A recently published report card on the performance of Information Commissions under the Right to Information Act, 2005 by a citizens’ group presents a damning indictment of the state of information commissions across the country, which prevents the effective implementation of the Act, writes SHREYASI SINGH.
OCTOBER 12, 2021 marked the 16th anniversary of the Right to Information Act, 2005 (the RTI Act). The foundations of the law were established by various Supreme Court judgments which held the right to information to be an integral aspect of the right to freedom of speech and expression under Article 19.
In the 16 years since its implementation, the law has empowered the ordinary citizen to exercise control over the corrupt and arbitrary exercise of State power. The RTI Act has been one of the most empowering legislations for citizens, widely used by them to hold the government accountable for the fulfillment of their basic rights. The COVID-19 pandemic further highlighted the significance of information dissemination and the need for accurate and easy-to-access information on relief measures undertaken by the government, including but not limited to, the availability of hospital beds, essential drugs, and medical equipment like ventilators in health facilities.
To mark the occasion, the citizens’ group Satark Nagrik Sangathan (SNS) prepared a report titled “Report Card on the Performance of Information Commissions in India, 2021”, primarily based on an analysis of information accessed under the RTI Act from 29 Information Commissions (ICs) across India under five broad parameters – i) number of appeals and complaints registered and disposed of by ICs, ii) backlog cases, iii) estimated waiting time for the disposal of an appeal/complaint filed in each commission, iv) penalties imposed by the commissions and v) transparency in their working.
The aim of the report is to strengthen the RTI regime by improving the functioning of commissions and is based on the previous national assessments of the RTI regime carried out by Research, Assessment, & Analysis Group (RaaG), SNS and the Centre for Equity Studies. The report notes that “the functioning of information commissions is a major bottleneck in the effective implementation of the RTI law.”
Recently, in the case of Anjali Bhardwaj versus the Union of India (2019), the Supreme Court also observed relating to the ICs that “… in the entire scheme provided under the RTI Act, the existence of these institutions becomes imperative and they are vital for the smooth working of the RTI Act.” It found that 21 of the country’s 29 Commissions did not hold even a single hearing during the first three phases of the country-wide lockdown in 2020.
While the Central Information Commission and a few State Commissions used audio and video conferencing to hear and decide cases, most Commissions did not have the resources to hear even urgent cases.
Assessments of the functioning of ICs have shown that appointments to the Commissions are not made in a timely manner, resulting in a large number of vacancies. The report noted the Supreme Court’s observations in Anjali Bharadwaj, regarding the non-appointment of Information Commissioners, that “the proper functioning of commissions with an adequate number of commissioners is vital for effective implementation of the RTI Act.” The apex court further emphasized that if there are not an adequate number of commissioners, it would negate the purpose of enacting the RTI Act.
The assessment found that several ICs were non-functional or were functioning at reduced capacities, as the posts of Commissioners, including that of the Chief Information Commissioner, were vacant. In the absence of functional Commissions, information seekers have no reprieve under the RTI Act, if they are unable to access information as per the provisions of the law. The Report observed thatthis was “particularly concerning given the humanitarian crisis induced by the COVID 19 pandemic, which has made people, especially the poor and marginalised, even more dependent on government provision of essential goods and services like healthcare, food and social security”.
The states of Jharkhand, Meghalaya and Tripura are currently running without any Information Commissioner, thus depriving the people of their right to seek information from public authorities under the RTI Act and leaving no recourse for them if their right to information is violated. The assessment found that “currently,in 3 Information Commissions in the country all posts of Information Commissioners, including that of the Chief, are vacant and another three Commissions are functioning without a Chief Information Commissioner”.
The Central Information Commission was without a Chief for a period of 2 months, which has been the fifth time in seven years, due to the delay in appointing a new Chief upon the then Chief demitting office. In December 2019, when there were four vacancies in the CIC, the Supreme Court had directed the central government to fill all vacancies within a period of three months, but that has not been adhered to yet. The non-appointment of Commissioners in the ICs in a timely manner leads to a large backlog of pending appeals and complaints.
The report calculated the time taken for disposal of complaints using the data on the backlog of cases in ICs and their monthly rate of disposal. The assessment found the number of appeals and complaints pending on June 30, 2021, in the 26 ICs at 2,55,602, with the Maharashtra State Information Commission (SIC) having the highest number of appeals/complaints at 74,240 as of June 30, 2021.
Shockingly, the report observed that the Odisha SIC is likely to take 6 years and 8 months to dispose a matter. It further showed that about 13 Commissions would take a year or more to dispose a matter, considerably higher than the figure from the 2020 assessment wherein it was found that nine Commissions would take more than a year. This trend is concerning to the very purpose of the RTI Act, i.e., time-bound access to information.
The Report noted two major factors behind such long delays in disposal of cases – i) vacancies in Commissions and ii) a tardy rate of disposal by Commissioners.
Non-imposition of penalties, lack of transparency
Section 20 of the RTI Act requires the Commission to initiate penalty proceedings, in case of a violation of the provisions of the RTI Act. Thus, it performs the function of giving the law its teeth by acting as a deterrent from Public Information Officers (PIOs) violating the law. But the report found that the penalty imposed by ICs is in an extremely small fraction of the total cases in which penalty was imposable. It found that in a random sample of orders of ICs, 59% orders recorded one or more violations listed under section 20, leading to potentially imposable penalty in 40,860 cases out of 69,254 cases. However, penalties were imposed only in 4.9% cases.
The report noted that the ICs failed to impose penalties in more than 95% of the cases. Such non-imposition of penalties in deserving cases by ICs destroys the basic framework of incentives built into the RTI law and promotes a culture of impunity.
The report also highlighted the lack of transparency in the functioning of ICs. It mentions that 21 out of 29 ICs (i.e., 72%) have not published their Annual Report for 2019-20. Reasonably, the annual reports upto 2020-21 should be made available, but the report mentions that only the CIC and SICs of Arunachal Pradesh, Assam, Chhattisgarh, Gujarat, Mizoram, Nagaland, and Uttar Pradesh have published their Annual Reports online on the official websites. This is despite the statutory obligation under Section 25 of the RTI Act, which obligates each Commission to prepare a report on the implementation of the provisions of the RTI Act every year, to be laid before the Parliament or the state legislature.
(Shreyasi Singh is a B.A., LL.B. (Hons.) student at Dr. Ram Manohar Lohiya National Law University, Lucknow. The views expressed are personal.)