Ominous clouds hover over India’s “Sunshine Legislation”, enacted with great fanfare in 2005. Amidst renewed concern over its functioning across states, the Right to Information Act (RTI) is set to complete 17 years this October. A damning indictment of the various Information Commissions — “acting as a major bottleneck in effective implementation of the RTI Law” — comes from the report of the Sarthak Nagrik Sangathan (SNS) 2021.
A huge backlog of second appeals, lengthy wait time for hearings, hesitancy in posting penalties and increasing opacity in the working of the commissions have led SNS to this conclusion. The commissions have been plagued with vacancies, poor choice of commissioners, untrained staff and a non-cooperative set of public information officers (PIOs). The sufferers, however, are the applicants.
Apart from the PIOs’ general inexperience and unprofessionalism, comes the threat to some RTI activists who seek information to expose corruption. In June, a contractor was murdered in Vidisha, Madhya Pradesh, for asking too many questions relating to the public works department. According to the local police, he had a running feud with another road contractor and too many RTI queries over the quality of roads were upsetting several officials and interested parties.
According to the Commonwealth Human Rights Initiative (CHRI), across India, 99 RTI activists have lost their lives, 180 assaulted and 187 were threatened since 2006. While RTI is lauded in public, it faces fierce opposition from many within the bureaucracy and the lawmakers, the two key stakeholders of the RTI regime.
An oft-repeated excuse for this disdainful attitude is the number of inane queries or those with perverse motives. The reality, however, is that such queries constitute only around 4 per cent of the total appeals and can easily be managed.
Barring some notable exceptions, the state information commissions present a disheartening picture. Vacancies are not filled; some continue without chiefs and most of them become parking slots for ex-babus. Quite a few toe the official line, suffering from a hangover of the past and disallowing any “uncomfortable” information. As on June 30, 2021, 2.56 lakh appeals were pending with 26 information commissions in the country. It will take six years and eight months to dispose of a matter in Odisha, as per the going rate, according to the SNS report.
The audacity of PIOs in some cases is confounding. An information commissioner of Madhya Pradesh issued an arrest warrant in the name of a PIO for flagrant violation of 38 summons to appear for commission hearings and non-compliance with SIC orders. The government department was equally negligent in taking disciplinary action against the PIO. Such a cavalier attitude is a great drawback for the RTI regime. How much of it owes to the downgrading of the status and tenure of the information commissioners is a moot point to consider. Any serious RTI query or one which concerns more than one government department requires intervention by higher officials, but it is the PIOs from junior ranks who attend hearings and are often clueless. Often, it requires a notice to higher authorities, in some cases, the secretary of the department, to elicit the right answer. Meanwhile, it is the junior ranks who face the wrath of the commissions and even face penalties. With CICs downgraded in rank, there will be fewer and fewer notices served to the heads of departments and senior officers to appear and answer queries.
The attitude of a few commissioners going public with their political proclivities is another cause for concern. A code of conduct must be evolved for the central and state information commissioners. It is imperative for the commissioners to keep a strict distance from government heads and officialdom. Several RTI cases are embroiled in judicial procedures. According to Shailesh Gandhi, an ex-CIC who has delved into the matter, high courts are quick to give stay orders on CICs’ decisions. The Act clearly states that the final appeal lies with the information commissions, so the appeals are masked as writs to obtain relief from high courts.
The Supreme Court in DDA vs Skipper Construction (P) Ltd made an adverse observation on the mechanical manner in which stays are granted: “High Courts must resist the temptation to exercise their writ jurisdiction in order to correct errors made by the SICs/CICs. If the High Court quashes a CIC/SIC order, it must categorically find that the order was without jurisdiction or palpably erroneous.”
In the face of such heavy odds, can the RTI regime flourish or even survive? Key stakeholders seem to be losing their enthusiasm and it is now up to the public, civil society, media, courts and finally the commissioners themselves to shore up the sagging morale of the RTI set-up. Even now, RTI crusaders are unearthing huge amounts of information of public interest and a few commissioners are standing tall, giving bold decisions benefiting the public and society at large.
The RTI Act is a sunshine legislation aimed at eradicating corruption and promoting transparency. The Indian information law, rated as one of the strongest in the world, needs to be bolstered by raising awareness amongst the people and organising rigorous training of government officials. A strong political system is a must for the RTI regime to flourish. It is imperative to ensure freedom of the press and democratic institutions, punish errant officials and maintain complete autonomy of the information commissions, in the interest of the people and the nation at large. As India emerges as a global power, the implementation of legislation like the RTI Act will be under the constant scrutiny of the comity of nations.
The writer, a former IPS officer and central information commissioner, is Chairman of Deepstrat, a New Delhi-based think tank and strategic consultancy