Prof M Sridhar Acharyulu, former Central Information Commissioner, Advisor, School of Law, Mahindra University, Hyderabad.
Famous former Judge of the Supreme Court, Justice Krishna Iyer said: “A government which functions in secrecy not only acts against democratic decency but also buries itself with its burial.”
In the administration and functioning of a democratic government, the right to access and seek information is a sine qua non for transparency, openness, and accountability. Every political party should support the RTI. It is time for every party to take a pledge to restore the attenuated Right to Information Act. Each voter should vouch safe a strong commitment to these rights so that the anti-RTI amendments are scrapped in toto. Five State Assembly elections are now around, but none are bothered about strengthening the Right to Information. Sadly, they aren’t even ready to include the issues relating to RTI in their Election manifestoes.
The Indian Constitution does not explicitly mention the Right to Information, it stems from the Right to Freedom of Speech and Expression. In State of U. P. v. Raj Narayan, the apex court, for the first time, categorically observed that the Right to Information is a fundamental right that is an integral element of Article 19(1)(a) of the constitution.
Unless people have been empowered with the right to ask relevant questions, democracies will not survive. Democracy is based on the continuous communication that flows from the government to its people.
Eviscerate the Yeoman Act by failing to fill the vacancies
The Central Information Commissioners are waiting to be appointed at the national level. The CIC, the highest appellate authority in RTI matters, has a sanctioned strength of 10 information commissioners and one chief information commissioner but is functioning with just four information commissioners. The information under RTI requests was given: 2,20,382 appeals and complaints were registered between July 1, 2022, and June 30, 2023, by 28 information commissions for whom relevant information was available. During the same period, 2,14,698 cases were disposed of by 29 commissions for which information could be obtained.
People do not have time to check whether CICs are better or more active in their discharge of duties. And the top-notch officers are least bothered if they are rendering better service or not. They are happy if they are comfortably placed with perks and privileges.
When the regime fails to act, the activists have to fight
One active RTI activist, Commodore Lokesh Batra (retired), utilizes every possible occasion to seek information through RTI. Again, it is Batra who filed an RTI request seeking to know from the government the list of people who have applied for the post of Chief Information Commissioner in response to the advertisement dated August 7, 2023.
The Central Public Information Officer of the Department of Personnel and Training said that it had received 76 applications. Four late applications have also been received—a former Information applied for the post of CIC.
Every time Anjali or another activist needed to file a PIL, they followed the directions of the High Court. Otherwise, the Government doesn’t ‘act’. This is the fifth time that the position of the Chief Information Commission has become vacant, leaving the Commission headless after 2014. Not one Chief Information Commission has been appointed after August 22, 2014, when the position became vacant. The RTI Act specifically provided that every time the Chief and other CICs should be selected involving the PM, a Cabinet Minister, the Opposition leader, and the President. The Chief retired, and then the convention of appointing the ‘senior-most’ was restored. But when the vacancies fell, there was confusion among others. There was no position for ‘acting Chief Information Commissioner’. For the vacant position of Information Commissioner, the government issued an advertisement in December 2022, and the DoPT received 256 applications. The tenure of all the sitting information commissioners – Suresh Chandra, Uday Mahurkar, Heeralal Samariya, and Saroj Punhani – will end in November, media reported. On September 3, 2023 – when the tenure of incumbent Chief Information Commissioner Y K Sinha ended, the newspapers hit headlines saying that the Central Information Commission would be headless, and this was the fifth time since August 2014. As a result, the officers need to run several administrative and financial positions in the Commission. The government has received 76 applications for the post of Chief IC in CIC – including three sitting information commissioners (ICs) and one former IC. The RTI Act is used to inform that there are vacancies.
A very active people’s organization Satark Nagrik Sangathan has recently, on October 11, 2023, released key findings of the “Report Card on the Performance of Information Commissions in India, 2022-23”. Jharkhand, Telangana, Mizoram, and Tripura – are completely defunct as no new commissioners have been appointed upon the incumbent’s demitting office. 4 out of 29 Information Commissions are defunct & 6 commissions are functioning without a Chief. More than 3 lakh cases are pending in information commissions across India. 10 commissions have an estimated waiting time of one year or more to dispose of a matter. October 12, 2023 marks 18 years of implementation of the RTI Act in India. And: 6 commissions are currently headless- the Central Information Commission and SICs of Manipur, Chhattisgarh, Maharashtra, Bihar, and Punjab.
Generally, Satark Nagrik Sangathan examines the performance of all 29 commissions in India in terms of the number of commissioners in each commission, the number of appeals and complaints registered and disposed of by them, the number of pending cases, estimated waiting time for the disposal of an appeal/complaint filed in each commission, frequency of violations penalized by commissions and transparency in their working.
It says: The law has empowered millions of people to seek information and hold the government accountable. Under the RTI law, information commissions are the final appellate authority and are mandated to safeguard and facilitate people’s fundamental right to information. Information commissions (ICs) have been set up at the central level (Central Information Commission- CIC) and in the states (state information commissions- SICs).
Similarly, heavy pending was recorded. 3,21,537 appeals and complaints were pending on June 30, 2023, in the 27 information commissions, from which data was obtained. The backlog of appeals/complaints has been steadily increasing in commissions. The 2019 assessment found that as of March 31, 2019, a total of 2,18,347 appeals/complaints were pending in the 26 information commissions from which data was obtained which climbed to 2,86,325 as of June 30, 2021, and then crossed 3 lakhs as of June 30, 2022.
As per the data of Transparency International, 2.5 crore RTI applications were filed within a single decade (2006-2016) and somewhere in the range of 40 and 60 lakh RTI applications are filed each year.
Plight of first and second appeals
The Government machinery is not interested in providing the information. The authorities at the first level will delay and send them to the next appellate ‘second appeal’, which is within the higher officers in public authority itself. Routinely, the second appeal officer repeats the denial from the public information officer. It will force the appellant to go to information commissioners in the State or Central Official Commissioners, as the case may be if they are taken to the next level beyond the state authorities and land in High Courts in their respective states. One does not know when a common man gets their turn to come to the Information Commissioner, which depends upon chance. And naturally, it takes a longer time.
A major problem with every state government is that none is ready to initiate action to appoint Information Commissioners. The public authorities do not care to fill the vacancies and even second appeal state-level officers.
Invariably, an activist should file a PIL and wait for some months. When the High Court finds the bench available, the Government would go to fill the vacancies. Why doesn’t the state or centre not fill the vacancy before vacancy arises?
Debilitate the Institution by starving the quantity and quality
Institutions like CIC and State Information Commissioner Offices are starving without sufficient officers in quantity and quality. The Judiciary is also facing the same predicament. Why does the Government allow such an important institution to this kind of negligence, uncertainty, and artificial crises?
Neither Centre nor several states, as if none, found a person of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media, or administration and governance, as required by the RTI Act left the posts vacant for a long time.
Terms and Conditions of Service of Chief State Information Commissioner / State Information Commissioners in the State Information Commission RTI Rules, 2019, as revised from time to time, show that the Centre will control every state as if no federal governance exists.
Another instance is the entire Telangana RTI office at the headquarters is ‘vacant and at standstill’. In July 2023, luckily, the Government acted, and at least a notification was issued. It is proposed to appoint the Chief State Information Commissioner and State Information Commissioners in the Telangana State Information Commission.
Dedicated Outline portal in Telangana- A Leap in the dissemination of information
One great leap forward is that Telangana has launched an outline portal dedicated to receiving applications from the Right to Information Act.
Though delayed by 18 years, it is a welcome step. It can enhance transparency and accountability in administration, as underscored by Section 6(1) of the RTI Act, 2005, and Telangana Right to Information Rules, 2005. The problem is that the Government’s Public Authorities are not readily available to common citizens. There is a continuous delay in giving information in public works, shortfalls, and leaks in welfare schemes, which make the people understand and question the recklessness of the government’s decision-making process.
Since June 21, 2023, an affidavit furnished by the Chief Secretary stated that the files about the appointments of a CIC and ICs are under ‘active consideration’ of the highest competent authority. No one knows how this ‘active consideration’ translates into reality. Unless some RTI activists knock on the doors of the Telangana High Court and ask the state government to furnish details on the steps it has taken to appoint a chief information commissioner and information commissioners to the Telangana State Information Commission. Under the RTI Act 2005, it is mandatory to appoint not less than 11 information commissioners in the state as well as in the Central Government. At every state or center, the Government does not care to appoint a new Commissioner to the vacant post. Every time, or most of the time, around 80-year-old M Padmanabha Reddy of the House for Good Governance, an NGO questioned this delay. Unless the High Court questions what happened to those appointments, the Government will not move. The Government generally waits for a PIL to question the delay. Perhaps many a time, the Good Governance must have filed PILs. Naturally, it involves expenses. Enthusiastic Padmanabha Reddy should investigate to know the numbers and period of delay in appointment. The term of the chief information commissioner ended on April 21, 2022, and one of the information commissioner’s terms, the latest, ended on February 23 this year since the posts are vacant and the pendency of cases is increasing. It is disgusting and discouraging. The situation is the same with the State and the Centre, except in a few cases. At one point of time in the affidavit, the then Chief Justice Ujjal Bhuyan observed that “the affidavit is vague.” The High Court many a time expressed its “surprise” that the affidavit failed to mention when the proposal was submitted, to whom, and its current status. The court also expressed its dissatisfaction over the lack of hearings in the Information Commission on the grievances before it under the RTI Act.
Information delayed, Information denied
The government counsel informed the court that the Information Commission staff regularly attended to litigants’ grievances. But the hearings are regularly postponed, ‘thareek pe thareek’. However, the Chief Justice sought to know from the government counsel who would pass orders on appeals filed by a litigant in the absence of a CIC and ICs. They know that information delayed is information denied. What can the judges do? Though they are interested in filling the vacations, without the bureaucracy’s initiative nothing works.
Lethargy, delays, and procrastination are wreaking havoc with the RTI Act
The lethargy is sunk deeply into the machinery to inordinately delay, unduly procrastinate, and indolently wait for an order from the concerned ministers. One former judge of the High Court holding an official authority asked me. “What happens if I do not answer the request for information from the Government, though it is available”. Several Former Central Information Commissioner such as Shailesh Gandhi including this writer (Sridhar Acharyulu) were shocked to know the response. ‘Why should I give information that could be given under the RTI Act? It can wait until the High Court or Supreme Court has resolved the issue, he replied. The appeals will take decades when the applicant gets frustrated and fails. It is how the mechanism has been ingrained in lethargy from top to small public authorities, bent upon to fail the RTI. The RTI seekers and public authorities are starving from the drought of information. This is one of the great legislations, which is an inextricable part of the fundamental rights enshrined in the Constitution of India, to make people in power accountable. Regrettably, the powers are determined to fail the concept that ‘information is power.’
Let the Right to Information survive!