Tough act to follow

Ever since it was introduced in 2005 to ensure transparency, the legislation has left activists at the mercy of government servants who want to protect their turf

By Farzand Ahmed

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Recently, the Central Infor-mation Commission (CIC) gave a miss to the Right to Information (RTI) Act’s tenth anniversary celebrations. The Reason: The Modi government forgot to appoint a Chief Information Commissioner. So, even as the government promises good governance, transparency is given the go-by. And this is not just at the center, but in states too, where efforts are being made to weaken the law.

RTI was the strongest weapon available to people to make the bureaucracy and politicians accountable. But, the attitude of governments and bureaucrats towards those seeking information has made these individuals prone to several risks.

EMPTY WORDS?

Anupama Jha, regional consultant, Trace International, and former executive director, Transparency International India, says two anti-corruption bodies in India, Central Vigilance Commission and CIC, are headless. “Prime Minister Narendra Modi gave a catchy slogan—“Make in India”—and invited industrialists and entrepreneurs from abroad to come and invest here. How will foreign companies come and invest unless the government ensures good governance through transparency and makes India corruption-free,” she asks.

Sadly, information seekers are often at the receiving end of the anger by people in high places. They are either harassed or killed. According to data collected by the Common-wealth Human Rights Initiatives, in the first eight years of RTI in India, 32 information seekers were killed and there were 251 cases of them being harassed, attacked and mentally tortured.

Data reveals that Maharashtra tops among states with the largest number of murders and attacks—nine and 53 respectively—due to RTI. It is followed by Gujarat with three murders and 34 attacks. In fact, on October 17, 2014, the governor-ruled Maharashtra issued a directive in the form of a government resolution, asking all departments and offices not to provide any information under the RTI Act if it “does not constitute any public interest”.

While government officials say this is meant to restrict those misusing RTI, activists are up in arms, describing it as a move to weaken the RTI law.

(This image) An RTI protest for Lokpal Bill; (Featured image) The UPA government was embarrassed by questions being asked about the DLF-Robert Vadra land deal due to RTI

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RTI Victims

SHIV PRAKASH RAI

The 56-year-old social activist filed nine RTI petitions seeking information about implementation of a solar light scheme in the
villages of Buxar district. The district collector resisted it. Rai kept insisting. To his utter surprise, one day he received a call from the collector’s office asking him to come there. When he went, the collector gave Rai nine blank sheets of paper and asked him to write that he had received the information he wanted. Rai refused. The collector immediately got an FIR filed against him and Rai was jailed for 29 days. As the matter became serious, the investigation was handed over to the police superintendent who found the charges false. The case was withdrawn and Rai released.

SHEHLA MASOOD

The 38-year-old Bhopal-based activist was killed allegedly by the forest mafia. Shehla had filed a number of RTIs against the mafia. She was also fighting for transparency and good governance, women rights and police reforms. She constantly lived under threat. However, her killing acquired a romantic twist when investigators linked it to a woman interior designer Zahida Parvez, who was obsessed with a BJP MLA. Zahida didn’t like Shehla’s relations with the MLA and reportedly hired the killers. Zahida, along with others, was arrested, while Shehla was posthumously awarded for her relentless crusade against corruption.

SHASHIDHAR MISHRA

The cold-blooded killing of street vendor, journalist and RTI activist Shashidhar Mishra in the interiors of Bihar in 2010 was the beginning of the killing of six information seekers in the state. Mishra was preparing notes for filing an RTI application to exposecorruption at the panchayat and block level. On the night of February 16, 2010, as he tried to enter his house in Phulwaria, two assassins shot him dead.

In Bihar, between 2008 and 2013, six RTI activists were killed. And Delhi, Bihar, Uttar Pradesh, Haryana, Andhra Pradesh and Karnataka saw 10 attacks in eight years.

The attempt to curb the use of RTI has become so bad, says Shiv Prakash Rai, 56, of Nagrik Adhikar Manch, that people are simply not asking for information, fearing for their lives. Rai was jailed for 29 days in 2008 for exposing the solar lights scam in Bihar’s Buxar region.

Incidentally, RTI was the result of a prolonged struggle by people at the grassroots level. It was finally born as part of the Funda-ment Rights in 2005; parliament enacted the law on October 2005. But what started with great promise has floundered due to multifarious reasons.

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Interpretation of maladies

 

The Right to Information (RTI) Act is often described as a document next only to the constitution. While the constitution has had 98 amendments in the last 64 years, the RTI Act has faced more than 100 interpretations by the Supreme Court (SC) and various high courts (HC).

As per statistics compiled by the Pune-based Yashwantrao Chavan Academy of Development Administration, while the SC has so far passed 16 orders in connection with RTI, the Allahabad HC has passed three; Andhra Pradesh HC, five; Delhi HC, 29; Gujarat HC, four; HP HC, one; Jharkhand HC, two; Kerala HC, six; Kolkata HC, four; Mumbai HC, 22; Punjab & Haryana HC, 21; Madras
HC, 10; Goa HC, two and Karnataka HC, two.

However, some of these orders have been confusing and contradictory and were withdrawn after a hue and cry was raised. In September, the Madras HC observed that a person seeking information must disclose the purpose. This caused alarm among experts and activists. Shekhar Singh, an expert on RTI law, said the order was not only violative of law, but of an earlier SC order which had held that RTI was a fundamental right. Within a week, the HC withdrew the order, admitting that its observation was made without noticing Section 6 (2) of the RTI Act, which says that an applicant is not required to give any reason for making the request.

The SC too has withdrawn certain contentious orders. Take the famous Namit Sharma Vs Union of India case in early 2013. Here, a two-member SC bench ruled that central information commissions as well as state information commissions (SICs) should be headed by retired or serving judges. This led to many SICs suspending all hearings sine die. This ruling was next to impossible to implement, but many also felt that the judiciary was trying to enter into the territory of parliament. The government and civil society challenged this order, leading to the SC withdrawing it, admitting a “mistake of law”.

The bench also concluded it was ultimately “for parliament to consider” whether an appointment required judicial experience or not. On the other hand, another SC order was used by many information commissioners and public information officers as an excuse to delay or deny information. In the famous CBSC Vs Aditya Bandopadhyay case (9.8.2011), the SC ruled that the nation doesn’t want a scenario where 75 percent of government staff spends 75 percent of their time in collecting and furnishing information to the RTI applicant instead of discharging their duties.

(Left) RTI activist Shehla Masood was killed in cold blood

SHAKE THE SYSTEM

Activist Dhananjay Jha in Goraul in the interiors of Bihar’s Vaishali district, says that information commissions are stuffed with retired bureaucrats. How can one expect a former babu who has spent 35 years hiding facts and remaining aloof from public, be expected to help petitioners get information, he asks. Jha, too, has faced threats and his father was bashed up because he asked for information about government ration shops. Goons hired by a PDS shopkeeper even tried to kidnap his children, whereupon Jha sent his family into hiding. He finally got relief after the media highlighted his case.

In the initial years, RTI was a strong weapon in the hands of people as the CIC focused its attention on political parties. A full bench of the CIC, headed by a no-nonsense ex-IAS officer, Satyananda Mishra, on June 3, 2013, took a historic decision by bringing the all-powerful political class under the purview of RTI.

When political parties started protesting, the then prime minister, Dr Manmohan Singh, asked them to promulgate an ordinance to keep them away from the purview of the RTI Act. But it didn’t help.

Parliament, then, tried to nullify the decision through an amendment, but in the face of stiff resistance from NGOs and civil society groups, the matter was referred to a parliamentary committee.

The full bench of the CIC, while penning the landmark order said: “… we hold that INC, BJP, CPI(M), CPI, NCP and BSP have been substantially financed by the central government under section 2(h)(ii) of the RTI Act. The criticality of the role being played by these political parties and the nature of duties performed by them also point to their public character, bringing them in the ambit of Section 2(h). The constitutional and legal provisions discussed herein also point towards their character as public authorities.”
According to this full bench, political parties have been provided land in Delhi by the government for setting up offices valued at
Rs. 2,556 crore. They also got other benefits, such as free airtime on Doordarshan.

Shiv Prakash Rai (Second from left) of Nagrik Adhikar Manch went to jail for using RTI to expose solar lights scam in Buxar

 

EMBARRASSING CASES

The reason for the government wanting to weaken the Act was that it was causing a lot of embarrassment. Here are some cases: The CIC asked Pratibha Patil, the then president to declare her assets; the government was forced to disclose the then finance minister Pranab Mukherjee’s note on the 2G spectrum case, and the Robert Vadra land deal in Haryana was being questioned through RTI.
What made things worse was Manmohan Singh’s sugar-coated advisory to CIC during its annual conferences in Delhi, which shocked activists and Mishra. Here’s what he reportedly said:

• October 15, 2011: RTI needs a critical view….it should not adversely affect the “deliberative process” in the government. This was said in the wake of the 2G scam.

• October 12, 2012: There were concerns about frivolous and vexatious RTI applications “that invade personal privacy”. He said this in the wake of an RTI expose about the nexus between Robert Vadra, DLF and the Haryana government. 

The states, too, were not forthcoming and tried to weaken the law, leading to mounting cases in commissions. A study by RTI Assessment and Advocacy Group and Samay-Centre for Equity Studies in collaboration with the National Campaign for People’s Right to Information, paints an alarming picture of information commissions across the country.

The collective backlog in 23 commissions was 1.98 lakh cases as on December 31, 2013. The maximum number of appeals and complaints were pending in Uttar Pradesh (48,442), followed by Maharashtra (32,390) and the Central Information Commission (26,115). The report indicated that if an RTI petition was filed in Madhya Pradesh today, the appeal would come up after 60 years, while in West Bengal, it was a 17-year wait. In Rajasthan, the appeal would take over three years, while in Assam and Kerala, it would be two years.

Clearly, neither the center nor states are taking RTI seriously. How about some transparency here?

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 What other countries do

After successful implementation of RTI Act 2005, other countries have followed suit and brought in laws that look like the Indian version

Pakistan: Old wine in new bottles?

Pakistan was the first country in South Asia to have passed the Right to Information or Freedom of Information (FOI) Legislation in 2002. It was promulgated by General Pervez Musharraf, but didn’t have the senate’s approval. It was aimed at silencing international hostility and to cover up for the lack of democratic norms. The law was more exclusive than inclusive. However, a new Right to Information Bill 2013 patterned on India’s RTI, is in place, with identical sections. Yet, the media said people were unhappy. The Express Tribune had an analysis of the RTI Bill, headlined: “More to hide than reveal”. According to reports, bureaucrats in provinces were resisting its implementation. And in 87 percent of the cases, authorities did not respond to requests for information. RTI has miles to go here.

Bangladesh: Culture of Fear

The law came to Bangladesh late—on March 29, 2009. It earned appreciation from all quarters, yet had problems: the mindset and culture of fear. Tahmina Rahman, director for Bangladesh and South Asia, Human Rights, was quoted as saying: “We are trapped in a culture of fear.” People don’t feel they have a right to go to government offices, so they lack the courage. This was reflected in the fall in petitions seeking information—while there were 25,410 requests for information in 2009, it dropped to 11,722 in 2013. Authorities and NGOs say a lot has to be done to educate the people to use the transparency law to ensure good governance and to train the bureaucracy to cooperate with the petitioners.

Nepal: Himalayan Task

Nepal has a unique mindset and social background. Democracy came in 1990 after over 200 years of royal rule. RTI became a weapon in 2009 after the government framed regulations and implemented it. There is a national information commissioner to oversee RTI’s implementation. Yet, till 2013, there were only 300 cases filed to press for information. The government in Nepal was more interested in enacting the law than implementing it.

Other countries

Sri Lanka could not enact any law on information rights due to the prolonged civil war. Bhutan changed from monarchy to democracy in 2008. The king brought in fundamental changes in the political framework. The constitution too was clear: Bhutanese citizens had the right to information.