Above: An RTI protest in Delhi/Photo: Anil Shakya

The RTI Act is dying a slow death as Public Information Officers violate it by withholding vital information sought by the public. Why aren’t they taken to task and penalised by Information Commissions?

By MG Devasahayam

Enacted in 2005, the Right to Information Act marks its 14th anniversary this year. On this occasion, Chief Information Commissioner (CIC) Sudhir Bhargava accused government officials of violating the Act with impunity. This is what he said at a public meeting organised by the Satark Nagrik Sangathan (SNS), a citizens’ group: “Penalties were needed to ensure effective implementation of the transparency law, but indicated that the state and central Information Commissions (ICs) had their powers curbed by judicial orders requiring proof of mala fide intent on the part of the offender. Public Information Officers (PIOs) take advantage of this as it is very hard to prove mala fide intent.” This is bizarre considering that eminent jurists like former Supreme Court judge Madan Lokur had emphasised the need for penalties to be imposed against the erring officials.

As per a report card prepared by the SNS and the Centre for Equity Studies, ICs failed to impose penalties in about 97 percent of the cases where violations took place in 2018-19. The State Commissions of Tamil Nadu, Sikkim, Mizoram and Tripura did not impose penalties in any case. Apart from fines, the Commissions also have the power to recommend disciplinary action against officials for persistent violations of the RTI Act. Only 10 states invoked these powers.

The report card observes: “The failure of the Commissions to impose penalties in clearly deserving cases, sends a signal to the PIOs that violating the law will not invite any serious consequences. This destroys the basic framework of incentives and disincentives built into the RTI law, promotes a culture of impunity and exasperates applicants who seek information at a high cost and often against great odds.”

This laxity in imposing penalties allows PIOs to take liberties with the RTI Act at the cost of the public and makes a mockery of the transparency law.

Let us see a typical example from the farthest corner of India, Kanyakumari. A retired principal scientist in the government sent an RTI application in May 2017 to the PIO, National Highway Authority of India, seeking information on the alignment of the 71-km “duplicate” National Highway-47 and the panchayats, villages, tanks/water bodies affected thereof. This was the brazen reply received: “…it is supposed that the information being asked purposefully to freeze/drag the NH-47 four-laning project which is an economic important project of Government of India by creating various legal/technical issues. Also, disclosure of above information is dangerous and insecure…. Hence the information sought by you which would prejudicially affect economic interest of Government could not be disclosed under section 8 (1) (a) and 8 (1) (g) of Right to Information Act, 2005.” Appeals against this reply went into a black hole and this incomplete NH-47 project, riddled with corruption, led to a scam of around Rs 5,000 crore.

This is the kind of reply most RTI applicants are getting these days from PIOs. First appeal within the department does not make much difference and the second and final appeal lies with the ICs which are increasingly becoming functus officio (when the mandate expires).

From evidence, it appears that the functioning of ICs is a major hurdle in the effective implementation of the RTI law.

The main reason is the failure of central and state governments to promptly appoint commissioners to central and state commissions. In February 2019, the Supreme Court in its judgment on a PIL regarding the non-appointment of ICs ruled that their proper functioning with adequate number of commissioners is vital for effective implementation of the RTI Act. The Court gave specific directions to ensure the timely appointment of commissioners, stating that the process for filling up of a vacancy should be initiated well before it is likely to occur.

Despite such specific intervention from the Supreme Court, four vacancies continue to remain unfilled in the CIC since January 1, 2019, with the backlog of appeals steadily rising every month. As for State Information Commissions (SICs), several are non-functional or functioning at a reduced capacity despite large backlogs as the posts of Commissioners and CICs remain vacant. The SIC of Andhra Pradesh, which continued to function as the Information Commission of both Andhra Pradesh and Telangana after the formation of the latter, became defunct in May 2017 when all the serving Commissioners retired. It remained non-functional for 17 months until October 2018, when, on the directions of the Supreme Court, three Information Commissioners were appointed. But a CIC has still not been appointed.

In Tripura, the SIC was functioning with only the CIC, who retired in April 2019. Since then, no new appointment had been made. As such, the SIC of Tripura had been completely defunct for over six months. Maharashtra, Karnataka, Uttar Pradesh, Kerala, Telangana, Odisha and West Bengal have all been functioning with less than the sanctioned number of ICs, leading to a huge rise in pending cases.

In Maharashtra, the number of pending cases stood at 46,000 appeals and complaints on March 31, 2019. In Uttar Pradesh, the number of pending cases grew from 47,000 on January 1, 2019 to 51,682 by the end of February. Similar is the case with the Central Commission and most SICs.

Though the RTI Act states that Commissioners should be appointed from diverse backgrounds, 58 percent of them are retired government officials. Likewise, of the 115 CICs, an overwhelming 83 percent were retired government servants, with 64 percent being former IAS officers. The appointment of ICs has virtually become a conferment of sinecures on pliable officials. This led a former CIC to remark that “governments have shown their dislike towards the institution by posting the most hostile bureaucrats as commissioners, ostensibly to safeguard their embarrassing truths”.

Also, the setting up of online portals for Indian citizens and NRIs to apply for information under the RTI Act has been dismal. Except for Maharashtra and Delhi, no other state has established such a portal. This compels the citizens to make a physical application and pursue the same. This is difficult and costly for those living in far-off places as well as NRIs. Besides, the cumbersome manual process makes Section 7(1) of the RTI Act, which provides for disclosure of information if it concerns the life or liberty of a person within 48 hours, almost redundant.

Faced with skulduggery, the last few years have been the worst for the RTI Act as far as transparency and information disclosure are concerned. It peaked with the case that concerned the educational qualification of Prime Minister Narendra Modi. In his order of December 21, 2016, former CIC Sridhar Acharyulu allowed inspection of Delhi University’s 1978 BA degree records that were supposed to include that of Modi. In the process, he overruled the decision of the Delhi University (DU) PIO to deny this information on the ground that it would invade the privacy of students and that the information “has no relationship to any public activity or interest”. Soon after, the HRD segment of Acharyulu’s jurisdiction was taken away from him.

DU challenged the CIC’s order in the Delhi High Court. It invoked the RTI Act’s provision pertaining to privacy (Section 8(1)(j)) and fiduciary relationship (Section 8(1)(e)). The High Court stayed the IC’s order in January 2017. Appearing for DU, Additional Solicitor General Tushar Mehta and the standing counsel for the central government, Arun Bhardwaj, submitted that the CIC order had “far-reaching adverse consequences for the petitioner and all universities in the country, which hold degrees of crores of students in a fiduciary capacity”. But a university degree is a transparent document awarded in full public view, displayed proudly and attached with applications for admissions/jobs and filing for electoral offices. Yet, the case has not seen the light of  day. DU has succeeded in obtaining a series of adjournments in the Delhi High Court on frivolous grounds and has so far ensured that this degree certificate remains hidden.

Celebrating such “transparency and openness”, Union Home Minister Amit Shah, while addressing the 14th annual convention of the CIC in Delhi, claimed that RTI applications were declining because of the transparent system of governance being practised. There was no reference to the hurried RTI-killing Amendment carried out recently to suppress truths about the functioning of the government and its instrumentalities.

It is believed that the prime minister’s education case is one among the five that led to the amendment.

Another one is to protect the Election Commission from searching queries on the unfair conduct of the recent parliamentary elections.

Throttled by the government and endangered by non-compliance, the RTI Act is tottering. All we can say in the manner of the French is: “Le roi est mort, vive le roi (The RTI Act is dying, long live the RTI Act).”

—The writer is a former Army and IAS officer