RTI horizon: Expanding or Shrinking?
The 6th national convention on the Right to Information was organised by the national RTI watchdog, the Central Information Commission, at Vigyan Bhavan on 14 and 15 Oct 2011. The theme of the convention was: Right to Information – Expanding Horizons. But right from the moment the Prime Minister delivered the inaugural address, doubts arose whether the horizon was expanding or shrinking. Administratively well organised, the convention was, at the end of the day, devoid of substance.
The security instructions received along with the invitation was in itself an irritant – it forbade invitees from even taking their mobile phones and cameras to the venue! As a matter of personal choice I do not use a mobile phone myself, but I can vouch for the horror of those who get out of their homes and realise that they have forgotten their mobile phones! But the PM being the VVIP (whatever that means in a social, democratic republic!) and his security being paramount for those over whom he himself apparently has no control, it was a fait accompli situation for those who had come from far and wide to hear their PM in person.
Yet the security still managed to shock. The first one on duty refused to let even the day's news paper be taken inside! His argument: it could be rolled and used to attack the VVIP! A second shock came later (after the inauguration) when mobiles were permitted and almost everyone kept walking in and out of the hall to make or receive a call!
Dr. Manmohan Singh’s inaugural address set the tone for the shrinking of horizons for right to information when he said that the RTI Act will have to be revisited to ensure that there is a balance between ‘public interest’ and ‘burden on the public authority’. Yet this shocking assertion was not unexpected in the light of the government’s recent efforts to amend the Act to deny file notings, which really defeats the very purpose of RTI, and to make the applicant provide ‘reasons’ for seeking the information, which is surely a ploy to dump the law into the nearest garbage bin! For the next logical step will be to give locus standi or direct personal interest for seeking the information, thereby negating the very concept of public purpose and public good.
The Right to Information Act is so far one law that is unique because of its simplicity, lack of ambiguity and citizen-friendly nature. It does require amendments to remove some difficulties - for example, delegation of authority to 'competent authorities' to frame rules specifying the fees, cost etc without insisting on a cap for these, which under normal course would be the fees, cost etc prescribed by the central government.
In fact, this delegation of authority has resulted in many high courts introducing exorbitant fees, cost, and even fees for 1st appeal. It needs to be reiterated that the 1st appeal is only an opportunity given to the public authority to correct any mistakes committed by its own public information officers and limit the damages that s/he may have to suffer, if available, and disclose-able information has been denied or not provided in time.
To illustrate this further, the Act mandates that the information commissioners shall impose penalty at the rate of Rs 250/- per day for every day of delay subject to a maximum of Rs 25,000/-. Simple mathematics tells one that the penalty will keep increasing for every day of delay up to 100 days. So, if the 1st appellate authority acts diligently, information can be provided within, say, 60 days. That is with a delay of just 30 days. But if the 1st appellate authority misses the bus and the matter goes to the information commissioners, by the time the 2nd appeal is considered and orders issued, the delay will invariably exceed 100 days and the penalty will definitely hit the roof!
When this issue came up for discussion and a question was raised about the relevance of asking if a competent authority can prescribe a fee more than what is prescribed by the government when the high courts have done it, the Moderator, a vice chancellor of a law university, responded: you are asking this because you presume that the high courts are right!
Prof Jagdeep Chhokar bluntly drove home the government’s lack of credibility when he said that if the government was allowed to amend the Act, instead of the three or four amendments truly required, a dozen unnecessary amendments would be made to dilute the Act!
One continuous refrain was the burden on the public information officers, but the response was equally steadfast about the need to comply with the provisions for proactive disclosures. Needless to say, much time was wasted by the representatives of various public authorities harping on this issue in spite of the simple solution inherent in the law itself.
While it is true that every public information officer is designated as such and has to perform these duties in addition to his regular duties, it is equally true that this additional task is not
such an overwhelming burden as the authorities tried to suggest. Particularly the claim that it is the PIO who is punished even if the custodian of the information fails to part with the available information in time, was either due to the deplorable level of awareness of the law even after 6 years of its existence, or an outright effort to mislead the less knowledgeable in the audience. The activists participating in the discussions were never moved by these gimmicks.
The activists expressed concern regarding the willful flouting of the law by the information commissioners when it came to imposing the penalties mandated for delay in providing information.
This factor not only defanged the law, but caused immense loss to the exchequer. While in private discussions at least one information commissioner admitted that he had imposed penalty for non-compliance with the law on proactive disclosure, most maintained that it could not be done! Again it was left to Prof Chhokar to drive home the point that all was not well with the selection process of information commissioners themselves, and this was affecting the implementation of the law and in letter and spirit and adversely affecting its efficacy.
At least one chief information commissioner got exposed when he made tall claims of conducting hearings in various district headquarters to facilitate participation by the public authorities and the complainants/appellants. An activist from his state confronted him and demanded that he name the districts where the last three hearings were allegedly conducted and the next three districts allegedly slotted for such hearings. When he had no reply, the activist sharply told him not to mislead the audience!
The delegates also focused on the issue of the Dept of Personnel and Training, the nodal department for implementing the RTI Act throughout the country, trying to subvert the law. Apart from the idiotic order issued that every complaint or appeal to the Central Information Commission should be heard by all information commissioners together, the latest was an office memorandum directing the public authorities to provide only that information that was available with them, and not to forward applications to those public authorities who would be holding them.
When a state information commissioner sought clarification on the legal validity of this office memorandum, the Central Information Commissioner on the panel expressed surprise that such a clarification was being sought at all, as the information commissioners are bound only by the Act and the rules promulgated by the competent authorities (which DoPT or general administration departments in the states are not). Hence, he said, while considering complaints and appeals, the only things that mattered were the Act and the relevant rules. A participant added fuel to the fire by stating that the OM also stated that it was being issued after consultation with the Central Information Commission and application to the CIC for documents related to the consultation elicited the reply that there were no such documents available!
It is presumed that the Chief Information Commissioner of the CIC, who was present, would have taken note of this deplorable effort of the DoPT to encourage public authorities to flout the law and misusing the CIC’s name for that purpose. He is expected to bring the perpetuators of the crime before the law.
It is pertinent to note that the credibility of the Chief Information Commissioner of the Central Information Commission is itself questionable, beginning with his own appointment.
Documents accessed by activists about the spadework done by the DoPT for selection of Central Information Commissioners by a committee headed by the PM, indicates more manipulation than a fair and transparent process. It may be appropriate to suggest that the observations made by the apex court in the matter of appointment of the Central Vigilance Commissioner should apply equally to the appointment of Information Commissioners, and in fact, to all appointments to quasi judicial organisations in the country.
It is pertinent that the present Chief Information Commissioner of the CIC was Secretary, DoPT, before his present assignment! It was probably during his tenure that the DoPT website put up the notice that there was no need to disclose file notings, and it continued to mislead public authorities for a long time even after the then CIC had repeatedly directed DoPT to remove it forthwith!
During a private conversation on the sidelines of the deliberations, another facet of the Chief Information Commissioner’s attitude to transparency was revealed. This was in the context of the information sought by citizens from the BPL category. His query – what will these people do with the information obtained and whether it will substitute for food – proves him to be an immense misfit for his present assignment!
Indeed, during his welcome speech itself, he cribbed about the ‘problems’ of the Commission not having a permanent office building for itself and working from two locations. I do not know if the burden of information provided by the information commissioner from Maharashtra about it working from 5 locations got registered with the Central CIC. It also needs to be asked why the Central Information Commission should not establish 10 benches in different parts of the country to facilitate participation in hearings by the PIOs/FAAs and complainants/appellants. Even when public authorities are not ordered to compensate the citizens, there is immense loss to the exchequer when the PIOs/FAAs have to travel from all nooks and corners of the country to the national capital for hearings at the only location of the CIC!
This report would be incomplete if I fail to mention the only new bit of information gained during the convention - that a Private Member's Bill has been introduced in Parliament to amend Sec 6 and 7 of the RTI Act.
If the amendments come through, every applicant will have to give reasons why s/he is seeking the information, and if the reason(s) is/are not given s/he can be denied information on that ground alone! It is not known if the public information officer is also being given any discretion to decide if the reason provided is valid or not (in his/her opinion). But whatever the outcome, there is no doubt that this is a retrograde step that needs to be opposed tooth and nail.
The chief guest at the valedictory function was the Hon’ble Nitish Kumar, Chief Minister of Bihar. He waxed, with some eloquence, on the Jaankaari scheme – a model appreciated by all, including the UPA chairperson – and the newly introduced Right to Service Bill.
The call centre model of obtaining information about and under the RTI Act was to be adopted even by the UPA government, but seems to have made no headway in the last two years! Still, to prove he was not beyond human frailties, Nitish also faltered by claiming that 65 years is no age to retire and that information commissioners should be allowed to serve longer.
This author was reminded of a quip: a person who is not an idealist at 20 has no heart; s/he who is not a pragmatist at 40 has no head. We all agree that the Right to Information Act is a path breaking law. It is in fact the only law that we have till date that puts the citizen where he should be in a democracy – at the centre of things, like a circus ringmaster. It would certainly have been better if we had younger blood, unpolluted by a misplaced sense of loyalty and camaraderie, to enforce this new generation law, which many hailed as the most important document after the Constitution. To my mind, a person around 30 years with enough of heart and pragmatism would be a better bet to enforce this law in letter and spirit.
Disclaimer: The views expressed in this writing are solely of the author and do not necessarily reflect the views or policies of League of India, its Editorial Board or the business and socio-political interests that they might represent.
This article was first published on Vijayvaani website here