After 15 Years of RTI Act, Authorities Misusing It, Judiciary Misinterpreting It: Ex-Commissioner Dr Acharyulu
The Right to Information (RTI) Act 2005, which has empowered citizens to demand information from public authorities, has been time and again diluted by the establishment in an attempt to neutralise the Act’s power to ensure transparency and accountability towards the public. Distressingly, it is the public information officers (PIOs), most of whom have no competency or knowledge or training or authority to assess what should be denied and the public, and competent authorities who have the competence but who deliberately sabotage dissemination of information, that has led to the subverting of the powerful transparency law. Twisting the knife in the wound is the judiciary which, time and again, has given judgments against the spirit of the transparency law.
 
Former central information commissioner (CIC) Prof Sridhar Acharyulu made these observations at a Moneylife Foundation event held last week, titled 'Commonly Misused and Misinterpreted Exemptions under the RTI Act’. He, along with former CIC Shailesh Gandhi spoke intensely about the denial of information, defying the prescribed mandates in the RTI Act.
 
Dr Acharyulu rued “after 15 years of the RTI Act, we should be looking at the possibility of misuse, not from petitioners but from the angle of officers. When I was CIC, I observed that most of the PIOs are using exemption clauses without any application of mind. This is because they are entrusted with the heavy responsibility of defining the exemptions which they find hard to do as they do not have the knowledge, experience or infrastructure to assess what constitutes disclosures and non-disclosures. This, in my view, is a very serious stumbling block in the implementation of the Act.’’
 
According to Dr Acharyulu, the burden of the PIO has further increased 'terribly' with the amount of discretion as laid out by the 13 November 2019 judgement of the Supreme Court. He says “…the PIO is now expected to understand the terminology and language used by the petitioner and think of the probable consequences of disclosure and entire nuances of the RTI Act.
 
“He is expected to follow the principles of interpretation as the Supreme Court does and then decide whether to approach the competent authority or higher officers of public authority to decide the larger public interest. Though there are exceptions to the rule, the PIOs are not in a position to apply what is larger and comparative public interest exemptions of Section 8 and 9 and thus end up not using them or misusing them.”
 
Dr Acharyulu also explained that because there are two or three levels of public interest to justify the disclosure in Section 8, the PIO is bound to get confused. Because, in some of the provisions of this exemption Section of the RTI Act, the PIO can decide all by himself, while, in others, a competent authority will give the decision. So he says, “this being the dichotomy, he is not independent and is under instructions of the superior by law. This is a general limitation.’’
 
Taking the case of Section 8 (2), the former central information commissioner feels this is the most effective tool as it states that it “requires that even where an exemption provision or the Official Secrets Act applies, an official will still need to disclose the information requested if [the] public interest in disclosure outweighs the harm to the protected interests.’’  However, it is rarely used by the PIOs.
 
Apart from these exemptions, Dr Acharyulu spoke about several judgements which are impediments to the RTI Act. He states, that, “Section 11 of the RTI Act talks about the confidentiality of third party information except in the provision of Section 8 (1) which talks only about commercial confidentiality. However, in the 2019 Subhashchandra Agrawal case the Supreme Court judgment extended it to confidentiality of government information.’’
 
He further says, “this is the most interesting expansion of scope of restrictions and increasing scope of denial of the information and that’s the serious expansion of judicial intervention in 2019. It draws justification from the Preamble which mentions that we have to balance between the right to information and transparency and confidentiality. They pegged on to Section 11 which talks about the consultation of third party if he has any view on disclosure on the grounds of privacy and confidentiality of the third parties. Though this is not an exception, the SC made it a new ground for exception – confidentiality of government information.’’
 
Dr Acharyulu says that the courts have prescribed undue expansion of  Section 8 (1) (a) which is supposed to deal with sovereignty, integrity and economic interests; but they have used this to deny any information of government like contract documents of a private partner and so on.
 
The Reserve Bank of India (RBI), Dr Acharyulu feels is the biggest violator of not only the RTI Act but of the SC judgement too. “The SC has given a comprehensive judgment in the 2015 Jayantilal case which is a significant judgment as it has upheld the letter and spirit of RTI Act. It is a real vindication of transparency in the financial institutions. We can all be proud of that. All rulings upheld are all orders of Shailesh Gandhi for which he should be congratulated. He prepared good ground, compelling the SC to give this historic order.’’  
 
“However, RBI, despite the Jayantilal judgment, defied the SC as the board of governors said they cannot disclose the information. And what a fantastic defiance it was as they announced it on their website and instructed the PIO not to give information. That propelled me to give show cause notice to the RBI governor, saying that he was obstructing information. However, they sought more time to respond, as my term as CIC was going to end in one month.’’
 
Way back in 1981, says Dr Acharyulu, in the SP Gupta case, the first point of transparency arose out of judicial transaction about appointment and transfer of judges. “When raised as an issue to challenge the transfer of judges, the SC clearly stated that file notings for appointment of judges shall be in the public domain. This historic judgment is not implemented till today but several spokes were introduced and added after that judgment. Even today transparency in judicial appointments is a doubtful question.’’
 
If you examine the restrictions on RTI after the 2019 judgement, Dr Acharyulu reveals that criminal charges, educational qualification, economic status, income tax filings are all now treated as private information. Para 59 of the judgment of 2019 lists the information that can be denied which includes name, address, physical, mental and psychological status of a government officer. It also includes his professional records like evaluation, disciplinary proceedings, medical records and medical expenditure – all of those were brought under the privacy clause.
 
Concluding in a positive note, Dr Acharyulu stated that “the hope of RTI lies in Section 2 (f), Section 8 (2), Section 8 1 (j) and Section 22. In spite of so many misuses, interpretations from judiciary, Section 22 states that RTI Act will override all legislations in the country, once you bring information into the ambit of information, the PIO is entrusted with the obligation of delivering that information. In my view, this is not properly used by PIOs and is grossly misused by higher institutions like RBI with other banks following it. Another fortunate thing is that two more judgments reaffirmed the Jayantilal case making it mandatory for the RBI and banks to give such information.’’  
 
Jayantilal Case –
 
A new area of restriction has been imposed on the new ground of judicial independence for non-disclosure. If there is an adverse report against a judge or any term in the agreement that may affect commercial confidentiality of third party, information cannot be given as per the SC order. Now, the motive for seeking information has to be explained by the party so that public interest can be decided. In NV Ramana’s separate judgement, the burden was shifted on to the petitioner to explain the grounds for public interest while the law specifically placed it on the PIO.
 
Now, in these adverse times the RTI has to be supported by the media and activists without which it would be further torn apart, says Dr Acharyulu.
 
 
(Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.) 
 
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    COMMENTS

    m.prabhu.shankar

    4 weeks ago

    Excellent Excellent

    veereshmalik

    4 weeks ago

    Probably the best reality check on the RTI that I have read in a long, long time. Thank you very much indeed.

    Madhya Pradesh Information Commissioner Fines PIO Rs25,000 for ‘Fixing’ Hearing with RTI Applicant
    The Madhya Pradesh state information commission (MPSIC) has been facing an unusual problem. Right to Information (RTI) applicants, who file second appeals with the state’s CIC (chief information commissioner) after being denied information by the relevant public information officers (PIOs), suddenly do an about turn. During the second appeal hearing before the SCIC, the very applicants suddenly say that they do not want or need the information anymore. Some have even come up an affidavit to make the point. Several ICs in Madhya Pradesh have faced this strange situation.
     
    Things got even more bizarre at a second appeal hearing on 9 October 2020, by information commissioner Rahul Singh. The PIO came to the hearing armed with an affidavit on behalf of the RTI applicant which said that he did not need the information anymore, hence, the PIO had no obligation to furnish it. 
     
    Mr Singh proved to be one jump ahead of the PIO. Just a few days earlier, the RTI applicant had been specifically asked by the IC if he still wanted the information, since it the matter was three years old. This was done before he fixed the hearing date. The applicant had replied that he still wants the information. So the sudden volte-face during the appeal caused suspicion that there was a tacit understating between the applicant and the PIO. Mr Singh decided to set an example.
     
    Mr Singh stated that PIOs often convince RTI appellants to settle matters among themselves to avoid punishment meted out by the state information commission for denial of information. Mr Singh therefore decided to fine the PIO Rs 25,000 since he had attempted to fix the proceedings. He also issued a stern warning to both the RTI applicant and the PIO. 
     
    This hearing pertained to an RTI application filed by Dr Ajay Shankar, a lawyer in Satna district of Madhya Pradesh. The application, filed three years ago at tehsildar of Raghuraj Nagar of Satna district’s office sought information about the laws and rules under which the tehsildar undertook the work of the revenue inspection board and asked for a list of his responsibilities there. 
     
    The PIO BK Mishra of Raghuraj Nagar Satna dismissed the application on the grounds that it was worded as a question and the RTI Act only requires him to provide information that is available and not answer questions. When Dr Shankar filed a first appeal, the first appellate officer (FAA) ordered that the information be provided. In spite of this order, the PIO refused to provide the information.
     
    The second appeal reached the office of information commissioner Rahul Singh after a three-year delay and he scheduled a hearing on 9 October 2020. 
     
    During the hearing, the RTI applicant, Dr Shankar, said that he no longer required the information and asked for the matter to be settled and the file closed. He also said that he had received the information in the past. The PIO, Mr Mishra presented an affidavit by Dr Ajay Shankar to this effect.
     
    Observing this tacit understanding between the two, Mr Singh, admonished both parties, since the applicant had earlier confirmed that he did, indeed, want the information.
     
    Mr Singh stated in his order that the Commission cannot view such fixing as a mute spectator as it would adversely affect the provisions of the Act. He also said that many such cases have come before the Commission in which the appellant, during the hearing, first demands action against the PIO and then when the SIC initiates the process, the appellant and the PIO reach an agreement, in order to avoid punishment. 
     
    After this, the appellant presents a certificate of satisfaction in favor of the PIO seeking to end the case. Mr Singh also said that such fixing affects the basic spirit of the Act hampering transparency in the functioning of the administration.
     
    Mr Singh also took the RTI applicant Dr Ajay Shankar to task. Asked when the information had been provided in the past (based on which he wanted to withdraw his RTI request), it was determined that the PIO had provided the information only after Mr Singh had issued a notice and date of the second appeal hearing. The IC Singh said in his order that it is clear that the appellant Dr Ajay Shankar had no intention of seeking information but had some other motive for obtaining the information.
     
    When Dr Shankar asked Mr Singh to forgive PIO Mishra, the IC told the appellant that if he has so much sympathy for the PIO, he was free to pay the Rs25,000 fine himself on behalf of the PIO. On hearing this, Dr Ajay Shankar changed his stand and said that he was merely sharing an opinion in favor of the PIO Mishra.
     
    The State Information Commissioner says, had the appellant ended the matter before the notice for the second appeal hearing was issued, it would have been in accordance with the Act. If action is initiated as per the will of the appellant, then the reversal of the appellant's stand is not in accordance with the Act. 
     
    Also, the provision of punishing the PIO under the RTI Act does not depend on the will of the appellant as mentioned in Section 20. Public information officers are compulsorily punished for violation of the Act and this is not an optional provision.  
     
    Mr Singh also objected to the fact that the affidavit issued by the appellant was in possession of the PIO. It was clear that the affidavit was prepared after an understanding and discussion between the two and given by the appellant to PIO Mishra.
     
    Mr Singh instructed the tehsildar DK Mishra at Tehsil Raghurajanagar in Satna to pay a fine of Rs25,000 and deposit the fine amount within one month to the Commission and also to register a noting of this fine in the service book of Mr Mishra, the PIO.
     
    The entire proceeding of the hearing by the commission was also broadcast live on its Facebook page. Watch the live transmission of the hearing here…
     
    (Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.) 
     
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    COMMENTS

    raviforjustice

    1 month ago

    A very interesting case indeed. I am glad that there is at least one IC who means business. Rahul Singh checking with the appellant about the info he sought days before sending notice for hearing was probably born out of his experiences earlier. The affidavit of the appellant was rightly dismissed as irrelevant as the Act mandates penalty for the simple reason of delay, which in this case was definitely more than 100 days, demanding Rs 25000/ as penalty. But will the PIO be able to go to court and get the penalty waived based on the affidavit of the appellant remains to be seen.

    REPLY

    glnprasad52

    In Reply to raviforjustice 1 month ago

    SPIO may not go for Court as the HC several times decided that no one can have a say on IC decision and it was purely his discretion, and the citizen's right is only for information and nothing else.

    glnprasad52

    1 month ago

    Simply great. If the same position continues, the real purpose of RTI enactment is served. The second appeals will drastically drop at least 50% by next month. What prevents other ICs to follow in line with the simple clause of penalties is not known.

    ak.upadhyay

    1 month ago

    Good job Rahul Singh Ji. Long live.

    In 15 Years Over 2.25 Lakh RTI Second Appeals Pending, Thanks to Laggard Information Commissioners and Their Appointments
    The RTI Act 2005, which celebrates its 15th birth anniversary today, does not have much to sing and dance about, as the top-of-the-chart officers, that is information commissioners has let down this one of strongest transparency laws in the world, thanks to the sluggishness in the performance (or the absence of it) of information commissioners across the country and deliberate negligence of governments in the centre and states in filling up vacancies.
     
    In what can be termed as a rude joke to the RTI Act, which is the only citizen-friendly law that has empowered him to demand and procure information from most of the government departments, the backlog of second appeals of 20 information commissions across the country stands at a whopping 2,21,568 as of July 2020. And on a more serious note, only 2.2% of the public information officers (PIOs) have been penalised, thus letting most of them scot free!!
     
    These revelations are a part of the `Key findings of the "Report Card on the Performance of Information Commissions in India, 2020’ carried out by Delhi based Satark Nagrik Sangathan (SNS). It has compiled a report on the performance of the 29 ICs across various states.
     
    The report observes that 15 years after the implementation of the RTI Act, "the functioning of information commissions is a major bottleneck in the effective implementation of the RTI law.’’ The reasons are as follows:
     
    One of the primary reasons for the backlog is the failure of Central and state governments to take timely action to appoint ICs to the central information commission and state information commissions, respectively.
     
    Large backlog of appeals and complaints in many commissions across the country has resulted in inordinate delays in disposal of cases, which render the law ineffective.
     
    Performance of ICs, in terms of exercising their powers to ensure proper implementation of the law, has been a cause of great concern to the RTI community. Commissions have been found to be extremely reluctant to impose penalties on erring officials for violations of the law.
     
     
    The findings of the report are as follows:
     
    Nine out of 29 (31%) information commissions are currently headless, i.e., functioning without a chief. These include the CIC and the SICs of Uttar Pradesh, Rajasthan, Goa, Manipur, Telangana, Jharkhand, Tripura and Nagaland.
     
    2 SICs—Jharkhand and Tripura—are completely defunct as no new commissioners have been appointed upon the incumbents demitting office. 
     
    About 1,78,749 appeals and complaints were registered between 1 April 2019 and 31 July 2020 and nearly two lakh cases (1,92,872) were disposed.
     
    The number of appeals and complaints pending on 31 July 2020 in the 20 information commissions, from which data was obtained, stood at 2,21,568. The backlog has been steadily increasing.
     
    The report calculates the estimated time each commission would need to dispose a new appeal/complaint.  Odisha SIC would take 7 years and 8 months to dispose a matter. In Jharkhand SIC, it would take 4 years and 1 month, while in Maharashtra, CIC, Rajasthan and Nagaland it would take 2 years or more. The assessment shows that nine commissions would take more than a year to dispose of a matter.
     
    Penalty was imposed in just 2.2% of the cases disposed by information commissions.
     
    The report is primarily based on an analysis of information accessed under the RTI Act, from 29 information commissions across India. A total of 159 RTI applications were filed with state information commissions (SIC) and the central information commission (CIC). 
     
    The information sought included: 
     
    Number of commissioners serving in each commission for the period April 2019 to July 2020 and their backgrounds;
     
    The number of appeals and complaints registered, disposed, returned by each IC for the period April 2019 to July 2020;
     
    Number of appeals and complaints pending before each IC on 31 July 2020; 
     
    The quantum of penalties imposed by each IC, and the amount recovered, for the period April 2019 to July 2020;
     
    The quantum of compensation awarded by each IC, for the period April 2019 to July 2020;
     
    Number of cases in which disciplinary action was recommended by each IC; 
     
     
    States Anjali Bharadwaj, one of the members of SNS, “This initiative is part of an effort to undertake ongoing monitoring of the performance of information commissions across the country with the objective of improving the functioning of commissions and strengthening the RTI regime.”
     
    Highlighting the importance of the role of information commissioners of the RTI Act, the Report states that, “the commissions have wide-ranging powers including the power to require public authorities to provide access to information, appoint public information officers (PIOs), publish certain categories of information and make changes to practices of information maintenance.
     
    “The commissions have the power to order an inquiry if there are reasonable grounds for one, and also have the powers of a civil court for enforcing attendance of persons, discovery of documents, receiving evidence or affidavits, issuing summons for examination of witnesses or documents. 
     
    “Section 19(8)(b) of the RTI Act empowers information commissions to “require the public authority to compensate the complainant for any loss or other detriment suffered.”
     
    “Further, under section 19(8) and section 20 of the RTI Act, information commissions are given powers to impose penalties on erring officials, while under Section 20(2), commissions are empowered to recommend disciplinary action against a PIO for 'persistent' violation of one or more provisions of the Act.”
     
    (Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.)
     
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    COMMENTS

    mahesh.bhatt

    1 month ago

    Welcome to alternate Tariq pe Tariq circuses Welcome to Junglee Bharat.con Mahesh Bhatt Kirticorp

    kd.paranjpe

    2 months ago

    The RTI act was enacted to empower citizens. It has improved the the responsiveness of a few departments of the Govt. However, a lot needs to be done to ensure that all Govt Depts respond to Requests for Information (RoI). The Volunteer Organization SNS could also provide information, the number of answers provided. We may have a classification as a) Unresponsive b) evasively responsive, c) Uselessly responsive and d) Usefully responsive.
    Another classification could also classify based on the extent of delay in responding. These bits of information could help us to assess the Govts accountability to the citizenry.

    svrsama2015

    2 months ago

    A very timely piece articulating the ground realities and highlighting the findings of SNS. The ruling establishment is clearly determined to obstruct functioning of the RTI Act, which is no less heinous than causing obstruction of justice. Truly, our country has degenerated into a fiefdom of politicians and bureaucrats. Any instrument that aims to check the arbitrariness of these two groups is systematically sabotaged by the reigning aristocracy....Kudos to the RTI warriors for keeping up the struggle .

    S.SuchindranathAiyer

    2 months ago

    No such pathetic law as RTI can overcome the Colonial Commissars who run India's Quota (Reservations / License) and Corruption (Extortion / Percentage Raj to Communist precepts, but accountability.
    Thus:
    (1) Overhaul all the laws of the country to become citizen centric rather than to perpetuate India’s colonial-communist legacy tyranny over the commons.
    (2) Repeal all laws that do not DIRECTLY contribute to the safety, prosperity, welfare and security of the Individual.
    (3) Dismantle all the departments which are made redundant by these revised laws as they are no longer required to harass and extort from the ordinary citizen.
    (4) Define each and every role on Government Pay Roll from Prime Minister, Chief Justice and President down to every Class four Officer by listing their respective unique and general objectives and Key Responsibility Areas (KRA). Their Key Performance Parameters (KPP), Their accountabilities for non performance. Create structure charts and maps that lay this out for public access. Every Performance Parameter must have a means of quantifying accomplishment over time to qualify as a KPP and must be a derivative of the KRA.
    (5) Set up a framework (system) which ensures that every role incumbent negotiates the role and commits quantitative performance goals with the immediate superior and those whom the role benefits, every quarter, to continue to be paid salaries. Penalize non performance and reward performance by increments and bonuses, salary reductions and termination.
    (6) Make bribe taking a criminal capital offense, make bribe giving a non offense as power is with the bribe taker and therefore all bribery is actually extortion by the bribe taker.
    (7) Set up a a public feedback system whereby members of the public (the customers of each and every role) can assess the performance of the role incumbent on the basis of Performance Parameters, with comments/ justification and these are given at least 50% weightage in performance appraisal for purposes of increments, bonuses, salary reduction, removal, etc.

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