‘Information Commissions should be in the ICU’: Aruna Roy

The social activist says that those in power continue to find ways to refuse and thwart RTI requests.

Social activist Aruna Roy addresses a gathering at the RTI monument in Beawar district on October 12 to mark the 18th anniversary of the Right to Information Act. | Photo Credit: PTI

Noted social activist Aruna Roy has been a driving force behind the movement that led to the enactment of the Right to Information (RTI) Act, 2005. A former civil servant and a co-founder of the Mazdoor Kisan Shakti Sangathan, Roy heads the National Campaign for People’s Right to Information. In an interview with Frontline, she discussed the current Information Commission crisis. Excerpts:

What were your expectations when campaigning for the RTI Act before it was enacted in 2005? And to what extent were those expectations fulfilled?

Accessing information is equal to accessing power. The fact that the law was passed was in itself a major achievement. Many people at that time did not believe that the government would in fact pass this law, as one supporter at a protest in Beawar once said, “Do you expect a rotten and corrupt system to expose itself to you willingly?” But the unexpected happened and the law was passed in 2005, with near unanimous support in Parliament. There were 154 amendments brought about after recommendations were made in the Parliamentary Standing Committee—many at the behest of the campaign.

But the law was not at all a final victory in this perpetual battle for the people’s right to information. It has, in fact, been a tussle for information ever since. Those in power still want opaqueness and impunity and, therefore, find many ways of refusing and thwarting information requests.

The most encouraging aspect of this movement has been the tenacity and commitment of the Indian people. Sixty to 80 lakh RTI applications are filed every year despite frustration and stonewalling by authorities, and delays in the Commissions. There is now a need for this continuing citizens’ assertion to expand transparency and take it into the realm of democratic accountability. That innate democratic aspiration of the people which has driven a movement that has birthed and used a law, but is more than the law, should be the driving force.

How do you view the current state of the Central Information Commission (CIC) and several State Commissions set up under the RTI Act?

The Information Commissions are in a crisis. The health of the Central and many of the State Information Commissions is so poor that one would say the Commissions should be in the ICU. As the Supreme Court [Chief Justice of India] has said in a recent judgment of Anjali Bharadwaj & Ors vs Union of India & Ors: “the failure of the State governments to fill up the vacancies in the posts of Information Commissioners defeats the very basis of the Right to Information Act, 2005. Effectively, the State governments by failing to fill up the vacancies are ensuring that the right to information, which is recognised under an Act of Parliament, becomes a dead letter.” The Commissions were created to ensure smooth and effective implementation of the RTI Act. They were made the highest independent body related to transparency and access to information, and by design were to ensure that the government and society in India moved from a colonial and feudal culture of secrecy to a culture of open government and openness.

Power and independence equivalent to the Election Commissioners were vested in them to ensure smooth implementation of the law so that citizens could easily access information without interference from the officers who held the information. Information Commissions were empowered by the statute to adjudicate on every matter of the people’s right to know, even giving the Commissioners powers of a civil court, to call for documents and summon and penalise defaulters. In fact, penalties are even mandated in cases of delay so that the law functions effectively.

The Commissions were, therefore, set up to make sure that any obstructive bureaucratic behaviour of Public Information Officers in the departments could be deterred. On matters of seeking information, no office was above them and, therefore, the Commission was expected to ensure that people’s interests were protected in the larger interests of transparency and accountability, and to protect basic constitutional rights.

But the executive seems to have worked out a deliberate plan to undermine both the independence and effectiveness of the Commissions. The most damaging strategy seems to have been to simply not appoint Commissioners and Chief Information Commissioners. This has reference to a recent study of the Information Commissioners carried out by Satark Nagrik Sangathan [a citizens’ group promoting transparency and accountability in government], which has shown that by not appointing Commissioners and thereby ensuring that pendencies pile up, the executive has abrogated its responsibilities.

The CIC has also been deliberately and severely undermined, through non-appointments of Commissioners. After the Supreme Court order, the Central government has appointed a Chief Information Commissioner, but as the Leader of the Opposition said in a letter, he was not consulted, thereby undermining the bipartisan selection process as mandated in the law. Even today, eight out of 10 positions for Commissioners at the CIC are vacant, with more than 3.2 lakh (as cited in the Satark Nagrik Sangathan report) pending cases.

How does this delay in the appointment of the Chief Information Commissioner and State Information Commissioners affect transparency as well as accountability?

The Information Commissions are designed to be an apex independent body that will ensure the wheels of the law function as required. The Chief Information Commissioner as an independent statutory authority at the head of the structure should be responsible for ensuring the disposal of cases in his/her Commission and ensure that each Commissioner carries out disposal of enough cases every month so as to ensure there is no backlog and delay. Ideally, there should be a review and a report of the performance of each Commissioner on the website. If there is a need for more Commissioners to be appointed, the government should in fact ensure that the appointment process is carried out in a timely manner. But it is clear that at a Central level, and in some States, the government is doing the opposite. The number of Commissioners appointed has been extremely deficient. In many cases, there are periods when there has been no Chief Information Commissioner at all, making the work of the entire Commission redundant.

A delay in the appointment of the Chief Information Commissioner leaves a structural vacuum where the Commission cannot carry out its primary role of disposition of appeals. Since the primary role is to make sure that the information sought is accessed within a time frame, the lack of a Chief Information Commissioner puts the entire Commission in sleep mode. It, therefore, follows that hearing of appeals and complaints are stalled, and in many ways, the entire deterrent and supervisory role of the Commissions is neutralised. Information, particularly sensitive information, would not be available easily to the citizen.

The law allows for a Chief Information Commissioner and up to 10 Information Commissioners so that backlogs can be prevented. However, even where there is a Chief Information Commissioner, often the number of Commissioners is so few that cases keep piling up. One of the slogans of the RTI movement quoted by the Chief Justice of India in Jaipur on October 14 was: “The right to know is the right to live.” If “justice delayed is justice denied”, then information delayed (in time) can be the denial of life itself.

What are your major concerns about amendments made in the RTI Act under the Modi government?

Ever since the RTI Act was passed by Parliament in 2005, the executive has sought to weaken and dilute it through amendments. However, these did not succeed because of public pressure and public opinion in favour of a strong law.

The BJP government brought in two sets of amendments that significantly and strategically weakened the law. In the first one in 2018, the BJP government decided to ride roughshod over any public sentiment, and steamrolled amendments through Parliament without even referring them to the Parliamentary Standing Committee. This amendment weakened the power of the Commissioners and brought them under the control of the executive in different ways, thereby impacting the independence of the Commission.

The Commissions are set up to arbitrate between the citizen and the state, as an independent body mandated by a law, in this case the RTI Act. If the independence of the Commission is jeopardised, it becomes partisan. In this case, the Information Commission has become almost like a government department where the secretary is subservient to the political executive. The amendments also reduce the status of the Commission and bring terms and conditions, giving more power to the bureaucracy to control the Commissions and Commissioners administratively.

For a variety of reasons, the Information Commissions have, since the amendment to the Act, become weak institutions, performing none of the functions they were created to address. Consequently, through a combination of both legally weakening the Commissioners, and not appointing enough of them or the Central Information Commissioners, the government has ensured the apex body of the RTI Act is rendered largely ineffective.

But the even more deadly blow has come through the amendment brought in the RTI law through the Digital Personal Data Protection Act earlier this year. By amending the qualifications on the privacy exemption, the government has succeeded in shielding any corrupt or arbitrary public official and their deeds by giving them the protection of “personal information”. This almost sounds a death knell on the provisions of many parts of the law.

Do you feel that the law is falling into redundancy due to lack of political will?

The RTI law brought about a paradigm shift in democratic governance. But this has been primarily because of the efforts of the users of the RTI—the citizens of India. They have used the RTI law to demand their share of democratic power, question public officials, and strengthen modes of participatory democracy.

While the UPA government displayed courage in passing the law, and the NDA has shown its hostility to the law, it is eventually the people who have shown their will, and used the law to strengthen their movement. Therefore, in spite of many setbacks, including debilitating amendments in the garb of data protection, this law continues to be used to chart a path that draws inspiration from its spirit. The spirit of the people’s right to information will never let the law become redundant or irrelevant.