Growing number of vacant positions at Information Commissions threaten RTI Act

The transparency law faces an existential crisis due to a shortage of commissioners, regressive amendments, and a lack of political support.

Activists shout slogans during a protest against amendments to the Right to Information Act in the Lok Sabha in New Delhi in 2019. | Photo Credit: Money Sharma/AFP

On October 30, the Supreme Court took serious note of vacancies in the Central Information Commission (CIC) and in at least nine State Information Commissions (SICs), saying that the Right to Information (RTI) Act of 2005 would become a “dead letter” if the government did not fill the posts. A bench of Chief Justice D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra said that despite a 2019 judgment of the court, the vacancies were yet to be filled. “The current crisis raises questions over the fate of more than 3.15 lakh cases pending before the commissions across the country,” said Anjali Bhardwaj, activist and petitioner in the case that has been before the Supreme Court since 2021. It first came to the apex court in April 2018.

The court’s observation came at a time when the CIC was functioning with four commissioners, whose tenures were set to end on November 6. According to the RTI Act, the CIC shall consist of the Chief Information Commissioner and such number of Central Information Commissioners not exceeding 10 as may be deemed necessary. The same holds true for SICs. Bhardwaj said that following the Supreme Court’s directions, the Centre elevated one of the existing Information Commissioners [Heeralal Samariya] to the post of the Chief Information Commissioner and appointed two new commissioners—Anandi Ramalingam and Vinod Kumar Tiwari—on November 6.

“At present, three people, one chief and two commissioners, are running the CIC,” said Bhardwaj, a co-convener of the National Campaign for People’s Right to Information and a founding member of Satark Nagrik Sangathan, organisations working to promote transparency and accountability in governance. The Narendra Modi government, Bhardwaj said, had appointed information commissioners only after courts intervened. This was never the case before, she added.

What are Information Commissions?

The Information Commission, in the States and at the Centre, is the body to which citizens appeal when they have been denied information under the RTI Act. As per provisions in the RTI Act, the citizens’ first appeal is heard by an official designated as the First Appellate Authority by the public authority/government department concerned. The recourse that citizens have for a second appeal is to go to the Information Commission. The commission has the powers of a civil court in terms of holding inquiries, summoning documents, and imposing penalties on erring officials, besides providing compensation to complainants who have suffered due to denial of information.

“It’s vital for Information Commissions to function properly, something the Supreme Court observed in its February 2019 judgment. The top court has again held that the number of commissioners should be decided depending on the workload,” said Bhardwaj. The crisis plaguing Information Commissions has caused suffering to poor and vulnerable citizens because of the denial of basic information on subsidised rations, healthcare, and government welfare schemes.

Several RTI crusaders that Frontline spoke to believe that the RTI law is no longer a Central government priority. They say the 18-year-old law, which ideally should have come of age, has regressed and is struggling to find its feet. Several back-door legislative tweaks and amendments have undermined the autonomy of the commissions and weakened the Act’s implementation. They also point to the lack of publicity for the law and the absence of advertising on state-run TV channels as another indication of neglect.

Police detain a Delhi Pradesh Youth Congress worker during a protest against the 2019 amendment to the RTI Act in New Delhi. | Photo Credit: Sandeep Saxena

The prominent RTI crusader Aruna Roy said: “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.”

Prime Minister Narendra Modi, however, sang a different tune in his address to the 10th annual convention of the CIC in 2015. He noted that the RTI Act had enabled the common man to question those in power and claimed that his government’s “Digital India” initiative, which brought transparency and built trust, was complementary to the RTI.

In 2018, the Department of Personnel and Training, which is the nodal department for the RTI and the CIC, brought nearly 2,000 public authorities under the RTI Act. In keeping with its slogan of “maximum governance with minimum government, maximum transparency and maximum citizen participation”, the Modi government introduced a portal and an app. In fact, Home Minister Amit Shah, speaking at the 14th CIC convention in New Delhi, said the government was committed to creating a transparent system that would obviate the need to file RTI applications.

Praise for new Chief Information Commissioner

Jitendra Singh, Minister of State (Independent Charge) Science & Technology, lauded Heeralal Samariya after the Chief Information Commissioner called on him on November 19. He praised Samariya for achieving a decline in pendency with a corresponding increase in disposal of RTI appeals. Samariya told Singh that the disposal rate of RTI appeals/complaints had, for the first time, crossed 90 per cent this year because his office had introduced the physical-cum-videoconferencing method for hearing and disposing of RTI appeals. Data from April 1 to November 9, 2023, available with the CIC show that 11,499 of the 12,695 RTI appeals/complaints received had been disposed of in fiscal 2023-24.

RTI crusaders are not convinced. Bhardwaj said: “For 2022, the data on the CIC website show 38 per cent of the appeals/complaints received were returned by the commission [this excludes appeals/complaints which were time barred/duplicates or pertained to SICs].” It turns out that nearly 85 per cent of the returned cases are not resubmitted to the CIC as the majority of RTI users do not have the financial resources or time to pursue the matter. “The number of cases being returned by the CIC was almost negligible before 2015, whereas it has increased exponentially after 2017. And this is done on excuses like lack of indexation and pagination,” said Bhardwaj. As many as 11,906 of the 19,390 appeals/complaints registered were returned due to such issues by the CIC in 2022, she added. A government press note issued on November 19 claimed that the CIC had become the first government body to use artificial intelligence for the study, analysis, and recognition of patterns in RTIs and to verify credentials of RTI applicants. “This is a clear violation of the law as the RTI applicant does not have to prove his credentials to exercise his basic fundamental right,” said Bhardwaj.

Highlights

• The Supreme Court recently expressed concern about the vacancies in the Central Information Commission (CIC) and in at least nine State Information Commissions (SICs), saying that the Right to Information (RTI) Act of 2005 would become a “dead letter” if the government did not fill the posts.
• The court’s observation came at a time when the CIC was functioning with four commissioners, whose tenures were set to end on November 6. According to the RTI Act, the CIC shall consist of the Chief Information Commissioner and such number of Central Information Commissioners not exceeding 10 as may be deemed necessary.
• The crisis plaguing Information Commissions has caused suffering to poor and vulnerable citizens because of the denial of basic information on subsidised rations, healthcare, and government welfare schemes..

A disturbing report

According to a report brought out by Satark Nagrik Sangathan in the first week of October on the performance of Information Commissions in India, of the 29 Information Commissions in the country, five—Manipur, Chhattisgarh, Maharashtra, Bihar, and Punjab—are functioning without a Chief Information Commissioner. In four commissions—Jharkhand, Tripura, Telangana, and Mizoram—all Information Commissioner posts, including the chief, are vacant.

The study found that more than three lakh cases were pending in Information Commissions across the country, and in at least 10 States—West Bengal, Chhattisgarh, Maharashtra, Arunachal Pradesh, Odisha, Madhya Pradesh, Karnataka, Telangana, Kerala, and Himachal Pradesh—the estimated waiting time was one year or more to dispose of a query. It found that the West Bengal SIC, at the current monthly disposal rate, would take 24 years and one month to dispose of a query.

According to former Chief Information Commissioner Wajahat Habibullah, the application of the RTI Act is no longer as comprehensive and extensive as it is expected to be. Despite criticism of some of the Information Commission judgments, he said: “The law continued to expand. But keeping the positions vacant is somewhat disturbing.” On the growing pendency of cases, he added: “Under the Act, all the information is supposed to be uploaded on the websites, and only a minimal amount of information is required to actually be accessed by an application. Unfortunately, that does not happen to the extent it is intended to.”

Besides the commission vacancies, the RTI regime has also been weakened by two amendments, in 2019 and 2023. Bhardwaj said: “What we are seeing right now is a very frontal attack on the law. The two regressive amendments have seriously undermined the autonomy of Information Commissions. The 2019 amendment empowers the Central government to decide the tenure, salary, terms of service, and post-retirement benefits of all commissioners in the Central and State Information Commissions. This is a violation of the federal structure in many ways.”

In July 2019, Congress parliamentary party chairperson Sonia Gandhi slammed the Centre over its 2019 RTI amendment. “It is the matter of utmost concern that the Central government is hell-bent on completely subverting the historic RTI Act, 2005, which was prepared after wide consultations and passed unanimously by Parliament,” she said in a press statement.

Personal information exempt from disclosure

The 2023 amendment was brought through the Digital Personal Data Protection Act. It amended Section 8(1)(j) of the RTI Act, essentially exempting all personal information from disclosure. According to Bhardwaj and Roy, this amendment will sound the death knell for many provisions in the Act. Incidentally, Manmohan Singh as Prime Minister in 2012 had called for maintaining a “fine balance” between the RTI and the right to privacy.

Since its inception in 2005, the RTI regime has received mixed signals from the judiciary. In many cases, courts’ interventions in decisions of Information Commissions against public authorities resulted in denial of information to citizens. One of the judgments cited is of the Supreme Court in Girish Ramchandra Deshpande vs Central Information Commissioner & Ors, 2012. It rejected applications seeking information on expenditure of government funds allocated to elected representatives as well as information on educational degrees and caste certificates of government functionaries and political leaders on the grounds that they fell foul of Section 8(1)(j) of the RTI Act.

Social activists rally in Bhopal demanding the arrest of the killers of RTI activist Shehla Masood in 2011. | Photo Credit: A.M. Faruqui

There are also complaints about the lack of a proactive approach from Information Commissioners. In September 2021, at least 15 sitting and retired Information Commissioners wrote to the then Chief Justice of India, N.V. Ramana, requesting that directions be given to courts across the country to not entertain pleas against orders passed by the CIC or SICs. Section 23 of the RTI Act indicates that the right of final appeal lies with the Information Commissions and not with courts. The letter said: “Many High Courts stay orders of Information Commissioners where no reasons are given either in the petition or in the orders describing how the challenge would fall under the writ jurisdiction of the Court. These cover orders ordering disclosure of information as well as imposition of penalty.”

On the contrary, of late, some complainants have moved the Punjab and Haryana High Court against what they term as “cryptic orders” passed by appellate authorities, including SICs. During the pandemic, a period of unprecedented socio-economic crisis, the RTI regime failed in its basic role, according to several RTI activists. In fact, Shailesh Gandhi, a former Chief Information Commissioner, had filed a petition before the Bombay High Court seeking directions to make the RTI apparatus in the State functional through videoconferencing.

“2019 amendment is against principle of transparency”

Wajahat Habibullah said the RTI Act’s future depended on how much independence the commissions could exercise, how the RTI Act was interpreted, and how its purview was expanded. “Information Commissioners are expected to be bold to take initiative on this,” Habibullah said. Referring to the 2019 amendment to the RTI Act, he said: “It brought the Information Commissions more closely under the control of the [Central] government, which is against the principle of transparency and accountability.”

Referring to Modi’s address at the 2016 CIC annual convention, he recalled the Prime Minister saying: “We will look upon the Information Commission to actually make clear to us as to how our government is functioning.” However, Habibullah added: “That has not happened. The government is not treating the RTI Act as its own instrument for bringing to its notice its own shortcomings in performance, which is what it was intended to do. But then, it didn’t work like that under the UPA government either.”

Maintaining that the RTI was the result of a people’s movement, Bhardwaj said: “The law has been used powerfully and vibrantly by people across the country, despite lots of threats to them, despite attacks on information seekers. This is the only way the RTI Act is going to survive with people protecting it and even going to the court wherever required. Otherwise, it’s quite clear that there is no political will.”