In light of this anniversary, Satark Nagrik Sangathan (SNS) has released a comprehensive report titled “Report Card on the Performance of Information Commissions in India, 2023-24”. This report, compiled from data accessed under the RTI Act, evaluates the performance of all 29 information commissions across the country. It examines key metrics, including the number of commissioners, appeals and complaints registered and resolved, pending cases, estimated waiting times for case disposal, penalties imposed for violations, and the overall transparency of operations.

Methodology of the Report

The report is primarily based on an analysis of information accessed under the RTI Act, from 29 information commissions across India. A total of 174 RTI applications were filed with the Central Information Commission (CIC) and State Information Commissions (SIC). In addition, information has been sourced from the websites and annual reports of information commissions. The report also draws on findings and discussions of previous national assessments of the RTI regime.

Key Findings of the Report

The report reveals troubling trends that pose significant challenges to the effective functioning of the RTI framework:

7 Information Commissions are defunct

Between July 1, 2023, and June 30, 2024, seven information commissions were found to be defunct for varying periods. States affected include Jharkhand, Telangana, Goa, Tripura, Madhya Pradesh, Uttar Pradesh, and Chhattisgarh. Alarmingly, four of these—Jharkhand, Telangana, Goa, and Tripura—remain defunct, leading to a significant backlog in cases.

5 State Information Commissions without Chief

Currently, 5 commissions are operating without a Chief Information Commissioner, which includes the SICs of Chhattisgarh, Maharashtra, Karnataka, Uttarakhand, and Odisha. This lack of leadership hampers their ability to function effectively.

Backlogged Cases

A staggering 4,05,509 appeals and complaints were pending across the 29 information commissions as of June 30, 2024. This represents a significant increase in backlog over the past few years, illustrating the growing challenge of processing requests in a timely manner. Between July 1, 2023, and June 30, 2024, 2,31,417 appeals and complaints were registered, with 2,25,929 cases disposed of during the same period by 28 Commissions. However, using the average monthly disposal rate, the report estimates that it would take the Chhattisgarh SIC an alarming 5 years and 2 months to resolve a single matter. For Bihar, the estimated time is 4 and a half years, while Odisha is projected to take nearly 4 years.

The CIC has been found to return a significant number of cases without issuing any orders—42% of the appeals and complaints it received were returned.

Of the 19 ICs which provided relevant information, the assessment found that seven commissions had returned appeals/complaints without passing any orders during the period July 2023 to June 30, 2024.

The CIC returned nearly 14,000 appeals/ complaints while it registered 19,347 during the period under review- 42% of the appeals/complaints received by the CIC were returned. The CIC website discloses how many appeals/complaints were re-submitted to the CIC after addressing deficiencies. The data reveals that nearly 96% of the cases which were returned to the appellant/ complainant were not re-submitted to the CIC by them. The SIC of Bihar returned 11,807 appeals/complaints which is more than what it registered during the same period – 10,548. The SIC of Kerala returned 1,224 cases while it registered 3,887.

Minimal Penalties for Violations

Analysis of penalties imposed by information commissions reveals a disconcerting trend. As per report, penalties were not imposed in 95% of cases where they could have been. This lack of accountability diminishes the deterrent effect of the RTI Act.

For the period July 1, 2023 to June 30, 2024, a total of 4,480 show cause notices were issued to PIOs under the penalty clause of the Act by the 18 commissions which provided relevant information. The SIC of Haryana issued the maximum number (3,412) followed by Punjab (691) and Andhra Pradesh (138). The SIC of Gujarat stated that it had not issued any notices under section 20, even though it imposed penalty in multiple cases. The CIC and SICs of Bihar, Chhattisgarh, Karnataka, Rajasthan, Uttar Pradesh and Uttarakhand stated that they did not maintain this crucial information.

The SICs of Maharashtra, Madhya Pradesh, Odisha and Tamil Nadu did not provide any reply or denied the information. In terms of penalty imposition, of the 23 commissions which provided relevant information, penalty was imposed in a total of 3,953 cases. Penalty amounting to Rs. 8.88 crore was imposed by 24 commissions during the period under review. The SIC of Uttar Pradesh imposed the highest amount of penalty (Rs. 4.85 crore), followed by Chhattisgarh (Rs. 1.83 crore), Karnataka (Rs. 93.95 lakh), and Haryana (Rs. 38.18 lakh)

Lack of Transparency in Reporting

Section 25 of the RTI Act mandates each commission to prepare an annual report on its implementation activities to be submitted to Parliament or the state legislature. However, 18 out of the 29 ICs (62%) failed to publish their annual report for the 2022-23 fiscal year, raising further concerns about transparency and accountability

Additionally, 18 out of 29 ICs (62%) have not even published their annual report for 2022-23. Only the CIC and SICs of Assam, Chhattisgarh, Gujarat, Mizoram and Rajasthan have published their annual report for 2023 (either calendar year 2023 or financial year 2022-23) and made them available on their official websites. The SICs of Arunachal Pradesh, Kerala, Manipur, Nagaland and Uttarakhand stated that they had published their annual reports for 2022-23, but these were not available on their respective websites. In terms of availability of annual reports on the website of respective ICs, 33% of ICs have not made their latest annual report available on their website, as the report reveals.

RTI Act 2005

The Right to Information (RTI) Act was enacted in India on October 12, 2005, to promote transparency and accountability in governance. It empowers citizens to request information from public authorities, thereby facilitating access to government records. The act mandates timely responses from public information officers and establishes a framework for appeals through Information Commissions at both central and state levels. Designed to combat corruption and enhance civic engagement, the RTI Act has been instrumental in empowering citizens. However, challenges such as backlogs and defunct commissions have emerged, highlighting the need for ongoing reforms to strengthen its implementation.

As India celebrates nearly two decades of the RTI Act, the findings of the report highlight a pressing need for reform within the information commissions. The existing challenges, including defunct commissions, leadership vacancies, excessive backlog, and inadequate penalties, undermine the spirit of the RTI Act and hinder its effectiveness in promoting transparency. To address these issues, immediate steps must be taken. Appointments for vacant commissioner positions should be expedited to restore functionality in the defunct commissions. Additionally, the government should focus on increasing the efficiency of information commissions by investing in training and resources to handle the growing volume of appeals and complaints.

The full report can be accessed here:

Related:

Online RTI Applications in the last 4 years

India’s RTI Act struggles to survive as backlog, lack of staff persists

Used for checking corruption, irregularities for 15 yrs, RTI being turned into ‘dead letter law’

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Union Minister Singh states this in the Parliament against the unstarred question asked by TMC MP Saket Gokhale on the total number of RTI applications/requests filed on the RTI Online website operated by the DoPT between the period June, 2021 to June, 2024 (month-wise) and the total number of RTI applications filed by citizens on the RTI online website that are classified as “pending” or have not yet been replied to, as-on-date

The Minster informed that ‘The RTI Online portal facilitates Indian Citizens to submit online RTI requests/appeals along with online payment and receive replies online from concerned PIOs/FAAs. As on date, 2622 Public Authorities have been aligned with RTI portal. The details of pendency of RTI applications, including pendency due to non-payment of required fees by applicants and other similar reasons etc. are maintained and monitored by the respective Public Authorities/Ministries/Departments.” 

The year-month wise data provided by the Minister can be read here:

The RTI web portal for online filing of RTI applications was launched by the Ministry of Personnel & Training on April 22, 2013. This portal developed by NIC, is a facility for the Indian Citizen to file online RTI applications and first appeals and also to make online payment of RTI fees.

However, the Union Minister Singh did not give any information on the status or pendency of such applications. 

Related:

India’s RTI Act struggles to survive as backlog, lack of staff persists

Used for checking corruption, irregularities for 15 yrs, RTI being turned into ‘dead letter law’

Amendments to RTI Act “Regressive: Protests

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Karnataka police did not publish details of the arrest on their website, as required by law; when a concerned citizen sought CCTV footage of the police station, that request was stonewalled by the Public Information Officer (PIO) of the Nangali Police Station in Kolar district, where the questioning occurred.

The PIO at first declined the request for footage citing privacy concerns, and later claimed that the cameras were not functioning. The Karnataka Information Commission imposed a fine of Rs 25,000 on the PIO, to be deducted from his salary; orders were also issued to submit a report about the compliance with the December 2020 judgment of the Supreme Court seeking functional CCTV cameras in all police stations.
Transparency in the actions of those in authority is one – and usually the surest – way to prevent abuse of power and ensure justice when abuse occurs. In Muniraju’s case, the life that is lost cannot be retrieved; the fact that this was a custodial killing could only be established because of the intervention of one concerned citizen who used the Right to Information Act.

October 12, 2023 marked 18 years since the Right to Information became law. “The Hindu” reported recently that over three lakh appeals and complaints were pending before the information commissions, established under the Right to Information Act, 2005. A release from Press Information Bureau commemorating 18 years of RTI noted that over 3.5 lakh second appeals and complaints had been disposed of by the Central Information Commission (CIC) in these years.

The last Chief Information Commissioner was YK Sinha, whose tenure ended on October 3, 2023. For the fifth time now, since August 2014, the Central Information Commission  is headless. A five-storey building was constructed in Munirka, Delhi, to house the CIC at great expense.

Buildings alone, however, do not make institutions. There ought to be at least 10 information commissioners at the CIC; there are currently only four. Even the term of these four will expire in November – will the CIC then go into “lockdown mode”?
Transparency activist Commodore Lokesh Batra says:

“Unlike courts where acting chief justices are invariably appointed, the RTI Act does not make provision for such appointments. There is no ‘Acting Chief Information Commissioner’. Thus, a vacant position means several administrative and financial decisions remain in limbo.”

There ought to be at least 10 information commissioners at CIC. There are currently only four, and their term will expire in November

On October 6, 2023, in response to an application from Commodore Batra, the Department of Personnel and Training released a list of 80 names of people who had applied for the position of Chief Information Commissioner, four of them marked “late applications”.

An advertisement seeking applications for the position was issued on August 7. In December 2022, an advertisement was issued for filling vacancies of information commissioners at the CIC – 256 applications were received in response to that advertisement. Yet, the government appears in no hurry to fill vacant positions.
Satark Nagrik Sanghatan, a citizens’group, compiled a report card of the information commissions across the country, and noted that 3,21,537 appeals and complaints are pending, with the backlog rising incessantly.

Four information commissions – Jharkhand, Telangana, Mizoram and Tripura – are defunct now, as no new information commissioners were appointed once incumbents demitted office. Six information commissions are currently headless, including the Central Information Commission.

Relevant information was available for 28 information commissions across the country, and this is what the citizens’ group accessed and analyzed in the report. Using average monthly disposal rate and pendency, the group assessed that West Bengal State Information Commission would take 24 years to dispose a matter, while 10 information commissions would take one year or more. In over 90 per cent of cases where a fine could have been imposed, no fine was imposed.

—
*Freelance journalist

Courtesy: CounterView

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A Right to Information (RTI) query has put forth a startling revelation that 503 out of 543 Lok Sabha members of parliament from the Lok Sabha have not furnished details of their assets and liabilities after being elected in the May 2019 parliamentary elections. According to Lok Sabha Declaration of Asset Rules 2004, members have to declare their property details within 90 days of their election.

The list of ministers includes Union Home Minister Amit Shah, Nitin Gadkari, Finance Minister Nirmala Sitharaman, Rajnath Singh, Prakash Javadekar, Piyush Goyal and Dharmendra Pradhan among others. Among the Opposition leaders, Sonia Gandhi, Rahul Gandhi, Shashi Tharoor, Farooq Abdullah, Akhilesh Yadav and Mulayam Singh Yadav are the ones who have not furnished details of their assets and liabilities.

The RTI query was filed by Kashipur-based activist Nadimuddin who had sought details of MPs in both the upper and lower houses of parliament regarding their asset declaration. He had filed the RTI online on October 24, 2019 and received the reply on December 10, 2019.

In its reply, the Lok Sabha secretariat stated that till December 10, 2019, 503 MPs hadn’t furnished their property details. Only 36 MPs including Prime Minister Narendra modi, Ravi Shankar Prasad and Ramesh Pokhriyal Nishank had submitted the requisite information. Of these, 25 belong to the Bharatiya Janata Party, 8 to the All India Trinamool Congress and 1 each to Biju Janata Dal, AIADMK and Shiv Sena.

No MP from the India National Congress has furnished requisite details.

According to Rule 3 of the Members of Lok Sabha (Declaration of Assets and Liabilities) Rules, 2004, every elected candidate for the House of the People shall, within ninety days from the date on which he makes and subscribes an oath or affirmation for taking his seat, furnish details of the movable and immovable property of which he, his spouse and his dependent children are jointly or severally owners or beneficiaries, his liabilities to any public financial institution and his liabilities to the Central or State Governments.

Speaking to The Times of India Nadimuddin said, “I’d asked for details of those MPs who haven’t taken oath yet, as well as details of assets and liabilities furnished by them after they took the oath of office and secrecy.”

“Both ruling and Opposition parties talk of transparency, but they are nowhere close to practicing it. The rule is very clear that details should be given mandatorily, but no one seems to be bothered about it,” he added.

He also told The New Indian Express, “Our lawmakers should realize that their conduct in every aspect holds importance. Only talks of transparency will not help. They should walk the talk and then only people will be able to put their faith in them.”

Related:

How 335 MPs Grew Rs 6-Crore Richer Between 2014 And 2019
Most Women MPs Ever, Yet Only 14.6% Of Lok Sabha
What Happened to Tax Investigations on Ambanis?

The post Only 36 out of 543 Lok Sabha MPs have declared assets after May 2019 elections appeared first on SabrangIndia.

To be, or not to be, that is the question:

Whether ’tis nobler in the mind to suffer

the slings and arrows of outrageous (RTI applications) fortune,

or to take arms against a sea of (information requesters) troubles

and by opposing end (their right to know) them.”

(with apologies to Shakespeare for a poor parody of his creative genius and Hamlet- the brooding Prince of Denmark)

Unlike his contrarian predecessor, the present Chief Justice of India, Ranjan Gogoi has, in concert with four brother Justices, declared his august office, covered by the RTI Act. In its 15^th year of implementation, this unanimous opinion of the Constitution Bench (CB) strengthens the transparency law in many ways and paves the way for bringing another constitutional authority, namely, the Governor of a State under its compass. That question of law opened up twelve years ago through an RTI application penned by a former Union Defence Minister when he was the Leader of Opposition in Goa. Although the appeal case itself has been dismissed and the applicant is no longer with us, the Apex Court is yet to constitute another Bench to answer this important question of law.

In the latest case that the CB has decided, the RTI applicant Subhash Chandra Agarwal’s, the wait was not any less protracted. Three of his RTI applications, which formed the subject matter of the dispute are more than a decade old. Curiously, two of them have been referred back to the Apex Court’s Public Information Officer (PIO) for making a decision in accordance with the expansive procedures laid down by the law and the principles of interpretation explained by the Bench collectively and by Justices Ramana and Chandrachud, individually. Whether or not the information continues to have any currency, the RTI applicant will have to tell us. Will he move the Courts again this time on questions of fact, if the PIO rejects the requests after following due process, is a moot question. The struggle for transparency even in the judicial realm is not any easier than it is in the executive sphere, going by the experiences of millions of private citizens.

Leaving the facts of the three cases aside, the common and individual opinions penned by the Justices clarify several interpretational matters for the benefit of both the seekers and holders of information. However, in some respects, they also pose serious challenges to the already well-established understanding of the interplay between the right of access to information and the grounds for rejection of such access. In a couple of places, lay readers are likely to end up in confusion about the seeming divergence of views between the common opinion and the individual opinions of the Justices. In this piece, I hope to illustrate these issues in brief in order to encourage the readers to negotiate the 250-page long judgement to make their own determination about the import of this judicial milestone of sorts.

Let us start with the many positives for which the judgement deserves unqualified appreciation. First, despite not intending it to be so, because the facts of the cases related to accessing information from a State institution, the explication of Section 2(f) is a very welcome jurisprudential development. While the first limb of the definition of ‘information’ brings within its scope a wealth of forms in which information may be held by a public authority, such as samples and models of materials used, in addition to conventional records, logbooks, reports, written opinion and advice, electronic data and emails, it also includes information that a public authority may access from any private body under the provisions of any other existing law.

The CB’s conjunctive interpretation of the term ‘information” and “right to information” which is “under the control” of a public authority clarifies that it has a duty to collect information about a private hospital, school, shop, hotel, firm or factory, under lawful authority of course, and furnish it to an RTI applicant in accordance with the Act’s provisions even though such information was not held in material form in its records at the time of receiving the request. This provision has not been used to the fullest and wherever attempts were made, PIOs often resisted the performance of such duties. This judgement is a potent tool in the hands of RTI applicants who would like to make private entities that are not directly covered by the Act, more transparent about their activities.

Second, both the common and individual opinions of Justice Chandrachud contain a very detailed discussion of how to interpret “public interest” in the context of disclosure of information which is rejected by a PIO by invoking one or more grounds listed in Section 8(1) of the Act. Readers familiar with the RTI Act will recall, ten clauses in Section 8(1) contain more than 30 grounds on which information sought by an RTI applicant may be legitimately refused. However, these exemptions are subject to a later clause that requires even such information to be made public if by so doing the larger public interest will be served better.

Justice Chandrachud’s opinion, in particular, builds upon the gold standard of interpretation of how to balance competing for public interests favouring transparency and continued confidentiality that Justice P. N. Bhagwati (as he then was) developed in S. P. Gupta vs President of India & Ors. in 1981. Not only is this portion of Justice Bhagwati’s opinion highlighted for the benefit of the reader, a non-exhaustive list of factors that must be taken into consideration while performing such a balancing test is also underscored. Factors such as likelihood of disclosure causing embarrassment to the Government – a criterion that continues to guide the labelling of official records as “secret” or confidential” within the Government, or the RTI applicant’s likelihood of misunderstanding or misinterpreting the contents of a record or the high seniority of the author of an official record are all irrelevant considerations for the purpose of applying the “public interest test”.

The Department of Personnel and Training which often loses no time in sending out circulars highlighting regressive interpretations of the RTI Act contained in occasional judicial pronouncements would do well to show similar enthusiasm in circulating these portions of the judgement to PIOs, First Appellate Authorities and Information Commissions. This will go a long way in shedding ossified practices of denying access to information on such frivolous grounds.

Third, the common opinion consigns to the dustbin of history, the penchant of public authorities and even many an Information Commissioner to refuse to treat an individual’s quest for justice by seeking information, as a matter of “public interest”. All five Justices have agreed that public interest has “no relationship with the number of individuals adversely affected by disclosure or the number of individuals wanting such disclosure. The decision will vary depending upon how the public interests in maintaining the exemptions will be balanced with those favouring disclosure depending upon the facts and circumstances of every case.

Some readers might scorn at this ‘case-to-case’ approach as it lends no fixity to the concept of “public interest” but that indeed is the inherent strength of the method. It is not based on treating an entire class of information as being exempt for all time to come. What matters ultimately is the effect of disclosure- the facts and circumstances of each case- will it harm a public interest already listed in the exemptions or be beneficial to the public interest or remain neutral. Only the first effect requires continued confidentiality. The common and individual opinion of Justice Chandrachud provides very useful guidance to public authorities in this regard, if only they were to read it intently.

Now moving on to the challenges and confusion that the judgement poses to the implementation of the RTI Act. Much has already been said and will continue to be said about the interface between the fundamental rights to privacy and to access information from public authorities- both being judicial discoveries as Part III of the Constitution does not make a reference to them at all. The CB has itself hoped that some of the tensions in the interplay of these two rights are likely to be resolved with the enactment of the long-pending personal data protection law. So also with the clarification of the conditions in which fiduciary relationships arise and become a brake on the drive for greater transparency. We will not dwell on these topics in any detail.

Perhaps the most deleterious impact of the common opinion on the RTI regime may be said to be the inclusion of “motive” of the RTI applicant as a relevant factor while administering the public interest test. The CB recognizes that the purpose of the information seeker will have no relevance while making a decision on an RTI application but it will be a relevant factor while applying the public interest test to decide whether exempt information may be disclosed (para #79). This despite the CB recognising the existence of a bar on compelling an RTI applicant to disclose her or his motive while seeking information under Section 6(2).

Strangely, nowhere in the common or the individual opinions is Section 19(5) of the RTI Act even mentioned. Under this provision, the burden of proving why the requested information must remain exempt is on the PIO. The RTI Act does not place a corresponding obligation on the RTI appellant to explain motives for demanding access to information at any stage of the internal and external appeals. It is not clear whether this matter was brought to the notice of the Justices at all in the pleadings and written submissions.

This significant and embarrassing lapse is likely to embolden public authorities and Information Commissions to insist on a declaration of the purpose of seeking not just exempt information but eventually all information. It is very well known that decisions of PIOs and appellate authorities, not to mention several Information Commissioners, often raise this point when their obvious intent is to prevent disclosure of the requested information.

Second, the common opinion divests the PIO of the power coupled with a duty to direct disclosure of exempt information on grounds of public interest under Section 8(2) of the RTI Act. Instead, the CB has declared that this is a “discretionary power” exclusively vested with the “public authority” which the PIO represents (para #27). It is respectfully submitted, this interpretation creates two problems.

First, under Section 8(1)(j) of the RTI Act, the PIO is clearly vested with the power of making a decision to disclose personal information of an individual other than the RTI applicant (after following due procedure of third party interests are attracted as per the terms of Section 11 of the Act). That power coupled with duty cannot be taken away through judicial pronouncement unless the Court wants to supplant legislative intent, which it has always abhorred and avoided.

Second, the only clear finding on a question of fact in the entire case is the determination that the Supreme Court as established under Article 124 of the Constitution is one “public authority” and the CJI’s office is part of the same public authority. So if the “public authority” is an institution, who, then in such an institution as well as in other similarly labelled institutions will wield the power to determine whether exempt information will be disclosed under the terms of Section 8(2) of the Act? The common and individual opinions are silent on this point.

Next, the explication in both the common and individual opinions of the manner in which competing public interests must be harmonized and the factors that will be relevant or irrelevant for the purpose of determining public interest in favour of disclosure or otherwise, clearly indicates that it is in the nature of a quasi-judicial function. Where is the scope for applying any “discretion” in matters where the competing public interests must be balanced? It is respectfully submitted that “discretion” will only colour the entire exercise with arbitrariness.

Third, with the deepest respect to the wisdom of the Justices, it must be pointed out that the common and individual opinions betray a contradictory approach with regard to the manner of application of exemptions. This point cannot be illustrated without delving a bit into the jurisprudential development around the manner of invoking of exemptions. If memory serves us right, the earliest explanation of how exemptions must be invoked is found in Justice Ravindra Bhat’s opinion in Bhagat Singh vs Chief Information Commissioner & Ors., of 2007 when he served in the Delhi High Court. In that judgement, Justice Bhat (now elevated to the Apex Court) pointed out that exemptions listed in Section 8(1) of the Act, being exceptions to the general rule of transparency contained in Section 3 must be construed strictly.

In several other matters decided by the High Courts of Kerala, Madras and Calcutta, this interpretational rule was accepted. However, the Apex Court overturned that position in 2011 while deciding Central Board of Secondary Education & Anr. vs Aditya Bandopadhyaya and Ors., (see slide 35 at this weblink). The Court said that the exemptions must not be treated as “fetters on the right to information”, instead a harmonious approach must be adopted to balance these competing public interests. This position reiterated in ICAI vs Shaunak H. Satya delivered the same year and subsequent judgements of the Apex Court is also appreciated and explained in the common opinion of the CB. However, the individual opinion of Justice Ramana contains a discordant note as it gives currency to the approach several High Courts adopted between 2007 and 2011.

After lending his name to the common opinion, at para #23 of his individual opinion, Justice Ramana writes as follows:

“There is no doubt it is now well settled that exemption clauses need to be construed strictly. They need to be given appropriate meaning in terms of the intention of the legislature.”

In our humble opinion, this is also an area that needs some curative action from the Apex Court to avoid the embarrassment of contrary opinion being presented by a Justice at two different places on the same issue.

Fourth, both the common opinion (para #26) and the individual opinion of Justice Chandrachud (para #75) treat seven of the ten exemptions listed in Section 8(1) of the RTI Act as “absolute” in character where the PIO is barred from disclosing such information even if the larger public interest in disclosure outweighs the harm caused to the protected interests. Three exemptions relating to commercial confidence, trade secrets and intellectual property, information covered by a fiduciary relationship and the last clause which protects personal privacy are not absolute in so far as they are tempered specifically by public interest override clauses. In our humble opinion this characterization is not in accordance with legislative design and intent.

Most of the blame for this confusion must lie with the draftspersons and we the advocates of transparency who pushed Parliament to legislate without cleaning up the initial draft. The RTI Bill tabled in Parliament did not contain an omnibus public interest clause which now exists as Section 8(2) in the Act. Instead, Section 8(2) in the original Bill contained what is now a proviso underneath Section 8(1) which contains the noble principle that information which cannot be denied to Parliament or a State Legislature cannot be denied to any citizen. Only clauses under Sections 8(1)(d), 8(1)(e) and 8(1)(j) whose contents are explained at the beginning of this paragraph were subjected to a public interest override clause.

The omnibus public interest override clause was inserted as Section 8(2) upon the recommendation of the Parliamentary Committee which vetted the Bill with copious inputs from civil society advocates, lawyers and academics. Due to the rushed passage of the final version of the Bill (on the last days of the Session of both Houses of Parliament), the draft was perhaps not cleaned up (the hard copy of the gazette notification of the Act contains at least two typographical errors even now). So the public interest override element stays in the three exemption clauses in addition to the omnibus clause as part of the law and is the source of this confusion.

However, a basic principle of interpretation of the law is that Parliament intended for every word and formulation to exist in the manner it is crafted and visible in the final text adopted and notified after Presidential assent. So the doctrine of harmonious construction comes to play to resolve any conflict between two or more provisions oflaw. It is respectfully submitted that characterising seven out of ten exemptions clauses as being “absolute” does not amount to harmonious construction but amounts to doing injustice to legislative intent. We hold this view for multiple reasons. First, if Parliament had intended for these exemptions to be absolute then the opening limb of Section 8(1) would have read- “The following information shall not be provided or disseminated” in the manner of Section 3(3) of Nepal’s Right to Information Act enacted in 2007. Several other countries place such a prohibition which can be realistically termed “absolute”.

The Indian RTI Act, however, takes a different approach. The opening limb reads” Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen…” In our humble opinion, this implies- a citizen cannot reasonably expect to get information covered by these exemptions as a matter of right- a principle which the common opinion also recognizes. However, that does not turn seven of these clauses into absolute exclusions.

First, Section 8(2) provides the exception to these exemptions- so they cannot be termed exclusions at all.

Second, Section 8(3) prohibits the invoking of seven out of ten exemptions for information that is more than 20 years old. This 20-year rule applies to five of the seven exemption clauses which the common opinion characterizes as absolute. So here again the characterization of these exemptions as absolute is not sustainable in our humble opinion.

Strangely, this important provision does not merit even a mention in either the common or the individual opinions of the Justices. Unless these confusions are cleared up through a curative petition, public authorities are likely to misuse this portion of the judgement to deny access to more and more information which was not the intent of Parliament in the first place.

Last, but without putting too much emphasis on it as it is most likely to be the handiwork of a negligent law clerk which went unnoticed, Justice Chandrachud’s opinion contains a howler. The seminal paragraph where the citizens’ right to know was discovered for the first time by another 5-Member Constitution Bench in State of U.P. vs Raj Narain, was authored by Justice K. K. Mathew and not the then Chief Justice of India, Justice A. N. Ray as attributed in this opinion.

However, it must be acknowledged that despite the cautious manner in which the common opinion seeks to strike a balance between citizen’s access to information about how judges are appointed (a point which has been remanded back to the PIO for afresh decision) and the need for ensuring the independence of the judiciary and preventing possible attacks on the reputation of candidates for judgeship in the constitutional courts, Justice Chandrachud mentions a non-exhaustive list of essential norms in regard to judicial appointments in his opinion.

Will the PIO reveal the norms that went into the elevation of certain judges over and above others, now that the RTI application has been remanded to him for fresh consideration remains to be seen. What objections will the individuals so elevated will pose to making this information transparent also becomes a matter of immense public interest? How effectively will the PIO apply the tests and the interpretative tools laid down by the common and the individual opinions remains to be seen as well?

At the other end of the spectrum of this creative tension characterizing the adjudication undertaken by the CB is the anxiety expressed by Justice Ramana that RTI could become a potential tool of surveillance to scuttle the effective functioning of the judiciary.

With the deepest respect and in all humility it is submitted that RTI cannot be equated with the tools that empower the government to conduct surveillance over anybody- citizens and high public functionaries alike. The latter is abhorrent to human dignity and a violation of basic human rights and freedoms when attempted in an illegal and illegitimate manner.

The RTI Act contains adequate safeguards as noted by the Hon’ble Justices themselves that have convincingly until now and will in the future prevent disclosure of information that should legitimately remain under wraps. If not, these three cases would not have reached the Supreme Court’s high table of justice.

(Venkatesh Nayak is Head, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi. Views are personal.)

First published in https://theleaflet.in/

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Modi’s speech was appreciated as one with vision of “proactive governance”. And yet, nearly five years down the line, we find his government failing to practice what he said, with the RTI Act slowly turning into a law of secrecy, a sacred law which does not allow people to question its decision-making process.

In reply to an RTI application filed with a government TV channel, its Central public information officer (CPIO), appointed for providing RTI replies, outrightly denied information saying the RTI Act is “sacred” and shouldn’t be used to question government actions.

The applicant had asked for a copy of the contract signed with an expert engaged by the government TV channel, which is a public authority, and also details of service conditions, rules and remuneration paid to this expert as per the contract. Denying the plea for information, CPIO also insisted that the Act can only be used for a “bona fide” purpose and queries like “why, when, where and what” shouldn’t be made.

This is a matter of deep concern. For, one of the circulars dated June 1, 2009 states that RTI cannot give justification to particular a thing, or a document, but can provide the copy of a document. This came to light in the judgement given by the Goa Bench of the Mumbai High Court in the Dr Celsa Pinto vs Goa Information Commission case. The judgement said that RTI can provide copies of documents, but need not answer the question “why”.

“All document related to any decision, noting, can definitely have answers to these questions, PIO can provide relevant documents, even if citizen asks certain question”, says the government resolution (GR), but nowhere does it say questions are banned. Despite this, the CPIO of the TV channel, while refusing to give information, mentions some judgement without quoting the source. This is a clear case of misuse of GR as also different orders by the Central Information Commission (CIC).
 

 

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In his reply at the end of the debate, the Hon’ble Union Minister of State for Personnel, Public Grievances and Pensions made a few points which indicated the Government’s mind in pushing for these amendments. These issues need elaborate discussion and hopefully MPs in the Rajya Sabha will take them up in right earnest. Meanwhile, I am sharing some of my thoughts on a few points raised by the Minister for the reference and use of readers.

Does the legislative competence to enact an RTI law arise from Entry 97 of the Union List?
In his speech, the Hon’ble Union Minister admitted to at least two truths- 
a) that he was not a lawyer and was not as well-informed of the technical aspects of laws as other lawyer-turned MPs who criticised the Bill using their professional training and experience. He also quite rightly pointed out that law is too serious a subject to be left to lawyers alone. (I support this position wholeheartedly as I am not a trained lawyer myself. I also believe, in a functional democracy, law is the business of every citizen, not merely that of the Government of the day or the Legislatures or Courts and lawyers); and

b) that he had read about all the legal issues pertaining to the RTI Act and the Amendment Bill that MPs opposing it raised, only the previous night in order to participate in the debate (indeed Ministers are often too busy to spend any more time on legislative exercises).
Next, he pointed out that Parliament’s competence to enact a law to give effect to the citizens’ right to obtain is located in Entry 97 of the Union List in the Seventh Schedule of the Constitution read with Article 248. The three Lists containing subjects on which Parliament and State Legislatures may make laws are connected with Article 246, not 248. But such a minor lapse on the part of the Minister may be ignored given his honest admission about not being a lawyer.

The Union List contains 97 subjects on which Parliament has the exclusive prerogative of making laws. Entry 97 reads as follows:
” Any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists.”

In other words, Parliament has been vested with the power to make laws on subjects which are not listed in either the State List or the Concurrent List. As RTI is not listed in either of them, the Hon’ble Minister turned to the catch all Entry 97.
If this the correct position in law, then it automatically follows that the RTI laws enacted in eight States since 1997, starting with Tamil Nadu, were all unconstitutional. Click here for the names of the States and the year of enactment of the respective RTI laws. (Jammu and Kashmir enacted its first RTI Act in 2004, but we will not get into that thorny thicket about legislative competence as the RTI Amendment Bill does not impact on that J&K’s RTI Act enforced since 2009.)

However, history is witness to the inaction of the constituents of NDA-III Government who were then in the Opposition in all those eight States. None of them challenged the constitutionality of these laws in the High Courts or the Supreme Court. Hundreds of thousands of citizens used these RTI laws to obtain information from Governments, particularly in the States of Tamil Nadu, Goa, Karnataka, Delhi and Maharashtra- the last continues to top the list of States where the most number of RTI applications are received by Government. So were all those actions of citizens seeking information and State Governments deciding whether or not to give information, illegal? It is difficult to accept the Hon’ble Minister’s assertion that Parliament’s power to enact the RTI law is locatable in Entry 97 of the Union List.

Legislative competence to enact an RTI law arises from Part III of the Constitution read with Entry 12 of the Concurrent List
When Parliament was examining the Freedom of Information Bill, 2000– NDA-I’s still-born efforts to have an RTI law for the country noted legal expert and author- Mr. A G. Noorani developed a legal opinion arguing, both Parliament and State Legislatures are competent to make laws to give effect to the fundamental right to information which is deemed to be a part of the fundamental right to freedom of speech and expression guaranteed in Article 19(1)(a) of the Constitution. He located this power in Entry 12 of the Concurrent List (scroll down to page 13 of the pdf file at this link). Entry 12 reads as follows:

” 12. Evidence and oaths; recognition of laws, public acts and records, and judicial proceedings.”
RTI Act enables citizens to access “public records” which are in the custody or under the control of public authorities. As such records are generated, collected, collated or compiled by public authorities at the Central or the State level, Entry 12 can be used by the Governments at both levels to enact RTI laws. This is what will save the eight State-level RTI laws from being deemed unconstitutional, even though the issue is merely academic in nature, now.

Adding to Mr. Noorani’s argument, in my humble opinion, State Legislatures can also make laws on matters such as RTI by virtue of Article 35 of the Constitution, situated in Part-III which lists the fundamental rights available to citizens and other persons. Article 35 reads as follows:
“35. Legislation to give effect to the provisions of this Part.—Notwithstanding anything in this Constitution,—
(a) Parliament shall have, and the Legislature of a State shall not have, power to make laws—
(i) with respect to any of the matters which under clause (3) of article 16, clause (3) of article 32, article 33 and article 34 may be provided for by law made by Parliament; and
(ii) for prescribing punishment for those acts which are declared to be offences under this Part,
and Parliament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in sub-clause (ii);” (emphasis supplied)

Now what are these restrictive clauses? Article 16(3) empowers Parliament to make laws stipulating residential requirements for persons to be employed as Government servants in a State under that State Government or a local authority there. Article 32(3) empowers Parliament to make laws to bestow on any other court, powers conferred on the Supreme Court to protect fundamental rights by issuing writs, directions or orders. Article 33 empowers Parliament to make laws for restricting the extent to which members of the armed forces, law enforcement agencies, intelligence and counter-intelligence agencies and agencies providing telecommunication services to the armed forces can enjoy the fundamental rights guaranteed by the Constitution. Article 34 empowers Parliament to make laws to indemnify any officer of the Central or State Government for any action taken for restoring law and order in any area where martial law is in force. Laws can made under this Article to validate any sentence passed or punishment inflicted or any other act done in an area where martial law is in force. On these matters relating to Part III of the Constitution, State Legislatures have no power to make laws. Those powers are vested exclusively with Parliament.

So, these restraining provisions may be interpreted to imply that there is no bar on State Legislatures from making laws to enable the exercise of other fundamental rights guaranteed by the Constitution. In my humble opinion, this implied legislative power of the State Legislatures is co-extensive with the implied power of Parliament to make laws to give effect to other fundamental rights guaranteed under Part III of the Constitution. There is no bar on such legislative exercises under Article 35 of the Constitution. 

This is perhaps why, the Statement of Objects and Reasons (SOR) attached to the RTI Bill (scroll down to page 18 of the pdf file) tabled in Parliament in December 2004 did not refer to any Entry in any of the three Lists in the Seventh Schedule. Instead, the last line of the SOR stated-
“The proposed legislation will provide an effective framework for effectuating the right of information recognized under Article 19 of the Constitution of India.” (emphasis supplied)

Therefore, the Hon’ble Minister’s opinion that the RTI Act was made by virtue of Entry 97 of the Union List which vests residuary powers of Legislation in Parliament may not be the correct position in law. Courts will have to determine this matter for reaching certainty.
Two sets of Rules regarding salaries and service conditions will apply to the State Information Commissions
If the RTI Amendment Bill passes muster in the Rajya Sabha also and in its current form, it will create another legal conundrum. Section 27 of the RTI Act vests the power to make Rules relating to the salaries, allowances and service conditions of the staff and employees of Information Commissions in the State Government. The relevant extract from Section 27 is cited below:
“27. (1) The appropriate Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:
XXXX
(d) the salaries and allowances payable to and the terms and conditions of service of the officers and other employees under sub-section (6) of section 13 and sub-section (6) of section 16;” (emphasis supplied)
Through the RTI Amendment Bill, the Central Government seeks control of the rule-making power to determine the salaries, allowances and tenure of the State Information Commissioners also. If this proposal is enacted, SICs will have two sets of Rules to implement relating to

salaries, allowances and conditions of service- 
1) one for the Information Commissioners as determined by the Central Government; and 

2) another for the SIC staff as determined by the respective State Governments.
This will be an extremely rare if not unique occasion when two different sets of rules will apply to a similar matter within one body. We have already demonstrated in our first despatch how this proposal is violative of the federal scheme of the RTI Act especially, because the Government seeks powers to determine how money will be spent from the Consolidated Fund of each State because that is the kitty which will pay for the salaries of State Information Commissioners. Dual control through Rules will cause more problems in the functioning of State Information Commissions. 

Who will be the “appropriate government” for a State Information Commission?
Another legal conundrum that the proposed amendments will create is with regard to the applicability of RTI Rules on SICs. The SICs are also public authorities under the RTI Act and have to appoint public information officers and appellate authorities for disposing RTI applications and appeals just like other government and public sector entities. They are currently implementing the RTI Rules notified by the respective State Governments by virtue of Sections 2(1)(a) which defines the term- “appropriate governments” and Section 27 of the RTI Act which vests the power to make RTI Rules in the State Governments also. As the SICs are constituted and populated by the appropriate State Governments by virtue of Section 15 of the RTI Act, those State Governments make RTI Rules relating to fees and other matters listed in Section 27 for the SICs also.

Now if the Central Government were to successfully wrest from Parliament, the power to determine the salaries, allowances and tenure of State Information Commissioners, the question that would then arise is- who will be the “appropriate Government” for them- the State Governments which appoint them and have the power to cause their removal or the Central Government which controls their salaries and tenure? 

So if the amendments receive Parliamentary approval, will SICs have to follow the Central RTI Fee and Appeal Rules for themselves while they continue to apply the respective State RTI rules for public authorities that fall under their appellate (Section 19 of the Act ) or complaints (Section 18 of the Act) jurisdiction? This is another legal quagmire that the proposed amendments create.

The federal scheme arises from various parts of the RTI Act
Sections 15 -18 which provide for the establishment and constitution of the State Information Commissions and the removal of Information Commissioners are not the only source of the federal scheme of the Act. In fact the scheme of the Act as it stands now sensibly demarcates responsibilities for implementing the Act. Recognising the fact that the Constitution has laid down a scheme of division of powers between the legislature, executive and the judiciary, the RTI Act vests the rule-making power in the heads of all three organs of the State as “competent authorities”. So the Rules that the Central Government or the President of India make are applicable only to the Executive branch of the Government, the Union Territories and such other bodies. The Speakers of the Lok Sabha and the Vidhan Sabha, the Chairperson of the Rajya Sabha and the Legislative Councils, the Chief Justice of India and the Chief Justices of the respective High Courts are vested with the power to make Rules to implement their RTI Act within their jurisdiction. The Central Government’s RTI Rules do not have automatic applicability to them. This is the scheme provided for in Sections 2(1)(a) and 2(1)(e) which define the terms- “appropriate government” and “competent authority” respectively read with Sections 27 and 28 of the RTI Act which vest the rule-making power in such bodies. This scheme respects not only the division of powers between the three organs of the State but also the quasi-federal distribution of power between the Central and the State Governments laid down by the Constitution. The proposed amendments seek to obliterate this harmonious scheme and create more confusion than solve any non-existent problem. So by this count also, the Central Government cannot and must not demand Parliament’s power to make Rules for Information Commissions. 

The RTI Amendment Bill, if passed will result in the forceful adoption of the SICs by the Central Government. While the State Governments which constitute them and pay for their salaries and allowances from the Consolidated Fund of the concerned State continue to remain the biological parents, the Central Government will force its illegitimate parenthood on them in their teenage (RTI is now completing 15 years of implementation) by determining their salaries and allowances.

None of these matters seem to have crossed the mind of the Hon’ble Minister while replying to the debate on the RTI Amendment Bill in the Lok Sabha. Perhaps one late-night reading of the Act does not afford enough time to examine all these problems created by the amendment proposals. But the Hon’ble Minister must not be faulted for this. There is an cohort of senior officers and legal draftspersons whose salaries are paid for by the citizen-taxpayer who should have adequately advised the Hon’ble Minister. Was such advice ever given to him? Only the Cabinet Note attached to the Bill, file notings and the Inter-Ministerial Consultations will reveal the truth. This is an RTI-able topic to which readers must apply themselves.

Had the Draft Bill been put out for comments from the citizenry as required the Pre-Legislative Consultation Policy, 2014, the Government would have benefited from popular wisdom. That has not happened despite the amended NDA slogan- sabka saath, sabka vikas, sabka vishwas (meaning- with all, development for all and trust of all). The Government does not seem to show much vishwas (faith) in the citizenry’s ability to advise them about what is wrong with these RTI amendment proposals.

Conclusion
Even as I rush to complete this note and circulate it, MPs in the Rajya Sabha will begin debating the RTI Amendment Bill. I hope good sense will prevail and the Bill will be referred to a Select Committee for detailed deliberation. In the Lok Sabha the Hon’ble Minister asked why do the Opposition MPs suspect that the Government will downgrade the salaries and allowances of the Information Commissioners? So will the Government then upgrade their salaries? This will go against the grain of the justification printed in the SOR of the RTI Amendment Bill– that statutory bodies like the Information Commissions cannot be equated with constitutional bodies like the Election Commission of India (as it is currently). So will the Government downgrade the salaries? The Hon’ble Minister seems to allay these fears also. The only option that remains is to leave the status quo, perhaps by removing the reference to the Election Commission and equating the salaries and allowances of the Information Commissioners with that of Secretary-level officers who already earn the same levels of salary as the Election Commissioners. Then this would become an exercise in nitpicking- a waste of Parliament’s time and resources. 

Certainly this is a waste of my time as well. I could have drafted at least three RTI applications and a couple of first appeals and second appeals during the time taken to research and out despatch these notes.

Click here and here to read our earlier despatches analysing the RTI Amendment Bill.

First published on https://www.humanrightsinitiative.org/
 

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Within less than two months of returning to power the National Democratic Alliance (NDA-III) Government has revived its 2018 proposal to curtail the autonomy of the Information Commissions established under The Right to Information Act, 2005 (RTI Act). Readers will remember, a similar attempt was made exactly one year ago but the Bill to assume power to regulate the tenure, salaries and allowances of Information Commissioners across the country was not tabled in Parliament. Perhaps the widespread protest from citizenry and the media supported by the Opposition Parties was the reason for the government backtracking. Emboldened by the big majority that it has attained in the 17th Lok Sabha, the NDA Government is back to its favourite past time- striving to curtail the efficacy of the RTI Act. According to the Revised List of Business, the Government is likely to table the Bill in the Lok Sabha today (19th July, 2019).

The text of the RTI Amendment Bill making the rounds of cyberspace is similar to the 2018 Bill, word for word. The slightly expanded paras #3 and 5 of the Statement of Objects and Reasons attached to the Bill are the only variation over the previous document. Click here for the text of the RTI Amendment Bill, 2019. 

Problematic areas in the RTI Amendment Bill, 2019
In 2018 many experts and activists wrote eloquently and passionately about the regressive nature of these proposals to amend the RTI Act. While agreeing with their criticism, I am once again sharing our arguments against these amendment proposals, circulated last year, for the reference of readers. The crux of our arguments is explained below:
1) The amendment proposals contradict the Central Government’s 2017 action of upgrading and harmonising the salary packages of other Statutory Tribunals and Adjudicating Authorities established under various Central Laws:
In June, 2017, through The Finance Act (see Section 156 onwards in Part XIV of the Act) the Central Government upgraded the salaries, allowances, eligibility criteria and the manner of appointment of the Chairpersons/Presiding Officers and Members of 19 Tribunals and Adjudicating Authorities- all of which have been established under a specific law and whose members are not constitutional authorities. Some of these Tribunals are: Central Administrative Tribunal, National Green Tribunal (NGT), Armed Forces Tribunal, Appellate Tribunal for Electricity, Railway Claims Tribunal, Intellectual Property Appellate Board, Debts Recovery Appellate Tribunal, Central Excise and Customs Tribunal, Telecom Disputes Settlement Appellate Tribunals, Securities Appellate Tribunal, Income Tax Appellate Tribunal, Authority on Advance Ruling and even the Film Certification Appellate Tribunal (FCAT) etc. 

The salaries of the Chairpersons of 17 of these 19 Tribunals were hiked to the same levels as that of the Election Commissioners (INR 2,50,000) while the salaries of the Members were upgraded to the levels of High Court Judges (INR 2,25,000). Readers will recall that the Chief Election Commissioner (CEC) and Election Commissioners (ECs) are entitled to draw the same level of salaries as Judges of the Supreme Court of India. It is not clear whether the salaries of the CEC and the two ECs who are constitutional authorities have been upgraded yet. The information regarding salaries paid to them, as per the proactive information required to be disclosed under Section 4(1)(b)(x) of the RTI Act, continues to show INR 90,000 for all three of them. Either their salaries have not been upgraded or the information on their website has not been updated.

What is more intriguing is that the salaries of the Chairpersons and Members of the statutory Tribunals mentioned above were upgraded even before the President of India gave his assent to the law which upgraded the salaries of the Supreme Court and High Court Judges. This law was gazetted in January 2018, six months after the salaries of the Statutory Tribunals were hiked. It seems, the Central Government had no problems raising the salaries of Statutory Tribunals mentioned above, before upgrading the salaries of the SC and HC Judges who are constitutional authorities. So the justification that the Central Government is giving for amending the RTI Act, namely, that the Information Commissions being statutory authorities cannot be treated on par with constitutional authorities like the ECI does not sound convincing at all.

2) The proposed amendments contradict the rationale informing the October 2017 recommendations of the Law Commission of India for harmonising the salaries and terms and conditions of service of other statutory Tribunals established under various Central laws:
The Law Commission of India (LCI) in its 272nd Report on Assessmentof Statutory Frameworks of Tribunals in India released in October, 2017 called for the harmonisation of the salaries and allowances of many of the statutory Tribunals mentioned above. By then the Central Government had already taken action in this regard. LCI did not discuss the salaries and allowances paid to the Information Commissioners in its report. Perhaps this was omitted as their salaries already stood fixed at the same levels which they were recommending for other statutory Tribunals. So the spirit of the recommendations of LCI applies equally to the Information Commissions and there is no reason to treat them differently.

3) The proposed amendments may violate the Information Commissioners’ right to be treated equally by the law as guaranteed under Article 14 of the Constitution:
The Information Commissions perform quasi-judicial functions much like the statutory Tribunals and Adjudicating Authorities whose salaries were hiked in June 2017.In fact, except the NGT and the Film Certification Appellate Tribunal, none of the other Statutory Tribunals or Adjudicating Authorities deal with fundamental rights matters. There is no reason why Information Commissioners should be subjected to a different treatment. So the amendment proposals do not answer satisfactorily to the test of “intelligible differentia” which is a requirement for treating unequals differently under Article 14 of the Constitution of India. So it is submitted that the amendments to the RTI Act if carried out may fall foul of the fundamental guarantee of the right to equality before law to every person.

4) The proposed amendments seek to vest excessive powers of delegated legislation with the Central Government: 
The amendment proposals are a blow to the federal scheme of the RTI Act. If enacted into law they will create two sets of laws applicable to salaries paid in the SICs- one made by the State Governments for staffers of SICs under Section 27(2) of the RTI Act and the other which the Central Government hopes to make for the State Information Commissioners. Further, the salaries of Information Commissioners in the States are paid out of the Consolidated Fund of the concerned State over which the Central Government has no control. So the RTI Amendment Bill is another example of seeking excessive delegation of powers by the Central Government.

5) The absence of consultation on the proposals prior to their finalisation is a violation of the 2014 Pre-Legislative Consultation Policy:
As already pointed out by several critics, the Central Government has not conducted any consultation with the primary stakeholders, namely, the citizenry and the Information Commissions on the amendment proposals. This is a clear violation of the 2014 policy on pre-legislative consultation which must precede all law-making exercises or amendments to existing laws.
Click here to read the full critique of the RTI Amendment Bill, 2019 and the Factsheets comparing the Statutory Tribunals and Adjudicating Authorities with the Information Commissions under the following criteria:
a) size of the Tribunal/Appellate Tribunal or Adjudicating Authority;
b) nature of proceedings;
c)  appointing authority;
d) qualifications for appointing the Chairperson/Presiding Officer and other Members;
e) search-cum-selection process;
f) tenure;
g) erstwhile and salaries as revised in 2017;
h) the forum where their decisions may be appealed against; and
i) whether they are subject to directions from the Central Government.

CHRI trail of enquiry:  RTI Amendment Bill, 2019 | CHRI’s critique of the Amendment Bill

First published on https://www.humanrightsinitiative.org/
 

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Having spent the last five years as a member of the Central Information Commission–the RTI watchdog body–how would you rate the current health of RTI?
I would say 9 out of 10. Our attention naturally goes to the cases where information is not given. But I heard around 20,000 cases in my tenure. In most, I ordered disclosure and my orders were followed. I tried to instil an attitude of disclosure in officers who appeared before me, and I did see a change over the years–in regulatory bodies like the Bar Council and the Medical Council, in ministries like law, environment [forests and climate change], and in the Delhi government. Six million RTI requests are reportedly filed each year in India. This shows how widely the Act is being used. But I would point out that 60% to 70% of RTI requests are either for employee grievance redressal, or entitlement grievance redressal. RTIs are being filed to ask about promotions, pensions. Or for something as basic as a copy of a government order which should already be in the public domain. This shows the scale of misgovernance.

Many RTI activists and transparency advocates might disagree with your ‘9’ rating, and argue that the government has progressively undermined the right to information. For example, by denying information of public significance such as on large wilful loan defaulters, or by not filling vacancies in the CIC.
RTI activists are raising several important issues, and I acknowledge those and even concur with them. On December 10, 2018, I wrote an open letter to the head of the nation, the President of India–my effective boss–asking that the eight vacancies in the CIC [including the chief information commissioner] be urgently filled. More importantly, the quality of CIC orders reflects the quality of appointments. For this, the CIC needs to be more representative. The RTI Act specifies that commissioners should be appointed from fields such as law, media, science and technology, social service, management, journalism, and administration and governance. Why does the government only favour retired bureaucrats for the CIC? Nowhere does the Act state that the chief information commissioner should only be from the bureaucracy. The government should make the next set of appointments, including the chief, from all these other fields. A retired bureaucrat should be appointed only after assessing what he or she has done for the cause of transparency over their career, what is their inclination towards transparency. Information commissions [central and state] have developed an image of becoming the place for retired bureaucrats. The government should put an end to this image. [On December 13, in a landmark directive, the Supreme Court asked the government to disclose details of the applications it has received for filling vacancies in the CIC, while hearing a public interest litigation by RTI activist Anjali Bhardwaj on CIC appointments.]

The government has also undermined the RTI Act by steadily diluting the post of the Public Information Officer (PIO). The junior-most officers, including Section Officers, are servicing RTI requests, while senior officers with decision-making powers have distanced themselves from engaging with RTI requests.
Yes, that is absolutely true. The decision to deny information often takes place at much higher levels, but the PIO, who is a small fry in the entire mechanism, is the one replying to your RTI request. The way I addressed this was to ask the PIO who appeared before me, “Where is the information held up? Tell me, or be ready to pay a penalty of Rs 25,000.” They would say, “Sir, it is not in my hands.” [I would ask], “Then in whose hands is it?” I would then make the relevant official the deemed PIO. That is how I ended up issuing show cause notices to a university vice-chancellor and registrar, a commission chairperson, and the RBI governor. This last case became big news. But I was doing it throughout my tenure in several departments, whenever the need arose.

About the RBI case, which was among the last and most significant ones you heard, you issued a show cause notice to the RBI governor this November for not complying with the RTI Act, and ordered that the information sought on wilful defaulters with loans above Rs 50 crore be disclosed. But the RBI has challenged your order in the Bombay High Court, saying “such disclosure could harm the national economy”, and obtained an interim stay on the order on December 14, 2018.
The RBI’s stand is most unfortunate. Its arguments that information about big loan defaulters is private, and disclosing it endangers national security and harms the country’s economic interests, are absurd. (These are) most unconstitutional and irresponsible arguments. It is just a cover-up for corruption and mismanagement. By not disclosing who the wilful defaulters are, you are hiding the involvement of bankers–that is my suspicion, that you have deliberately supported the defaulting process. Thousands of crores of rupees of public money have been given as loans. Some powerful parties have then defaulted. Why should this information be kept secret from the people? This is a total violation of the Act, a total illegality.

In fact, the issue of loan defaulters is a classic case where transparency is necessary for solving such problems. With non-transparency, you have facilitated darkness to commit fraud, mischief, criminal negligence, regulatory defects and the evergreening of loans. Ultimately the burden of the loan appears to be unbearable. And then you come out and say it is a non-performing asset (NPA). This is not a business secret of the banks, but a business defect.

One purpose of RTI was to question such bad governance. In fact, RBI has gone so far as to violate a prior Supreme Court ruling upholding several orders by the previous commissioner Shailesh Gandhi [directing RBI to disclose information]. The top man of the RBI should be hauled up for contempt of court. But they have taken a policy decision to not disclose. They announce on their website which information will not be disclosed, citing various exclusion clauses of RTI as ‘the enabling provision’. This is totally wrong. Now they have gone to court [against the CIC order to disclose the wilful defaulters list]. A common person might be able to file a 10-rupee RTI application. How will they have the wherewithal to face a powerful body like RBI in the Supreme Court? Is this not intimidation? In such a case, it is the job of the CIC to come to the rescue of the common citizen.

RBI’s response, challenging your notice in the Bombay High Court, also reflects a wider phenomenon of authorities challenging CIC orders in court to avoid disclosure.
Information commissions were supposed to be the site of final appeal. But courts have been turned into a site of third appeal by governments just to avoid giving information. A writ petition was meant to be a tool by which citizens could address the violation of their fundamental rights. Instead, governments are filing writ petitions against Information commissions and citizens, pleading for the non-disclosure of information. Look at the farce! Going by some media reports, there are 1,700 writ petitions filed by the government as of date against CIC orders. The government should ask itself, what message it is giving to the people by filing all these cases. You are aiming at intimidating the CIC, taming it. In some instances, cases are filed making individual commissioners respondents. In one case filed by Gujarat University [here, the university implemented Acharyulu’s order to disclose information on the postgraduate degree of Prime Minister Narendra Modi, but also moved the Gujarat High Court for a stay], I have been made Respondents 1, 2 and 3! Respondent 1 M Sridhar Acharyulu, Respondent 2 M Sridhar Acharyulu, Information Commissioner, and Respondent 3, Information Commissioner.

The government’s RTI Act amendment bill is also being read as an attempt to tame the CIC.
The amendment, if passed, will not just tame the CIC and RTI Act, but completely finish it. Currently, under the Act, the term of a commissioner is fixed. The independence of the CIC draws upon making it difficult to remove commissioners. The amendment will end commissioners’ independence and turn them into glorified clerks. Their tenure will be at the government’s pleasure. Citizens should strongly oppose these amendments. The Srikrishna Committee report [on the proposed Personal Data Protection Bill, 2018], which also proposes amending the RTI Act, is another big threat. In my term as commissioner, I saw Section 8.1.J [denying information on the grounds of it being ‘personal information’] of the RTI Act being widely abused by PIOs. Now, in the guise of privacy, the Srikrishna Committee’s proposed amendment will build a watertight compartment around a public authority, which will not provide even a drop of information. It is a very big threat.

How could we strengthen RTI, given these challenges?
The general election will be held in a few months, and citizens need to question political parties about their stand on RTI, and how committed they are to transparency. All political parties should commit to the following in their manifestos: That they will not amend or dilute the RTI Act; that they will implement Section 4 [the suo moto disclosure clause of the Act] in letter and spirit; that they will appoint information commissioners promptly and choose 90% of them from non-bureaucratic fields; and that they will bring themselves under RTI. Citizens should evaluate parties on these aspects before casting their vote. They should strongly resist any attempt to dilute RTI, and file RTI requests, and use the Act for public purpose.

(Chitrangada Choudhury is an independent journalist and researcher, working on issues of indigenous and rural communities, land and forest rights, and resource justice. Follow her on Twitter @ChitrangadaC)

Courtesy: India Spend
 

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