Threat from within

ON December 6, Vigyan Bhawan, a government-run convention centre in the heart of Lutyens’ Delhi, was filled with hundreds of people from across the country— those implementing the Right to Information (RTI) system and those using it. They were there to attend the 12th Annual RTI Convention, a government-sponsored stocktaking exercise on the implementation of the landmark transparency law.

The chief guest and guest of honour were Vice President M. Venkaiah Naidu and Minister of State (MoS) in the Prime Minister’s Office Jitendra Singh. Like every year, their speeches received close attention from those assembled as their pronouncements signify the government’s intent, focus and future commitment towards the implementation of the RTI system.

In his half-hour-long speech, Venkaiah Naidu spoke about the need for transparency and accountability in the conduct of the government as envisaged in the RTI Act. He said: “Information can be empowering if it is authentic and that’s why I coined a phrase, ‘Information with confirmation is more than ammunition’.” Significantly, he suggested that information must be given to the applicant in his “mother tongue” or “at least in the scheduled languages”. This was well received.

Jitendra Singh’s pronouncements, however, had the opposite effect, provoking a bit of a controversy. In his relatively brief address, he spoke about appointment of Information Commissioners (ICs) in the Central Information Commission (CIC), the top adjudicating authority for the RTI Act, and suggested possible changes to the rules for filing RTI applications with a stated intent of cutting down on the backlog and the number of applications that are filed every year. He claimed that “for the first time” the government had filled all vacancies of ICs.

With regard to the number of RTI applications, the Minister said: “But to reduce pendency, we could also device a mechanism and that is my one humble submission. …most of our information is already available in public domain. And then why file an RTI? You file an RTI [for information] which is already there on the website. We could at least have mercy on commission members….

“Secondly, we could at least reduce those RTIs for which the answer has already been furnished. But we have developed the habit of specialising in a particular subject. So if I know medicine well and I have also retired from the health department, then I know, I am an insider; I know where to file RTI, and I keep doing it every three months. I remember one of the predecessors of Shri R.K. Mathur [Chief Information Commissioner, CIC]…. He said there was a huge liability: 36,000 RTI applications are pending. I told him, ‘You are mistaken, the correct figure is 36,003.’ So he looked quite amused. You know what I wanted to tell him was that just in the two intervening days since he had been appointed, there were three RTIs filed about his appointment. Now if you file RTI applications about Information Commissioners also, who will deliver?... So if we just try to be little more discreet, try to respect the spirit with which this law has been brought in, instead of making it a nuisance… maybe we could have a mechanism wherein an RTI be filed on the condition that the person who is filing it has something to do with that kind of subject or issue. Not that I file an RTI on somebody not known also, just read in the newspaper and then I invite the accusation of being a professional RTI activist, which is a term I would not like to assign to anybody….”

This provoked strong criticism from the National Campaign for Peoples’ Right to Information (NCPRI), an outfit that has been the moving force behind the movement for transparency and the RTI Act.

NCPRI statement

In a statement, it said: “The NCPRI strongly disagrees with the suggestion of the MoS. The right to information is a fundamental right and Section 6(2) (of the RTI Act, 2005) specifically states that a person seeking information is not required to give any reasons for seeking information. Any move to introduce conditions to restrict RTI applications to only those issues on which a person is directly connected will not just be illegal but will also empower PIOs [Public Information Officers] to arbitrarily reject any RTI application on the pretext that it does not relate to the information seeker. Further it is surprising that the Minister made these statements in the context of people seeking information on the process of appointment of information commissioners. In recent months, the Supreme Court has set aside appointments of information commissioners in AP [Andhra Pradesh] and Kerala as due process was not followed in appointments.”

On the Minister’s claim that all vacancies of ICs had been filled “for the first time”, the NCPRI stated: “The Minister recounted that the BJP government had filled all the vacancies in the CIC and the CIC functioned at full capacity of 11 commissioners. However, currently there are 3 vacancies in the CIC with the first one occurring in December 2016. These vacancies have arisen out of routine retirement of information commissioners. Despite the passage of more than 11 months, the government has not made any appointments of the information commissioners. In fact, a representation sent to the Prime Minister on the issue was converted to a grievance and registered on the grievance portal, which was subsequently shown as ‘disposed’. We are disappointed to note that the Minister did not make any reference to the current vacancies and did not state in how much time the vacancies will be filled. It is pertinent to mention that a fourth vacancy will come up in January 2018 when another sitting commissioner is set to retire. The NCPRI urges the government to immediately appoint the information commissioners to fill the 3 vacancies in a transparent manner.”

Independent RTI activists, known for their role in exposing corruption in high office or by prominent personalities, were also upset with the Minister’s pronouncements. The Delhi resident Subhash Chandra Agrawal, for instance, is well known for filing RTIs on issues of national relevance. In the recent past, he has filed RTIs about the Subhas Chandra Bose files and the Board for Control of Cricket in India. The Minister’s criticism of “professional RTI activists” appeared to be directed towards activists like Agrawal. Interestingly, though, Agrawal has been also campaigning for prevention of misuse of the RTI act.

Speaking to Frontline , he said: “My suggestions for preventing misuse of the RTI Act are completely different from the Minister’s. His argument about filing RTI applications only for self-interest... [if this had been the case] perhaps the earlier government [would] not [have been] unseated [since the] RTI Act [was] instrumental in exposing so many scams like CWG [Commonwealth Games], 2-G, coal block.”

Agrawal said: “Practical corrective measures like making identity proof compulsory with every RTI application, as also directed by Punjab and Haryana High Court in its verdict dated 02.11.2012 in the matter Fruit & Merchant Union vs Unknown [CWP No. 4787 of 2011], and having a uniform RTI fees of Rs.50 inclusive of copying charges for first 20 copied pages can be instrumental [in preventing misuse of the Act].”

While complaints about the misuse of the RTI are raised, often by sections of the bureaucracy and the political class, evidence on the extent of misuse is rarely presented. In fact, in his presentation at the convention, Suresh Chaudhary, Chief Information Commissioner of Rajasthan, revealed that an analysis of 44,376 RTI applications filed by 13,838 appellants from January 2010 to August 2016 found that less than 10 per cent of the appellants were of the “persistent” or “dedicated” type. Chaudhary hesitated to call all of these appeals cases of misuse. He seemed to suggest that the section misusing the RTI process was less than 10 per cent. Clearly, there is an element of exaggeration in concerns about misuse of the RTI Act.

Draft rules & vacancies

Jitendra Singh’s suggestions and claims received adverse reactions primarily because of the context in which they were made. The Department of Personnel & Training (DoPT), of which Jitendra Singh is a junior Minister, handles all policy and administrative matters regarding the RTI Act for the Union government and is currently in the process of revising the rules that govern the Act. The DoPT floated its proposed draft rules for the RTI for public consultation in March. These quickly became controversial, with one prominent non-profit organisation referring to one of the draft rules as a “death sentence” for RTI users. A serving Central Information Commissioner, M. Sridhar Acharyulu, officially opposed several draft rules in a written submission (see Frontline , “Draft rules and dissent”, October 13, 2017, and “Diluting a right”, May 12, 2017).

If the draft rules are one cause for worry among civil society groups, another is the persistence of vacancies in the CIC. Pending vacancies are partly the reason for the large backlog of RTI cases at the Central level.

In 2015, activists filed a public interest litigation petition in the Delhi High Court to get the government to fill the vacancies in the CIC. The CIC had four vacancies then, including the one for the post of the commission’s chief. The court observed in March 2015: “We have heard the learned counsel for both the parties. Having regard to the undisputed fact that the non-appointment of the Chief Information Commissioner has virtually frustrated the very purpose of the Right to Information Act, 2005, we are of the view that it is necessary for this court to monitor the steps that are being taken for filling up the vacancies in question so as to ensure that all the vacancies are filled up within a time frame.” The court disposed of the matter in November 2015, and the following month the government appointed former Defence Secretary Mathur as Chief Information Commissioner.

While Mathur has half of his term still left, the problem of pending vacancies has arisen once again, affecting the CIC’s capacity to clear the backlog of claims, which, according to Mathur’s speech at the convention, was around 26,000 applications up to March.

Perhaps, the Minister would do well to heed the Vice President’s appeal at the convention while speaking on the backlog: “An early disposal by the Information Commissions will help citizens get their grievances redressed quickly. I would encourage all the commissions to make a concerted, sincere effort towards speeding up disposal of cases registered with them. They must ensure timely and correct information for the citizens.” To pay heed to this appeal, the government will have to fill the vacancies in the CIC.