never be able to come back. This never used to happen before 2015. We have now approached the Supreme Court and the matter is likely to be listed soon. But, the problem is why should citizens have to go to court every time for routine appointments,” she wonders.

The experience in states

The Kerala Information Commission has been functioning with a single commissioner since 2016. As of October 31, 2017 nearly 14,000 appeals and complaints were pending with the commission. In 2016, the High Court of Kerala set aside the appointment of five information commissioners stating that the selection process was flawed.

The court noted that no criteria had been laid out for short –listing candidates, and the entire selection process was vitiated. Of the persons chosen, one was a primary school teacher, another a lawyer in the district court and the third a LIC Development Officer.

The Odisha SIC is functioning with three commissioners despite having a pendency of more than 10,000 appeals and complaints as of October 31, 2017.

The report states that around 2,76,405 appeals and complaints were registered, and 2,14,809 were disposed, between January 1, 2016, and October 31, 2017, by 23 information commissions. The information commissions of Andhra Pradesh, Bihar, Madhya Pradesh, Maharashtra, Rajasthan and Tamil Nadu did not provide information under the RTI Act regarding the number of appeals and complaints dealt with by the ICs.

Among other problems, non-functional ICs result in a huge backlog of appeals and complaints and the consequent long delays, as is evident in the case of the West Bengal and Kerala SICs, where the waiting time is estimated to be 43 years and 6.5 years respectively.

It was also found, during the survey, that the CIC and the SICs of Gujarat, Assam and Uttarakhand returned a large number of appeals/complaint, without passing any order.

Vacancies are often a result of the apathy and inefficiency of  state governments, with the process of appointments not being initiated in time, leading to delays in filling up vacancies. “There is also a strong apprehension that information commissions are purposely deprived of commissioners by governments to scuttle the effective functioning of the RTI Act. The non-functioning of information commissions amounts to a violation of peoples’ right to information, as ICs are the final adjudicators under the RTI law,” said Bhardwaj.

Lack of Accountability

What really characterises this government is a statement by Minister of State for Home Affairs, Kiren Rijiju in 2016. When questions were being asked about the circumstances in which the Madhya Pradesh police had shot dead eight undertrials who had escaped from Bhopal Central Jail, Rijiju said that people should stop asking questions, raising doubt, questioning the authorities and the police.

“This kind of signals the attitude of the government as we have many in the PMOs and other offices who say they are frustrated with the RTI Applications,” laments Bhardwaj.

This is fundamentally the problem RTI activists have had with the current government. “They want to systematically attack all institutions of accountability and transparency. If anyone wants to run a government in an unaccountable manner, they have to first destroy institutions of accountability. It is really in this context that we are looking at the RTI Law,” elaborates Bhardwaj.

Information Commissions (ICs) under the Indian RTI Act are independent, have a high stature, have extensive powers and are the final appellate authority under the law. The health of the RTI regime primarily depends on how effective and pro-active these commissions are.

(The second part of this article will be carried next week. The write-up first appeared in NH on Sunday).

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Published: 12 May 2018, 12:31 PM