The COVID-19 pandemic has put a brake on the Right To Information Act (RTI) not only because the postal department is paralysed but also because public authorities are focusing their energies on managing the coronavirus pandemic and, more importantly, because all but one of the 29 state information commissions(SICs) have closed their offices, scheduled to open only after the lock-down.
With the approach that transparency and accountability are indispensable during public health emergencies like the COVID-19 pandemic, the Commonwealth Human Rights Initiative (CHRI) recently conducted a rapid telephonic survey by calling up the 28 state information commissions (SICs) and the one Central information commission (CIC).
The findings reveal that all but one of the 29 information commissions established under The Right to Information Act, 2005 (RTI Act) have shut down, in the first and second phases of the national lock-down. It also revealed that, while the Delhi-based CIC resumed hearings in appeal and complaint cases from 20 April 2020, its counterparts in the states are not yet functional.
Shikha Chhibbar, programme officer with CHRI's access to information programme, made phone calls over five days, to all SICs across the country to find out whether they are functioning or not. The report states: “The CIC started working in right earnest during the first phase of the lock-down to resume case hearings on 20 April, 2020 onwards. Apart from internal consultations, it also held two rounds of external consultations with civil society advocates and former chief information commissioners about its plans for resuming work. The cause list displayed for the week beginning 20th April shows that the CIC scheduled hearings through audio conferencing in at least 337 cases. At close of business on 25th April (Friday), decisions in 279 cases had been uploaded on its website.”
As for the SICs, none of them is functioning and so the pendencies, which are large in most SICs, have been frozen until the lock-down ends.
With most SICs having ineffective RTI online application facilities, the picture of transparency under the RTI Act is even grimmer. Elaborates Venkatesh Nayak, RTI researcher and programme head, access to information programme, “the lock-down has effectively prevented citizens from filing RTI applications by post. Post offices are refusing to accept mail that requires transportation outside the same village, town or city. Few governments have put in place online RTI submission facilities like those at the Centre, and in Maharashtra and Delhi.
"Media reports and ad hoc helpline numbers are unable to effectively substitute the regime of transparency and accountability established by the RTI Act in which citizens play an active role as seekers of information. The COVID lock-down has turned most of the citizenry into passive consumers of information that the administration releases on a 'need to know' basis."
The report states that there are various issues on which transparency is mandatory during this grave pandemic crisis. Some of them on which RTI should be filed are:
€ The issue of lakhs of migrant workers being either in government or privately run camps due to quarantine restrictions or because borders between states are closed for passenger traffic. There is very little data in the public domain about their numbers and well being across the 718 districts in the country.
€ State-wise data about the movement of food grains and other essentials is available in press releases put out by the concerned departments, but there is no transparency about distribution data at the district and fair price shop level.
€ Corona testing equipment purchased by the government is turning out to be faulty. There is hardly any detail in the public domain about the decision making process or who has been held accountable for approving purchase of poor standard testing kits. A district-wise consolidated list of COVID-19 treatment facilities is also not available for the whole country.
€ Scores of healthcare workers are contracting COVID-19 infection amidst complaints of inadequate distribution or poor quality of personal protective equipment (PPE). Front line health care professionals are losing their lives one by one trying to save other patients. There is no information about who is being held accountable for not providing adequate protection to the country's primary line of defence against the virus.
€ Police highhandedness in enforcing restrictions on people's movement is surfacing every day. There is no information about action taken against security personnel who beat up people, particularly the poor who are out in search of food and drinking water. Nor is there follow-up information about what the police do after arresting miscreants for attacking frontline healthcare workers.
However, the COVID-19 pandemic has come as a good excuse for the government to seal the open door policy under the RTI Act. As Pune-based RTI activist, Vivek Velankar states, ``This is the time to open tenders and I would like to use RTI to know who is getting the contracts for various works in the city. In this time of the pandemic, last week the standing committee of the Pune Municipal Corporation approved beautification of traffic islands of Pune. Is this is a priority? But even if I ask under RTI, it would be seen as insensitive. We have been forced to wait until the lock-down is lifted as many questions need to be asked on governance during Covid times.’’
The Office Status of Various SICS (as per the CHRI Report)€
Only the
SICs of Haryana,
Rajasthan and
Uttarakhand were open during the fi
rst phase of the lock-down, with barely one or two staffers each. A security guard answered the phone in Haryana saying that none of the staff was present during the lock-down. The Uttarakhand SIC was manned by a couple of junior level staffers who were unsure about when the SIC would resume work.
€ During the second phase of the lock-down (which is in force at the time of writing this report) nobody picked up the phone at the Uttarakhand SIC. An individual present at the office of the Haryana SIC, who did not identify himself, stated that hearings might be resumed after the lock-down ends.
€
During the
second phase of the lock-down my colleague was able to get through to the
SICs in Andhra Pradesh,
Goa,
Telangana and
Tamil Nadu as well. The Goa SIC had started working with a couple of junior level staffers who were unsure when hearings would resume. They said, none of the ICs nor the senior staff were attending office. Only one staffer was attending office in each of the SICs of Andhra Pradesh, Telangana and Tamil Nadu. All of them said they were unsure of the exact date on which the hearings would resume in their respective SICs.
Goa and Telangana SICs were being manned by a lady staffer each.€
During the second phase of the lock-down,
we learnt from a senior woman journalist of her experience with the Assam SIC. The SIC was open but the lone staffer refused to accept the second appeal which she wanted to submit. He is said to have told her that there was no certainty when the SIC would resume work.
However when my colleague called up the Assam SIC office during working hours of both phases of the lock-down, nobody picked up the phone.€
The
Odisha SIC was also closed and none of its landline numbers was functional. My colleague tried their
Helpline No. advertised on their website.
Nobody responded to the call.
€
In the
Sikkim SIC, nobody answered the calls made to their landline numbers. When my colleague called up the mobile number of the secretary displayed on the website, a gentleman stated that he was no longer working in that position. Next my colleague called up the mobile no. of the state chief information commissioner (SCIC) shown on the website. The individual who answered the call stated that he was not the SCIC of Sikkim! He also indicated that the SIC would not resume work until the lock-down is lifted in May. The SIC's
website lists the mobile telephone nos. of 32 individuals working there, starting with the SCIC down to the
safai karamchari (janitor).
€ Nobody responded to the calls made to the landline numbers of other SICs during both phases of the lock-down.
€
Five SICs, namely, those of Assam, Bihar, Goa, Rajasthan and
Uttar Pradesh are headless. the state chief information commissioner's post remains vacant for the past several months in these bodies.
€ The SICs of Bihar and Madhya Pradesh do not have functional websites either. They could not be located through any internet browser. The website of the SIC of Nagaland was functional until recently. However, it has become inactive during the lock-down period.
(
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”.)
The processes and decisions of the information commissioners are a farce. And they are surviving only because of the even more gross failure of our judiciary. Other wise, the ICs are liable to be prosecuted under Sec 219 of the IPC and even if the courts are empathetic with the first two or three decisions gone awry, thereafter if they impose the punishment prescribed in the Act all the ICs would spent the rest of their lives behind bars.
When, in 2017 there was a move,by the DoPT, to promulgate new rules for implementing the RTI Act, it was again seen as parroting what the CIC wanted, to thrust their whims and fancies on citizens. I had responded to the DoPT (see my blog at http://raviforjustice.blogspot.com/2017/04/rti-rules-2017-feedback.html) when they perfunctorily sought suggestions from the public.
To make it simpler I had also provided a complete set of RTI Rules (see my blog at http://raviforjustice.blogspot.com/2017/04/rti-rules-2017redrafted-by-rti-activist.html).
For those who are looking for what all was wrong in the draft Rules provided by DoPT, these are given in my blog at http://raviforjustice.blogspot.com/2017/04/draft-rti-rules-2017-critical-analysis.html.
Extract of the Rules, suggested by me in the context of the functions of the ICs, are given below.
8. Processing of Complaint/2nd appeal at the Central Information Commission.
(a) An applicant may file a complaint, for any of the reasons given in sec 18 (1) of the Act or an appeal under Sec 19(3), if he is not satisfied with the decision of the FAA, for whatever reasons, including delay in deciding the appeal, to the Chief Information Commissioner, Central Information Commission.
(b) The complaint may be filed within 90 days of the events, listed at sec 18(1) of the Act, happening.
(c) The 2nd appeal may be filed within 90 days of receipt of the decision of the FAA or on non receipt of the decision even after the expiry of 30 days of submission of the 1st appeal.
(d) The complaint/2nd appeal will be accompanied by copies of the application, reply/replies from the CPIO(s), 1st appeal(s) and the reply/replies from the FAA(s), as applicable.
(e) On receipt of the complaint/appeal along with the documents mentioned in para 8(d) the recipient will process it as mentioned in para 5 till it is transferred to the concerned IC who is required to decide on it.
(f) The IC will after going through the complaint/ 2nd appeal and the documents submitted with it, will decide on the answers for the following questions, as applicable, for each public authority involved:
(i) Had all disclosable information sought and held with the respective public authorities been disclosed within the specified period?
(ii) In case of information sought but not held with the public authority had Sec 6(3) of the Act been complied with, including communication of the matter of transfer to the applicant?
(iii) Who are the CPIOs who have defaulted and what are the their defaults?
(iv) Who are the FAAs who have decided the 1st appeal and was there any deficiency on their part?
(g) After having decided that specific CPIOs have defaulted and penalty needs to be imposed on them, the IC will give them an opportunity to being heard by seeking an affidavit from the defaulting CPIO(s) , duly countersigned by the FAA, clarifying the deficiencies listed and reasons why the penalty should not be imposed. The copy of this notice providing the opportunity to being heard to the CPIO should also be provided to the appellant for his information and records.
(h) On receipt of these affidavits, if the IC finds any merit in any of the reasons given for not penalising, he shall provide a copy of the affidavit to the appellant for his arguments to be submitted within 30 days of receipt of the copy of the affidavit(s). Only after receipt of these arguments should he take a final decision in the appeal. The decision should clearly bring out the reasons, especially if no penalty is imposed. Direction to the superior authorities to take administrative action against defaulting FAAs should also be part of the decision.
(i) The decision should necessarily include a direction to the CPIO to provide to the commission the information/copies of documents, duly attested, denied to the applicant till then. This information/copies of documents shall be provided to the appellant/complainant.
(j) Apart from the penalty imposed under sec 20 of the Act, the IC should also recover the cost of documents provided free of cost to the appellant and the compensation to be paid to the appellant, as per sec 19(8)(b), for the time, effort and cost in pursuing the appeals.
(k) If the complete information had been provided before submission of the 2nd appeal the CPIO should compensate the appellant to the tune of Rs 5000/- and if it is provided only after the 2nd appeal the FAA should also pay a compensation of Rs 5000/- to the appellant.
(l) No complaint or appeal should be returned unless the material documents that are required for deciding them have not been provided by the complainant/appellant.
(m) The final decision in all complaints and 2nd appeals should published on the web site of the commission within 24 hours. This information along with the URL of the decision should be communicated to the complainant/appellant through SMS/ email in cases where the complainant/appellant has provided his mobile number and or e mail id. If such information has not been provided by the complainant/appellant copy of the decision will be dispatched to him within 24 hours.
(n) Onus of proving that it has been communicated to the complainant/appellant will be that of the information commissioner.
In Kerala, the government orders are 50 percent of the employees to work on alternate days and the rest 50 pc on the intervening days. Hence the KSIC is violating this order blatantly. Again not unexpected.