SANJOG MAHESHWARI
C1-A-42B M.I.G. FLATS,
JANAKPURI,
NEW DELHI 110058
RIGHT TO INFORMATION ACT-2005 DOES IT EMPOWER PEOPLE?
-SANJOG MAHESHWARI.
While Article 19 (1)(a) of the Constitution guarantees freedom of speech and expression to every citizen as his Fundamental Right, the fact remains that the people cannot effectively exercise this right unless they know. As early as in 1976, the Apex Court made an observation to this effect in the case of Raj Narain versus State of U.P. However, it took nearly three decades for successive governments at Centre to acknowledge that the people who pay taxes for running the government have a right to correct and complete information about how it is functioning and how their hard-earned money is being spent. In a democratic polity, it is the people who are the masters and as such must be in the know of various issues involved in the matter of governance and administration. In recognition of this fact, the Parliament enacted Right to Information Act-2005, which received the assent of the President of India on 15th June,2005 and came into force with effect from 12th October 2005- ( its earlier version- Freedom of Information Act-2002 having proved ineffective was soon repealed)
The new law has been invested with some important empowering provisions for the people aimed at introducing elements of transparency and accountability in administration to contain, if not completely eliminate, corruption. The all too gullible people of India soon started dreaming that now they will breathe in a corruption-free environment. However, the corrupt bureaucracy in the very first flush of Applications under the RTI law was so rattled that in their move to blunt its effectiveness, persuaded the cabinet committee to approve an amendment to exempt file notings and cabinet papers from disclosure under the Act. The proposed Amendment to the Act brought about within less than a year of the main Act coming in the force, was opposed tooth and nail by almost every right minded citizen. On the expected lines it was vociferously advocated and espoused by the politico-bureaucratic entrenched vested interests and the foot-dragging officialdom within the government. The malafide move was, however, foiled; thanks to the huge public ire and outcry against it. Thus the Act survived the first blow “to take life out of it” as aptly observed by Sh.O.P. Kejariwal, Central Information Commissioner and the common man sighed in relief and celebrated the event.
However, the euphoria died too soon. How wrong we were in forgetting that we live in a society where more the things change, more they remain the same. Almost two decades back a similar piece of legislation was enacted under the title: “Consumer Protection Act-1986” to protect the interests of consumers. Its enactment was also greeted with the similar enthusiasm. “Now consumer is king,” they chanted joyously. Twenty years and three amending Acts later, the statute in its practical application is now so riddled with complexities and technicalities that as of now there is no protection under the Act unless a consumer is Somebody. The Amendments contain nothing which is consumer-friendly. In fact some of their provisions are patently consumer-hostile. The RTI Act seems fated the same way. Because, if it is not the depraved amendment then it is the dubious “Central Information Commission (Management) Regulations, 2007 passed on 13th June 2007 and post haste within a week came into force with effect from 21-06-2007, that is proving its un-doing. Ostensibly brought about for “better internal management of the Commission and to facilitate its functioning” it in fact puts the remedies available under the Act way beyond the reach of an average citizen rendering the process of seeking information under it an exorbitantly expensive, unduly complicated, complex, torturous and lengthy affair which even a seasoned lawyer will find hard to follow. How the government proposes to meet the ends of justice by rendering a simple matter of seeking correct and complete information on any issue from the concerned government department or agency such a costly, cumbersome, time and energy consuming affair, is not clear? Is the government so oblivious of the fact that by encouraging the people to frequently agitate the Act for getting information for their use, it directly sets in motion the process of cleansing the rot since set in almost every government department and thus helping itself to eradicate corruption and erasing the age-old mind-set that breeds lethargy and devil-may-care attitude in its foot-dragging officials without even paying for it by enlisting the free of cost services of so many information-seekers that would be akin to a process of continuous auditing of the departmental records which as of now are in great mess and unmanageable shambles. And that too free of cost! So please make the process and procedure of seeking information under the Act as simple as possible, hand out deterrent penalty and punishment to the culprits and encourage rather than discourage the people to frequently seek and make use of the information so that the chaotic government records are perpetually kept in order, useable condition and good shape. And indeed why at all anybody in his right frame of mind should spend his hard earned money for seeking “ frivolous and inconsequential information” at a huge cost , unnecessarily taxing his patience and straining his slender resources in tackling with the mighty Government officials and antagonizing them in the process? It is the practice of providing the “frivolous and inconsequential information” by the Public Authorities in response to a valid Application under the RTI Act that should be the matter of immediate concern of the CIC and not the other way round.
With the cost thus increased manifold and process and procedure made so much complex and cumbersome now with the passing of the Regulations even the most needy would shy away from agitating the law under the Act and would opt for the hassle-free option of palm-greasing to get the desired results expeditiously. So for God’s sake please scrap the Regulations 2007 immediately. Instead the government should frame rules to make the procedure and fee structure uniform throughout the country. After all the Act addresses to an extremely simple matter – to enable a seeker to get correct and complete information on some matter. And the Commission has a still simpler task to perform- ensuring that the information so provided is in fact correct and complete. Why then make the process so complex, complicated, cumbersome and costly so as to scare away the people from seeking information which they need particularly when the process automatically ensures cleansing of the Augean stable that the records rooms of the government departments have become? Very simple rules of procedure should be put in place for filing Applications, 1st and 2nd Appeals/ Complaints more so because the clever bureaucracy is so skilled in the art of dodging and has so many tricks up its sleeve in giving the slip to inconvenient queries and at the same time disowning responsibility that they can easily get away without supplying the information they want to conceal or by supplying incomplete information and load the poor information seeker with information that he would not want. The malady has assumed such gigantic proportions that in 90 out of hundred cases one has to file Complaint or 2nd Appeal to the Central Information Commission and 2nd Appellate Authority, the apex body under the Act u/s 18 or 19 of it. And that involves an extremely complex and cumbersome process and procedure which makes a deep hole in one’s slender pocket. At that stage while your cost and expenses mount, the culprit would, in most of the cases, escape punishment with consummate dexterity with determination to take on you for the audacity of your asking for the information. The following few cases out of so many others are cited as proof, if at all a proof of such a widespread phenomenon and very well known fact where the complicity of the Information Commissioners had let down a genuine Information-Seeker in his quest for information and documents which he needed most urgently and provided escape route to the foot-dragging officialdom which, otherwise, ought to have been severely penalized for its willful dereliction of duty and shunning responsibility with a devil-may-care attitude: For example, in a very simple case where an applicant had requested for the information etc. regarding the action taken on and the status of a few representations made by him to a public authority, the Central Information Commission allowed the public authority to get off without supplying any of the requested information. In their order, they observed, “The information solicited herein is about policy matters for which no definite answer could have been given…………..” They, inter-alia, went on to say, “Yet the respondents are agreeable to allow the appellant to inspect the files / records related to his RTI request…………” (Case No. CIC/AT/A/2007/00574 dated 19-07-07). What files/records to inspect when the Public Authority/ custodian is unable to locate them in their office? A single stroke of pen scrubbed down all efforts made by the appellant and at the end of the day (it was more than a year!) he was poorer by a few hundred rupees and as ignorant about the status of his representations as before filing the Application for Information, first appeal and second appeal and few other applications in between and paying fees all the way for the documents which should have been but were not made available by the custodian. In an identical case, on the request for information made to the CPIO NCDRC on 17/18-2-08 followed by the First Appeal to the First Appellate Authority on 31-03-08 in respect of a representation dated 05-12-07, the CPIO of the National Consumer Disputes Redressal Commission vide his letter No. A-2001/NCDRC/2008 dated 22-04-08, inter-alia, informs that “Section 4(1) (d) does not apply to a judicial proceedings conducted by a Court or Tribunal as it refers only to administrative and quasi judicial decisions of public authorities”. It is conveniently ignored that the appellant is simply interested in knowing the status of his representation dated 05-12-07: the date of its receipt in the Commission’s Registry, daily progress made on it with copies of the related file-notings etc. - a purely administrative matter which has nothing to do with the nitty-gritty of judicial proceedings. In yet another case, Ghaziabad Development Authority, gets off-the hook by supplying grossly incomplete and mostly irrelevant information even after more than a year of the application under the RTI Act duly followed by the first and second appeals at the appropriate levels.(U.P. State Information Commission case No. S-245). In another case a Public Authority fails to provide certified copies of requested documents such as the Service Book, Leave A/c., the Pensioner’s Pension Payment Order etc. which are classified as “PERMANENT RECORDS” UNDER GOVERNMENT RULES & REGULATIONS on the pleas that they are “ not readily traceable, are misplaced somewhere” and “efforts are still being made to locate them” and on 2nd Appeal made to the CIC, the Information Commissioner “authorizes the Appellant to inspect the records”. It is not clear that when the requested records are not at all “readily traceable at the end of the concerned Public Authority and “the efforts are still being made by them to locate the requested records” (even after more than a year!) according to their own admission “and copies of the same will be made available to the Applicant as soon as they are located” as is being asserted by them since long, what is the big idea in sending the Appellant on a wild chase of the black cat in a dark room where it apparently does not exist? In the circumstances, what useful purpose the appellant’s visit to the office of the Public Authority, as (graciously?) authorized by the 2nd Appellate Authority- the C.I.C in their Decision No. CIC/AT/A/2008/00247 dt. 17th July, 08, is going to serve, is not clear? Should they have not instead ordered disciplinary action against those responsible for the gross mismanagement of vital and important records which are mandated to be preserved permanently under the rules? In an identical case No. CIC/AT A/2007/01177, the Complainant- Information Seeker has submitted an Application dated 17-10-2008 to the Chief Information Commissioner Mr. Wajahat Habibullah seeking Review of the CIC’s Order dated 19-02-08, inter-alia, on the ground that the said order is ultra-virus to the provisions of the Right to Information Act-2005 as it would tantamount to refusal to provide the requested information and documents which are in the custody of the Public Authority on flimsy alibi. The receipt of the above Application for Review has not yet acknowledged though sent under the Speed Post on the same date. Also in another case, C.P.I.O of NISCAIR (C.S.I.R) pleads ignorance of both the documents-two medical reimbursement bills sent to them under Speed Post on separate dates from separate Post Offices even when the Proof of their delivery to the addressee got conclusively confirmed in writing by the competent postal authority and a certificate issued by them to that effect was submitted long back to the Public Authority who as of now is maintaining stoic silence over the matter and not even acknowledging the Appellant’s repeated reminders and the 1st Appeal to the NISCAIR’S First Appellate Authority. As there has been no response even to the 1st Appeal in the matter filed on 1st August 2008 under section 19 (1), the Information-seeker has since filed the Complaint dated 28-09-08 before the Central Information Commission u/s 18 of the Act and sent the same under Speed Post on 29-09-08. The receipt of the same is yet to be acknowledged by the CIC Registry. In yet another complaint case No. CIC/WB/A/2007/00627, the CIC vide order dated 03-05-07, remanded the Appellants appeal to the 1st Appellate Authority but has not so far passed any orders on the Complainant’s Complaint 09-09-2008 submitted to it against the 1st Appellate Authority order No.38/27/07-P&PW (A) dated 26/28 August 2008 nor yet acknowledged the receipt of the Complainant’s above cited Complaint dated 09-09-2008 sent on the same date under Speed Post. These examples are merely illustrative and by no means exhaustive.
The reasons for the miscarriage of justice under the Act, which, of late, has been recurring with alarming frequency, are not far to seek. Not so long ago, a peeved Mr. L..K. Advani, Leader of Opposition in the Lok Sabha and a member of the Appointment Committee of the Commission, irked by the fact that the Commission has become an all Babu-affair, declined to attend the CIC expansion meet called by its Chairperson, the Prime Minister of India.(Thanks to his instance and initiative, after the lapse of about three years, one or two ‘outside-officialdom-appointments’ in the CIC cadre , could have been made in the teeth of bureaucratic resistance, and they are showing encouraging results.) But that’s too little too late. Much more needs to be done to make the Law more user-friendly. If not for any other reason then to contain to some extent the mounting corruption that has since assumed gigantic proportions sufficient to push India in the obnoxious company of five most corrupt countries of the world.
While section 12 (5) of the Act provides a vast field consisting of varied areas of public activity ranging from law, science and technology, social service, management, journalism, mass media or administration and governance to chose persons of eminence from them for the posts of the Chief Information Commissioner and Information Commissioners, it is not clear why only the babus are allowed to grace these exalted offices? No wonder, they have soft-corner for the bureaucratic fraternity they come from and their Decisions are heavily loaded in favour of the Public Authorities providing the guilty many an escape routes to ride over an inconvenient situation whereas actions and remarks of the poor information-seeker are considered an affront to the authorities that be. Thus, instead of getting justice, the common Information seekers, generally end up inviting wrath and fury of those in the authority who react with a fierce vengeance. Thank God for small mercies that at least those who are Somebody, N.G.Os and men with money and power, do get information at the first stage itself and are spared the trouble of going in for 1st & 2nd Appeals/Complaints etc. The people who do not have deep pockets, clout and influence at the right places have little chance to get justice even at the CIC’s level as would be evident from the few of the many such cases cited above. The myth of “Empowerment of Common Man” needs to be exploded. For a common man, ours is a very difficult country to get justice.
Even after more than 60 years of independence, the colonial mind-set reigns supreme and the bureaucracy finds it difficult to shed.
Secondly, in most of the cases particularly in the autonomous bodies, the hierarchical built-up is such in which neither the Public Information Officer nor the 1st Appellate Authority wields the disciplinary powers under the Conduct Rules to initiate disciplinary action against the errant officials by invoking C.C.S (C.C.A) Rules for not providing the information and documents under their custody. When they can get away with any or every thing they do or do not do, why should they bother?
Thirdly, the Act does not provide for any relief in the form of compensation for the wrongs suffered by an aggrieved information seeker at the hands of arrogant Public Authority who have little reason to be wary of it.
It is high time the government sees the writing on the wall so that palm-greasing for getting the work done ceases to be a tempting option for the common man.
SANJOG MAHESHWARI.
C1-A-42 B M.I.G. FLATS,
JANAKPURI,
NEW DELHI-110058.
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