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.”