While a large proportion of the RTI (Right to Information) applicants’ second appeals and complaints disposed by information commissioners (ICs) are because of wrongful denial or delay in providing information by the public authorities, the trend of second appeals being returned to the applicants by the ICs without passing orders has become a cause of serious concern and gross injustice to the citizens.
Although the RTI Act has no specific rule of the format in which the second appeals are to be written, over the years, the Central government and some state governments have made their own formats and lists of documents to be attached along with the second appeal application. Further, some of these rules, like those framed by the Central government in 2012, empower the IC to return the appeal/complaint, if found deficient. The `returning’ surge began in full swing from 2015 and continues to do so.
As per the assessment “Report Card of Information Commissions in India, 2019-20”, which has analysed performances of all 29 information commissions in the country for 2019-20, ICs of Gujarat and Jharkhand have the dubious distinction of returning maximum second appeals without passing orders. The report has been prepared by two non-government organisation (NGOs), namely, Satark Nagrik Sangathan and the Centre for Equity Studies.
Between April 2019 and July 2020, the state chief information commissioner (SCIC) and the ICs of Gujarat and Jharkhand returned a large number of appeals and complaints without passing any orders. The SCIC returned a whopping 15,051 appeals and complaints, while it registered 27,521 during the period under review. The IC of Jharkhand returned 4,574 appeals and complaints, while it registered 5,799, and the IC of Gujarat returned 4,174 cases without passing any orders, while it registered 8,265 appeals and complaints.
According to Anjali Bharadwaj and Amrita Johri, coordinators of this assessment report, the trend of a large number of cases being returned by the CIC began in 2015, when there was a sudden surge in the number of cases being returned. They state, “Several RTI activists wrote to the then chief information commissioner of the CIC urging that the commission proactively and publicly disclose information on the number of appeals and complaints being returned and the reasons for returning them. All deficiency memos, which record the reason for returning an appeals and complaints, were then publicly disclosed on-line. Subsequently, however, these memos have again been made inaccessible to the public and can be accessed only if the appeals and complaints number is known.’’
According to the report, the CIC, on its website, shows that nearly 35% of the appeals and complaints received were returned by the Commission and over 75% of the cases which were returned were not re-submitted to the CIC.
As per the study, about 40 to 60 lakh (4 to 6 million) applications were filed in 2011-12 under the RTI Act. States Ms Bharadwaj, “Taking this as the annual estimate of number of RTI applications filed, the data on the number of appeals and complaints registered annually suggests that ICs are petitioned in only about 5% of the total RTI applications filed. However, this does not mean that in 95% of the cases people got access to the information they sought. The RaaG & CES 2014 assessment estimated that only about 45% of RTI applications were successful in terms of obtaining the information requested. Therefore, of the remaining 55%, less than 10% actually end up filing a second appeal or complaint - perhaps because many of those who file RTI applications do not have the resources or skills needed to approach ICs and therefore, despite not receiving the information sought, are unable to approach the commissions.’’
The report observes that, “the practice being followed by the CIC and some SICs, of returning a very large number of appeals and complaints without passing any orders creates an apprehension that this is perhaps a way of frustrating information seekers in a bid to reduce backlogs in ICs. Many people, especially the poor and marginalised, would feel discouraged and often give up if their appeal/complaint is returned.’’
The report further comments that, “unlike the courts, where people take the assistance of lawyers, most information seekers navigate the process of filing RTI applications and following up on their own. Therefore, it is important that the process of filing an appeals and complaints to the commission be people-friendly. Procedural deficiencies like the absence of an index or page numbering must not be grounds for returning appeals and complaints under the RTI Rules. Commissions must facilitate and assist people in the process of registering their appeals and complaints, rather than summarily returning them’’.
As per the report, the solution lies in the following actions:
* Procedures should be people-friendly: Appropriate governments must examine the rules made by them under the RTI Act for filing appeals and complaints with ICs and ensure that the procedures prescribed therein are in conformity with the law and are people-friendly.
* There should no return for flimsy reasons: RTI rules should not allow for returning of appeals/complaints due to minor or procedural defects. They must place an obligation on ICs to assist people in filing appeals and complaints, rather than summarily returning them due to a deficiency.
* Display filing procedure on the website: The websites of ICs and public authorities must prominently display information about the procedure for filing an appeal/complaint. Commissions should adopt mechanisms to assist and facilitate people in the process of registering their appeals/complaints. All ICs must provide a helpline and facilitation desk where people can seek advice and assistance. In cases where a substantive deficiency is noticed, for instance if a second appeal has been filed without exhausting the first appeal process or where an appeal/complaint which should lie with the CIC has been filed to the SIC or vice versa, the commission should, to the extent possible, facilitate remedial action by forwarding the appeal/complaint to the appropriate authority, with a copy to the appellant.
Returning an appeal/complaint should be a last resort adopted by ICs. Such an approach would be in keeping with the RTI law, which explicitly recognizes that many people in the country would need assistance in exercising their right to information.
* Reason for return should be made public: Further, wherever appeals and complaints are returned, the deficiency memo which enunciates the reason for the return must be made public, in addition to being communicated to the appellant/complainant. This is, in any case, a requirement under Section 4 of the RTI Act and would enable public scrutiny of the process.
* Norms for disposing of number of cases: The CIC has set an annual norm for itself of 3,200 cases per commissioner, per year. Information commissioners in all ICs must agree upon, and adopt, norms on the number of cases a commissioner must deal with every year. This is especially important in commissions which receive a large number of appeals and complaints. These norms must be made public and the number of cases disposed of by each commissioner annually must also be proactively disclosed by the ICs.
* Consensus amongst information commissioners: There is a concomitant need to develop a consensus among information commissioners across the country, on norms for budgets and staffing patterns of ICs, including legal and technical experts, based on the number of cases to be dealt with by each commissioner and other relevant state specific issues.
* Function of ICs should be more efficient: There needs to be a review of the structure and processes of ICs to ensure that they function more efficiently. Perhaps learning from international experience, in order to reduce pendency and waiting time, the Indian ICs need to be infused with a trained cadre of officers to facilitate the processing of appeals and complaints.
(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”