It has been increasingly seen that transparency law continues to be driven by citizens who are keen to ensure its effectiveness and relevance. Approaching a court has become the norm rather than the exception as central and state governments drag their feet to make the RTI Act more effective. Citizens, however, are upbeat when it comes to their rights, writes ASHUTOSH M. SHUKLA.
On January 8, 2021, when the government of Maharashtra asked the Bombay High Court for more time to inform about developments related to the appointment of Information Commissioners (IC), it yet again showed a lack of prior planning and preparedness.
The state asked for more time as the committee which sits to appoint ICs had not done so. In November 2020, it had told the Court that developments on the appointments of ICs would be informed to it by January 8, 2021. The state government was responding to a PIL filed by RTI Katta, a Pune-based body that works towards the effectiveness of the RTI Act.
It was not the only PIL that RTI Katta had filed. Another one was related to starting a video-conferencing facility for RTI so that first appeal hearings and quasi-judicial and administrative work hearings which had halted during the Covid-19 lockdown could start.
Vijay Kumbhar of RTI Katta said: “The idea was to ensure that the Information Commission and quasi-judicial work is done online. Courts went online and so did the other commissions, but this did not happen here. When the Supreme Court shifts, everyone else can. That is the reason we filed these PILs–because we did not see any movement here.” Both the PILs were filed in September 2020 when legal notices sent to the state government and Maharashtra State Information Commission (MSIC) did not get any response.
Before sending the legal notices in July 2020, efforts were made to reach out to the IC. Though none of the demands made was outside the scope of routine work of the government, they did not get a response.
In the legal notice to MSIC, the petitioners asked for a roadmap for clearing second appeals and complaints within 45 days from the date of filing. The petitioners mentioned three High Court judgments that had said that 45 days is a “reasonable period for deciding the second appeal”.
However, this was not being followed and the waiting period at different benches ranged between one to three years, killing the very essence of the RTI Act. A whopping 59,402 appeals and complaints were pending as on October 31, 2020, at MSIC, when, in fact, an applicant is supposed to get information within 30 days if not exempt and available suo motu.
The legal notice to MSIC had first sought a road map and not immediate compliance of any sort on timely disposal of appeals and complaints. At the High Court, MSIC pointed out that the RTI Act had not specified a time limit for disposal of appeals.
The waiting period at different benches ranged between one to three years, killing the very essence of the RTI Act. A whopping 59,402 appeals and complaints were pending as of October 31, 2020, at MSIC, when, in fact, an applicant is supposed to get information within 30 days if not exempt and available suo motu.
It further mentioned many reasons for not being able to set a roadmap, including vacancies of the IC and other posts that were further impediments. The Court took up the issue of appointment as it felt that vacancies needed to be filled before taking up other issues and deciding a roadmap. It then asked that the state be made a party to the issue.
In the legal notice to the state government, which was sent to the chief secretary, the petitioners had asked for an arrangement for starting a video-conferencing facility. While MSIC started second appeal hearings in June after an uproar, quasi-judicial, appeal hearings and administrative hearings at the state government level did not take place even after the legal notice, showing a lack of proactivity.
In the case of Maharashtra, the Court even asked the government to consider its suggestion of increasing the number of benches — a demand activists and even ICs made several times.
The state government informed the High Court that it had directed all additional chief secretaries and principal secretaries that measures have been put in place for online hearings of first appeal and quasi-judicial work only days before the hearing in October 2020.
Not satisfied with just the intent, the petitioners asked for a more detailed operating guideline that would remain even after the pandemic. The state said that a committee was being formed, which would take suggestions from the petitioners before “an appropriate decision is taken in regard to continuation of quasi-judicial hearings through Video Conferencing”.
The issue of appointment of ICs had often led to allegations that the government of the day tried to kill RTI by not appointing them. The actions of governments only lent credence to such allegations over a period of time. In 2018, with a high number of vacancies at the Central Information Commission (CIC), a PIL was filed for not just filling vacancies there, but also in several State Information Commissions (SIC), including Maharashtra. Other states covered included Andhra Pradesh, Telangana, West Bengal, Gujarat, Karnataka and Nagaland.
An order was passed in February 2019 wherein the Supreme Court said that the process of appointment should start in advance, an advertisement be put out for the posts, a committee be formed and commissioners appointed in a transparent manner and from different backgrounds. It emphasised that since it is known when a vacancy will arise, steps be taken to immediately fill it.
In 2018, with a high number of vacancies at the Central Information Commission (CIC), a PIL was filed for not just filling vacancies there, but also in several State Information Commissions (SIC), including Maharashtra. Other states covered included Andhra Pradesh, Telangana, West Bengal, Gujarat, Karnataka and Nagaland.
However, Commissions continue to be stacked with bureaucrats who are in the good books of politicians.
In the case of Maharashtra, the Court even asked the government to consider its suggestion of increasing the number of benches — a demand activists and even ICs made several times. The Court observed: “Further, going by the pendency, which is huge, it would be appropriate if at this juncture the SIC has a total strength of 1 SCIC and 10 Information Commissioners. This suggestion may be considered and decision in this behalf shall be taken by the State Government within one month and the newly created posts shall be filled up within six months from the date of this judgment.”
The RTI Act allows for 10 commissioners and a Chief Information Commissioner. In Maharashtra, besides the chief, only seven posts have been created. Presently, of the total eight, three posts are vacant and three commissioners have held an additional charge. This affects functioning at their benches. When the apex court heard the case, three posts were vacant, but pending appeals and complaints were around 40,000. Vacancies this time around have been longer, with the last appointment in January 2019 and second appeals and complaints jumping sharply.
The prodding through the Court stands starkly against the fact that Maharashtra, after the Central Information Commission, sees the most number of RTI applications being filed in the country. The last available data shows that 7.57 lakh applications were filed in 2017.
“Despite the Supreme Court order in February 2019, there was no compliance. We had to move court again and again for the appointment of Information Commissioners. They have made some appointments, but still there are vacancies in the CIC. In the case of other commissions too, there are vacancies. We have filed another application for urgent hearing,” said Anjali Bhardwaj, who filed PIL in the apex court over the appointments of ICs.
The RTI Act allows for 10 commissioners and a Chief Information Commissioner. In Maharashtra, besides the chief, only seven posts have been created. Presently, of the total eight, three posts are vacant and three commissioners have held additional charge. This affects functioning at their benches.
Bhardwaj said that in the case of the CIC, no appointment was made since 2014 unless activists and citizens moved the court for the same. Activists and citizens said that certain aspects should not have led to citizens approaching courts. “Since 2011, we have had an e-governance policy where everything is on the computer. Many files are generated and replied to in the same way. There was no reason why online work should have not started here,” said Kumbhar of RTI Katta.
Petitioners said that while it showed a lack of political will towards transparency, there was no holding back. “When a servant does not work, we have to get the job done. That is what we have tried to do here. The bureaucracy has still not been out of the British mindset it lives in,” said Kumbhar.
(Ashutosh M. Shukla is an independent journalist based in Mumbai. He has been writing on RTI and transparency-related issues. The views expressed are personal.)