The Wire: New Delhi: Saturday,
April 22, 2017.
RTI activists
demand penalties against public information officers, insist RTI Act being
killed by ‘misrepresentation’.
A recent
report, ‘Tilting the Balance of Power: Adjudicating the RTI Act,’ on the most
critical challenges in the implementation of the Right to Information Act, 11
years after its enactment, has established that more than 60% of the orders
contained deficiencies in that they had not recorded critical facts.
The report,
brought out by by Satark Nagrik Sangathan (SNS) and Research, Assessment and
Analysis Group (RaaG) and authored by Anjali Bhardwaj, Shekhar Singh and Amrita
Johri, analysed 2000 orders of four information commissions (ICs) across the
country, including the Central Information Commission (CIC), cited various
orders of the Supreme Court that caution against the tendency to give cryptic,
unreasoned orders. In Manohar s/o Manikrao Anchule Vs State of Maharashtra, the
court categorically, and in great detail, laid down that judicial,
quasi-judicial, and even administrative orders must contain detailed reasoning
for their decisions.
Decisions
in just two-three lines
Despite clear
judicial pronouncements, the study found that in a large number of cases,
decisions of the commissions, including those of the CIC, were provided in just
two or three lines without giving any grounds or basis for the decision.
In this
regard, it pointed out that the Rajasthan and Bihar state ICs were found to be
the worst performers, with 74% and 73% of the orders respectively not even
describing the information that was sought. Most of these orders made no
reference to the background or the essential relevant facts of the case like
dates, details of information sought, previous decision of the public
information officer (PIO) or the first appellate authority (FAA).
According to Bhardwaj of SNS, the phenomenon
of not passing speaking orders is problematic for several reasons: “First,
information seekers, the concerned public authorities, and the public at large,
have no way of finding out the rationale for the decisions of ICs. This leaves
people in the dark and prevents effective public scrutiny and accountability of
the ICs. Most importantly, orders of ICs are often challenged before courts.
The tests of legality, fairness and reasonableness become exponentially more
difficult to pass when the orders don’t speak for themselves and lack essential
information, facts and reasoning.”
Bhardwaj said
the issue becomes especially problematic as ICs are often not made a party in
legal challenges to their orders before the court and therefore they have no
opportunity to present any material in defence of their directions, which is
not contained in the original order. “Deficiencies in IC orders therefore
burden the information seekers with the task of defending orders of the ICs
before courts. Vague use of language, insufficient or incorrect recording of
facts and not recording basis of orders, weigh in in favour of the petitioner
assailing the order of the commission.”
Orders of ICs
often seem to violate the legal dictum that in appeals and complaints, the onus
of proof is on the PIO and the denier of information. Perhaps the most
controversial illegality found in IC orders relates to the imposition of
penalties, wherein case after case penalties are waived or ignored despite
being legally mandatory.
Need to
initiate penalty proceedings
It is the
contention of the RaaG-SNS report that in all cases where a violation of the
RTI Act occurs, ICs must proceed with the procedure laid down in Section 20 of
the Act to initiate penalty proceedings against errant PIOs.
Across the
sample of ICs (excluding Rajasthan), the study found that an average of 59%
orders recorded one or more violations listed in Section 20 of the RTI Act,
based on which the IC should have triggered the process of penalty imposition.
However, in only 24% of these cases did the IC issue a notice to the PIO asking
him or her to show cause why penalty should not be levied. Finally penalty was
imposed in only 1.3% of the cases in which it was imposable.
An analysis
of 1469 orders undertaken for the purpose of the study showed that by foregoing
penalties in cases where they were impossible, even at a conservative estimate,
a loss of around Rs 285 crores was caused to the public exchequer, which could
in fact be construed to be an offence under the IPC and other laws.
Johri of SNS
added that “even more important than the revenue lost is the loss of deterrence
value that the threat of penalty was supposed to have provided. This destroys
the basic framework of incentives and disincentives built into the RTI law, and
promotes a culture of impunity.”
Singh said
there were numerous instances of non-imposition of penalties by the
commissioners where they ought to be imposed. “The analysis done in the earlier
RaaG report showed that, as an average, information was only provided to 45% of
the RTI applicants, and that the average time taken to provide information was
60 days, while the legally mandated maximum is 30 days. The laxity in imposing
penalties is also allowing PIOs to take liberties with the RTI Act, at the cost
of the public,” he said.
‘CIC was
setting a precedent with earlier detailed decisions’
Former chief
information commissioner Wajahat Habibullah believes while in its earlier days
the CIC was trying to set benchmarks that is no longer the case now and this is
probably what explains the concise nature of the orders.
“So far as
the quality of RTI decisions is concerned in the CIC, when I was there the
cases were relatively new and so it became compulsory for the Commission to in
fact deal with the cases and establish and state the law and the legal point
much more comprehensively. Due to this the decisions were much longer. They
were setting a precedent then. That is not so now. In an effort to speed up the
disposal of orders there has been a certain kind of deterioration. Therefore it
would be good for the commission to have a relook at their manner of disposal
and how they can keep the pace up without actually compromising on the quality
of decisions,” Habibullah said.
Citizenry,
media has a bigger role to play
On what could
be done about this situation, Habibullah said if the judiciary and the
bureaucracy, which runs the commission, do not act as they should, it is time
for the media and the citizenry to play a bigger role. “If the three arms are
moved by someone, and if there is a public campaign or a movement then why
would they continue to behave this way. Public debate and the media has a major
role to play. If you want RTI Act to be effective, then you should do something
about it.”
‘RTI Act
being killed by misrepresentation’
Former
central information commissioner Shailesh Gandhi, who had set a record in
clearing over 20,000 cases in a short span of time, said the RTI Act was being
killed by “misinterpretation”. He too advocated the need for citizens to create
a discussion around the RTI Act. “In fact, I have been suggesting to people
that there should be a colloquium held with judges, lawyers, information
commissioners and RTI users to arrive at what the law says.
A template
for orders?
The RaaG- SNS
report recommended a template for the IC orders and states that it would be
useful if the ICs adopt a uniform checklist of points they need to consider
before they finalise their orders and uniform formats for their orders. ICs
must ensure that, wherever applicable, reasons for every part of their order
must be contained in the order.
“In keeping
with the Supreme Court diktat that orders of judicial, quasi-judicial and
administrative orders must give detailed reasoning for their decisions, orders of
the ICs must be well reasoned and complete in all respects. This is critical to
ensure a robust transparency regime which empowers citizens to hold governments
accountable”, says Bhardwaj.
Gandhi also
expressed his exasperation with the vagueness of the orders. “If a petitioner
does not provide you the details, you will not even know what the case is
about.”
Questioning
why hyperlinks to the original petition and orders of PIO, FAA and others not
provided when the entire system is computerised, he said “it is primarily due
to laziness and ‘I don’t care’ attitude. When you put all this there, then your
accountability becomes even higher. Right now you put out a simple order and
most people would not know what the matter is about.”
Gandhi feared
that attempts are being made to discourage the appellants. “The PIOs have been
obstructing flow of information. So we will need to create a public opinion
about it. If we will not do anything, in another 10 years it will become like
the Consumer Act where the orders are there but there is negligible impact.”
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