RTI ARTICLE

SANJOG MAHESHWARI

RIGHT TO INFORMATION ACT-2005-WHY IT FAILS TO DELIVER?

-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. 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. 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 the fact 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. An informed citizenry and transparency of information are sin-qua-non for democratic functioning of government. It was also expected that proper implementation of such provisions in law could control corruption to some extent by holding Governments and their functionaries accountable to the public. The Parliament, therefore, enacted Right to Information Act-2005, which received the assent of the President of India on 15^th June,2005 and came into force with effect from 12^th October 2005- ( its earlier version- Freedom of Information Act-2002 having proved ineffective was repealed)The new law has been invested with some empowering provisions for the people, aimed at introducing elements of transparency and
accountability in administration and to contain, if not completely eliminate, corruption. However, the corruption-ridden bureaucracy had different ideas. Unnerved by the very first flush of Applications under the RTI law, it decided to make quite a few moves to exploit several loopholes in the law and blunt its effectiveness. First, they 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 outcry against the proposed amendment. 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 thought all was over.
However, the euphoria died soon. How wrong we were in forgetting that we live in a society where more the things change, more they remain the same. Came on the heels the dubious “Central Information Commission (Management) Regulations, 2007- made by the Chief Information Commissioner on 13-06-2007 and enforced post-haste by him after a week i.e. from 21-06-2007- which is proving its un-doing. Ostensibly brought about “for better internal management of the affairs of the Central Information Commission so as to enable it to function effectively”,
it actually puts the RTI Act-2005 way beyond the reach of a common man by rendering the process of seeking information under the Act an exorbitantly expensive, unduly complicated, complex, cumbersome,torturous and lengthy affair. To cap it all, the clever bureaucracy is so skilled in the art of dodging and has so many tricks up its
dirty sleeves in giving the slip to inconvenient queries and disowning responsibility that it easily gets away without supplying the information/ documents it wants to conceal or at best by supplying incomplete and irrelevant information and loading the information-seeker with all the rubbish he does not want that in 90 out of hundred cases one has to file Complaint or 2^nd Appeal to the Central Information Commission and/ or 2^nd Appellate Authority- the apex body under u/s 18 or 19 of the Act.
While what was required is: to address to the crying need of the day i.e. to force the officialdom to act more responsibly and also standardize the fees and procedure structure- which differs from State to State- and make it identical throughout the country, plug the multiple loopholes in the Act which render it ineffective, the Regulations, 2007 go on to prescribe a very costly, complex and cumbersome procedure for filing the Second Appeal or Complaint with the apex body i.e. the CIC. Even at this stage the art of dodging in which the bureaucracy is past-master comes handy to them. 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 19-0707). 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 available with 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 2^nd 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 2^nd Appellate Authority- the C.I.C in their recent Decsion No. CIC/AT/A/2008/00247 dt. 17^th 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? 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 1^st Appeal to the NISCAIR’S First Appellate Authority. 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. Recently, a peeved 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. 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 a escape route to ride over an inconvenient situation whereas actions and remarks of the poor information-seeker are considered an affront to the authorities that be. 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 1^st 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.
- SANJOG MAHESHWARI