‘There is a problem in demanding far too much freedom for our institutions. How do you establish their accountability?’

Indian Express: Delhi: Sunday, November 11, 2012.

In this Idea Exchange, Chief Information Commissioner Satyananda Mishra speaks about the scope of the RTI law and glitches in implementing it. This session was moderated by Editor (Investigations) Ritu Sarin

Ritu Sarin: What are the impediments, the challenges you face in making the RTI Act an effective tool?

Satyananda Mishra: There is no doubt that any government that would legislate on the right to information should take some pride in having legislated it. But as you know, it was done on the demand of the civil society that had worked for it for a couple of decades so no one can say that it was entirely a voluntary act on the part of the government. Unfortunately, making a law and implementing it are two different things. Making a law requires a decision at the highest political levels. But the implementation of the law is dispersed over a huge bureaucracy, which begins in Delhi and goes right down to the local panchayat level. Therefore, the perception of the people within the government about how much they should comply with the law has been always very wide. There are people who are very transparent and believe they must disclose information without much protest but by and large, officials have been not very cooperative about implementing the law. They need a lot of coaxing, a lot of coercion, from authorities like the Information Commission. There was another aspect to the RTI Act: there is a mandatory provision that within 120 days of the enactment of the law, every government office would publish 16 varieties of information. Not even a single government organisation can claim to have really complied with this. For the sake of form they have published, but if you scrutinise what they have published with what was expected of them, you will find that there is a very big difference. So, those in the field of RTI, whether in the Commission or outside, think that if the disclosure under section 4(1)(b), which was mandatory, had been done faithfully and truthfully, then a lot of the RTIs would have become redundant because that information would have been in the public domain.

Ritu Sarin: Is there a need for the CIC to be more aggressive? If CBI is being taken out of the RTI, should you be consulted, or have you told the government that you should have been consulted?

Satyananda Mishra: The government is free to pass any notification. People had challenged the notification on CBI in the Madras High Court and the Court had upheld the government’s right to keep the CBI out of RTI. But it has not helped them. Section 24 of the RTI Act has a provision which says that any information which pertains to allegations of corruption or allegations of human rights violation has to be given. Up to 95 per cent of requests made to CBI for information is for allegations of corruption, so how are they out of RTI’s ambit? If the intention of this notification was to keep CBI outside RTI, like IB or RAW, it has not worked out that way. About CIC being more aggressive, there is always a civil society demand that the Commission should be imposing more penalties because that is the only provision in the law which is of a coercive nature. But it cannot be a mechanical decision—that because the information has not been given, you will impose a penalty.

Unni Rajen Shanker: Your job involves analysing the law, hearing appeals, so should the Information Commissioner have a judicial background?

Satyananda Mishra: I don’t think so. I have been in the Commission for more than four years now, two as a Commissioner, and two as CIC. I have dealt with a variety of cases and a wide variety of government departments. I have never once felt that there was any particular question of law which needed to be adjudicated on. RTI is more or less like the right to delivery of services. Information is a piece of paper, that is the bottom line. The law defines information as anything which is available in written form, on material record. So there is no legal or judicial assessment to be done. Many of us who have been in the government for 36-37 years, we have dealt with much more complicated cases, decided on much more complicated issues which would need much greater application of the judicious mind than the kind of legal knowledge you need to deal with RTI cases. So I don’t think there is any particular need to have a judicial or legal background to be a good information commissioner.

Ajmer Singh: We have a peculiar situation where the former Army chief General VK Singh said Parliament should be dissolved. He said ‘gherao Parliament’. Since you are a former Secretary, DoPT, do you think action should be taken against him? Is it a violation of the conduct rules?

Satyananda Mishra: I will not be able to say offhand whether a retired person comes under the conduct rules. But like you, I was quite intrigued by that demand more so because this gentleman had requested the government that his date of birth should be taken as 1951. Had that been accepted, he would have been our sitting army chief. Imagine, if the sitting army chief had this kind of an idea about the government under which he would have been working, about Parliament too and that both should be dissolved, I shudder at the thought of what would have been the way to achieve that end. Under the Constitution, there is no particular provision about how Parliament has to be dissolved. Anybody cannot simply declare that Parliament stands dissolved.

Shyamlal Yadav: In my experience with RTI, government officers are learning how to confuse RTI applicants and how to deny them information. Also, the PM seems to be against RTI, others have criticised it. Do you foresee any threat to RTI, that it may be abolished?

Satyananda Mishra: No, I don’t think RTI can be abolished by any government. It would require extraordinary courage almost verging on an autocratic attitude to be able to really recall the RTI Act. But you could still stymie the Act by various stratagems, such as saying, ‘the information is not available’. Laws can only be implemented if there is a degree of consensus among the stakeholders and if some of the principal stakeholders do not exhibit that kind of commitment, then obviously the law will fail. It is necessary that every single training programme that is being conducted for government officials, includes a module on RTI and tells people why RTI should be a useful tool, instead of telling government officers how not to give information.

Y P Rajesh: In Maharashtra, every time we sent an RTI application, the response was “You have not made the payment in a correct format”, and nobody agrees on what is the correct format. Number two, if you ask a nodal agency for information, they will tell you this is with 25 different officers, please file an RTI to all 25 officers. How do you iron out these kind of glitches?

Satyananda Mishra: After seven years, the situation should have become clear, unfortunately, though the instances have become less common, there are still information officers who deny information because the fee hadn’t been paid in ‘A’ or ‘B’ way. There is a total lack of training and knowledge about RTI. Many people in civil society have suggested the government come out with an RTI stamp worth Rs 10. It would be so much simpler to introduce a stamp which would be readily available and which is, irrespective of the officer concerned, recognised as an application fee.

Rakesh Sinha: Should the RTI be extended to Public Private Partnerships (PPPs)?

Satyananda Mishra: Yes, absolutely. We have written to the government, to the Planning Commission several times demanding that RTI should be suitably extended to all PPP projects. We have said that the ministry or department which initiates the PPP project should make it a condition of the PPP project that the government’s participation in that project by way of resources must be available through RTI. Since the government is not doing it, we are advising citizens to ask for this information from the principal ministry. The RTI could be limited to the information in respect of the government’s participation in the PPP.

Shyamlal Yadav: Will the proposed privacy bill affect RTI? Justice Shah has recommended privacy commissioners, so will there be conflict of work between the CIC and the privacy commissioner?

Satyananda Mishra: The RTI Act itself has sufficient safeguard against the invasion of privacy of any individual. Section 8 (1)(j) clearly says that any information the disclosure of which will cause invasion of anybody’s privacy need not be given, except when it would serve a larger public interest. Now the Supreme Court has come out with the interpretations of the scope of this. In a particular order, it has been decided that in the case of disciplinary proceedings against a government employee, the chargesheet and the related documents would be construed as personal information. We didn’t consider it like that till now, we used to allow it to be given but now the law of the land is that it can’t be given.

Ajmer Singh: Is it possible to simplify RTI procedures? Maybe have a hotline that people could call and the RTI reaches their homes?

Satyananda Mishra: Yes, Bihar has established a 24-hour phone line service in Patna. They take such calls, record the request and then send it to the respective government department. They have simplified it by saying that RTI request need not be accompanied by the application fee but it could be paid separately. We could try this on a pilot basis.

Shyamlal Yadav: Amongst the states, which is the worst or the best in responding to RTI?

Satyananda Mishra: I can’t really say which state is better and which is worse but there is a direct correlation between the kind of awareness among users of RTI and the government’s responsiveness. Because the central government has very active users in the field of journalism and civil society, so it is more responsive. In Rajasthan, where civil society activism and RTI has been around for long, there is a much greater degree of awareness among the people. But I can’t say whether it translates into actual delivery of information.

Ritu Sarin: A serious problem is that important orders of the CIC are being challenged by government departments themselves. The cases are in court and the Supreme Court has not ruled. What is the point of the law if departments are going to challenge the orders?

Satyananda Mishra: This is very worrying because in about 99 per cent of cases where anybody has gone to court against an order of the CIC, it has been a government department; hardly any private individual goes to court against CIC orders. In many cases, government departments have appealed against the CIC order on what appears to us as innocuous pieces of information. Let me illustrate: when an individual is appointed with the approval of the Appointments Committee of the Cabinet, many people ask for papers relating to that appointment. The law is very clear that Cabinet papers will not be disclosed. However, when the decision of the Cabinet is implemented and the matter is over, then all the papers leading to the Cabinet’s decision will be disclosed. We passed orders in several cases and the government went to the High Court of Delhi and there is a stay order. It is surprising that this happens in cases with no ramifications whatsoever.

Praveen Raman: Do you want more organisations to brought under the RTI?

Satyananda Mishra: Right now, every single public authority is under the RTI, except those 23 or 24 which have been placed outside conditionally. There are many organisations, NGOs which receive benefits from the government but yet are not under the RTI. My worry is that if we extend the remit of the RTI to them, the number of cases arriving in the Commission could double from the current 25,000-35,000 per year. This is not an argument for not bringing in NGOs, wherever it is necessary.

Rakesh Sinha: Do most RTI requests seek personal information?

Satyananda Mishra: Yes, from a sample that we get by way of appeals, up to 75 per cent of applications are for personal information.

Shyamal Yadav: How many of these requests for information reflect a misuse of the RTI?

Satyananda Mishra: It’s not possible for us to make out which case is for genuine use and which is for misuse. But to those who say RTI is being misused, my answer is, which law is not being misused? We cannot abandon a law just because it is being misused. It is our failing that the law is being misused and we are not able to do anything.

Dilip Bobb: What other reforms would you like to see in the RTI Act?

Satyananda Mishra: The record keeping is in an abysmal condition in every government office. This law, when made in 2005, mandatorily provided that every department must catalogue and index its records and keep it in a manner that the retrieval of information is easy. Unfortunately, very little has been done in this regard. In the absence of records, the government will find it difficult to defend itself before civil society or the courts. Number two, information officers being appointed are at a very subordinate level—section officer or under-secretary. He would not command any respect within the department where the information is kept. Number three, some departments and ministries have cleverly appointed far too many information officers. So when you make an application and it contains five pieces of information, it is split among five different information officers. I have said in my orders that large ministries like Home, Defence, DOPT, HRD must have an RTI cell which should have the responsibility to collect the information and give it in a consolidated form.

Ajmer Singh: Recently, CAG said CVC and CBI should be constitutional bodies. What do you think of his remark?

Satyananda Mishra: There is a problem in demanding far too much freedom for our institutions. Any institution of the state must have some way of establishing its accountability. Parliament and the executive have accountability in the form of elections every five years. What is the accountability for the Supreme Court, CAG, or the Election Commission which are constitutional bodies? They can be removed by the process of impeachment. You and I know how easy or difficult that is. Therefore, if you create more and more institutions which are completely independent, and are, in a very nominal way, accountable to the people of India, whatever that means, how do you establish their accountability? When we demand constitutional status, we should also establish the accountability for those institutions.

Transcribed by Aneesha Mathur and Shalini Narayan