Friday, December 8, 2023

“There have been many challenging cases in my tenure”

As the Right To Information Act completes 18 years of its enactment, the focus once again shifts to questions of efficacy, transparency and governmental control. FORMER CHIEF INFORMATION COMMISSIONER YASHVARDHAN KUMAR SINHA, who demitted office this month, spoke to RAJSHRI RAI, editor-in-chief, APN channel, on a wide range of issues during the interaction at the India Legal Research Foundation symposium

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Rajshri Rai (RR): Right To Information (RTI) is a powerful tool in the hands of the people and has empowered the citizens. How do you see the enactment of the Act from the point of view of a Chief Information Commissioner?

Yashvardhan Kumar Sinha (YKS): It’s 18 years now since the historic RTI was passed in the Parliament. We have seen its implementation. I think that the experience gathered in the past 18 years is very important because the decisions of the adjudicating authorities over time have become a corpus (very similar to verdicts of the judiciary). At the centre, there is the Central Information Commission (CIC), and in states, it is the
State Information Commission (SIC) that adjudicates second appeals and complaints. The whole mechanism is very interesting and I think the Indian RTI Act is among the top 10 such laws existing globally.

RR: Public interest litigation and RTI Act are two of the most empowering laws extant in India. The RTI Act has empowered people. But are there any limits to the right to know and what is the mandate of the CIC in this regard?

YKS: This is a legislation for transparency, accountability and for empowering the citizens. Any citizen can seek information from any public authority, and public authority is defined in the Act. The functioning of the CIC emanates from Section 12 (4) of the Act. For SICs, it is in Section 15(4) of the Act. According to the Act, the Commission is the adjudicating authority for second appeals and complaints. So, we hear those cases which come on second appeal after the first appeal process, or if it comes as a complaint directly to Commission. Our role is clearly defined in the Act and so are the limitations. These relate to the type of information which can be disseminated to the public. Exemptions are prescribed in Section 8(1). These exemptions are quite comprehensive and it is important that the interests of the government and citizens are balanced. This is evident in Section 8(1). This Section places limits on our powers to order dissemination of information. As far as our mandate is concerned, it is laid down in Sections 18, 19 and 20 of the Act. If information is not given or not provided in time or has been denied in a malafide manner, there are provisions for imposition of penalty which are also specified.

RR: Often we find that RTI application is rejected without giving any reason. Are we entitled to know the cause of rejection of our application? Secondly, there is an inherent tension between the Official Secrets Act of 1923 and the RTI Act. How do you explain these two facets?

YKS: The Public Information Officer (PIO) should normally provide information in response to RTI applications. In case the information is withheld or denied, a reason should be provided. The most common reason is the claim by PIOs that they do not have the information or it is not available in the requested format. Another common reason is the exemptions mentioned in Section 8(1) (a) to (j) of the Act. If a provision citing exemption from disclosure of information is invoked, it should be justified as well. For example, if someone seeks the number of nuclear warheads possessed by India then in case the information is denied, it would be for a valid reason under Section 8(1)(a). However, in other cases, the public authority has to justify invoking the exemptions provided in the Act. Merely denying information will not suffice. A reason has to be given.

RR: In your tenure as CIC which was the most challenging application or case that you came across?

YKS: There have been many challenging cases in my tenure of 4 years and 10 months. I have heard more than 14,000 cases. For example in cases of police investigations, the queries from people are usually denied by the police. However, it is the right of affected persons to seek requisite information from the police. Merely stating that the matter is under investigation and invoking Section 8(1) (h) of the Act without providing justification is not tenable. I have come across assertions that I have not decided many cases in public interest, and that I have only protected the government. I would like to say that the RTI has become an industry where some people with vested interests file RTI applications with a hidden agenda. In some cases, disaffected employees target their peers or seniors. We see this happening all the time. During Covid, there were queries seeking the source code of the Cowin App and details of the manufacturing of the Covaxin vaccine. In the midst of the rampant pandemic, such questions were being asked. We had to decide on that. Indian pharma companies had indigenously developed vaccines and certain vested interests wanted information disclosed regarding this. This could jeopardise their competitive position vis-a-vis international pharma companies who were seeking access to the Indian market. Should we order disclosure of such critical information? That was a challenge and we decided accordingly. I recall that with regard to disclosure of OMR sheets of candidates appearing for selection for government jobs, the concerned public authority was denying the same to the candidates under RTI. In larger public interest in a plethora of cases, I decided that these should be disclosed to the candidates concerned.

RR: The Supreme Court also comes under the purview of the RTI. Any common citizen can now apply online to get information from the Supreme Court under the RTI Act. How successful has this initiative been? What kind of information is normally asked?

YKS: The Supreme Court has always been under the purview of the RTI Act, but after the 2019 decision of the Supreme Court in the case of Subhash Chandra Aggarwal, the legal position has become well established. While other public authorities had instituted online RTI applications, the Supreme Court also followed suit. That was a welcome development. Most of the queries before the Supreme Court relate to personal cases of the applicants. The information relating to cases decided on the judicial side can be accessed by following court rules. But people want to access information through an RTI application which costs Rs 10 only. This in itself is not prohibited, but when alternate efficacious remedies in the form of court rules exist, they should be followed.

Secondly, about the Official Secret Act, that is very important because Section 22 states that the RTI Act has an overriding effect over other Acts as far as dissemination of information is concerned. However, there are exceptions provided in Section 8(1)(a) of the Act, which can be attracted and we have to decide to what extent we can give information.

RR: While bringing the Board of Control for Cricket in India (BCCI) under the ambit of RTI, the Supreme Court clarified the concept of public authority. Now, it is being said that not only political parties, but all NGOs should be brought under the ambit of RTI. There is also the issue of PM CARES Fund and stock exchanges which are not in RTI’s purview. Many more institutions are outside the scope of RTI. What is the rationale? Should the ambit of RTI Act be increased?

YKS: It may be recalled that the PM National Relief Fund preceded the PM CARES Fund and has not been declared a public authority. I don’t want to comment on a matter which is sub-judice in the Delhi High Court. With respect to the BCCI, the CIC in 2018 decided that it is a public authority under Section 2(h) of the RTI Act, but the Madras High Court has given a stay. As per my knowledge that stay order is still valid as the matter has not attained finality.

RR: On August 1, 2019, the government had taken over the power to decide the salary and tenure of the Information Commissioners by amending the RTI Act. As per this amendment, the salary and tenure of the Commissioners of both the central and state commissions is now decided by the central government. This was seen as a big blow to the independence of the Information Commission. How has the work of the Information Commissioner been affected?

YKS: I took the oath of the office of the Central Information Commissioner on January 1, 2019, when the original Act, the unamended Act was in force, under which our salary and allowances were prescribed. When I became the Chief Information Commissioner, the Act had been amended. I can assure you that there was no change in my work subsequent to the amendment of the Act. There was no impact on my orders and decisions. In my tenure of 4 years and 10 months, there was no influence exerted on me by the government or any of its functionaries. This amendment is more administrative in nature. After the amendment of the Act, some perks were taken away and the status of the Information Commissioners was reduced, but as far as the work is concerned, there have not been any changes. This has been my personal experience.

RR: There are two questions. First, across the country, RTI activists are put to death by unscrupulous elements. How do you respond to that? Secondly, though there is provision for information commissions for all states, there are many states where the commission is not fully functional. Many state commissions don’t have commissioners or proper staff. In short, the commissions are not fully active. Why is this happening?

YKS: It is very sad that activists in some cases have been targeted. However, this is not exclusive to any particular state or region. This is a law and order issue and a problem regarding safety of citizens, which is a state subject. As regards the work of various State Information Commissions, it is the duty of the respective state governments to ensure adequate quorum. The state governments are empowered to appoint Information Commissioners under the Act. There are around 26 or 27 commissions and some are more active than the others. When I became the Chief Information Commissioner, there were 39,000 second appeals and complaints pending in the CIC. Before I demitted office, on April 1, 2023, there were roughly 19,000 cases pending. The pendency had been reduced to less than half. It depends on the manner in which cases are disposed of and the availability of commissioners. Pendency is largely because of the lack of quorum in various commissions. The State Information Commissions function independently of the Central Information Commission, as laid down in the Act. Of course, we have a national federation where we meet annually and discuss issues relating to implementation of the Act and share best practices.

RR: It is being said that the recently passed Data Protection Act violates RTI through the back door. Earlier, there was an exemption to provide personal information under the RTI. Section 8(1)(j) of the RTI Act states that personal information may be exempt if it is not related to a public activity or interest or would cause unwarranted invasion of the
privacy of an individual. It is now within the discretion of the Information Commissioner to decide what information an applicant should be permitted access to. By a rough estimate, this Section is responsible for 35% of denials for information. Will this not destroy the spirit of the RTI?

YKS: As far as I see it, the amendment has impacted 8(1)(j) of the Act. The two provisos regarding larger public interest and information which can be revealed to Parliament and state legislatures have been done away with. This has to be tackled on a case-to-case basis. For example, the medical records of a female employee, or for that matter any employee, is sensitive information, but if Parliament/state legislatures seek to peruse the same, it cannot be denied. However, that does not necessarily mean that such information should be in the public domain. Larger public interest is decided by the Commission or the first appellate authority or even the PIO, and people have different viewpoints as to what constitutes larger public interest. Section 8(2) is still part of the Act and refers to larger public interest. Thus, it is difficult to conclude at present that the Data Protection Act has adversely impacted the RTI Act.

RR: What we are witnessing is executive overreach. The Puttaswamy judicial verdict which championed the cause of personal privacy is being cited for curbing RTI. How fair is this?

YKS: There is a body of landmark judgments, such as Subhas Chandra Aggarwal and Aditya Bandopadhyay and others that guide us as to what extent information can be provided and what constitutes personal information. This is a leitmotif for us, and our orders are guided by these decisions of the apex court. This needs to be understood. As regards building general awareness about the RTI Act, while some Information Commissions conduct workshops, seminars, etc., this outreach should be undertaken by the appropriate governments whether it is the central or state governments. Some states undertake this task even at tehsil, block and district levels. This helps in creating awareness which, in turn, empowers citizens to seek information.

RR: The Central Information Commission ruled in January 2006 that, “a citizen has the right to seek information contained in file notings and no file (or information) would be complete without note-sheets having file notings.” In short, “file notings” are considered an integral part of “information” and, as the CIC stated, “file notings are not, as a matter of law, exempt from disclosure”. On July 20, 2006, the Union cabinet approved an Amendment Bill to the RTI Act, 2005, that would exclude notings made by officials on files related to all areas except social and development sector projects. Can there be a demand that file notings be made public?

YKS: As far as file notings are concerned, I do not believe that every file noting should be disclosed. A file comprises the noting side and the correspondence side. Disclosure of a particular file noting would depend on whether it attracts any exemption under Section 8(1) of the RTI Act. In case file notings have to be disclosed, the names of the officials concerned should be redacted so as not to infringe the privacy of the concerned official in terms of the exemptions provided under the Act.

RR: In view of your long tenure and experience, what suggestion would you like to give to improve the RTI Act?

YKS: The Commission submits a formal report to the Parliament every year as mandated in the Act. We also give suggestions to the government for more effective implementation of the Act. It has been 18 years since the enactment of the Act. To create better awareness, the government should sensitise not only the information seeker, but also the information provider. Citizens would be better aware of how the Act can benefit them and the PIOs would be able to respond to information seekers more accurately.

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