A report from several civil society actors has found that the Right to Information Act is not functioning as it should be.
New Delhi: Two organisations working in the field of right to information assessment and advocacy and a publishing house have come together to bring out ‘Tilting the Balance of Power: Adjudicating the RTI Act for the Oppressed and the Marginalised’, which is a detailed analysis of the orders of the Supreme Court, various high courts and information commissions, pertaining to the RTI Act in India, in terms of their implication on the quality of governance.
The analysis by Research, Assessment and Analysis Group (RaaG), Satark Nagrik Sangathan (SNS) and Rajpal and Sons Publications is, according to its authors, aimed at improving “the quality of governance in India, especially in terms of its impact on the oppressed and marginalised sections of society.”
Need to make RTI Act more effective
The report, they said, specifically looks at how the RTI Act can be made more effective for improving governance, especially by bringing about systemic changes through better adjudication. Towards that end, the report has analysed orders and directions of the Supreme Court, along with recent orders of the various high courts, pertaining to the RTI Act.
This apart, a sample of orders of information commissions have also been analysed in the “hope that the analysis and critique presented here provokes a public debate on the manner in which the RTI Act is being understood and interpreted by the adjudicators. Underlying this hope is the belief that in India there is inadequate informed public feedback to adjudicators, on interpreting and applying legal provisions critical to the upholding of fundamental public interest.”
Higher judiciary denied access to public debate
The analysis points out the adjudicators, especially the higher judiciary, are denied access to an informed public debate. “This is especially critical as the higher judiciary in India not only adjudicate on matters of law, on which they undoubtedly have great expertise, but on many other matters on which they could well benefit from the views of the public and of experts among the public,” it said.
Another objective of the report, the authors said, was to reach out to information commissioners to alert them on the common errors that have crept into many of their orders and raise issues that need further detailed consideration. “The findings of this report suggest that trends set by earlier commissioners often get emulated by new commissioners in the same commission. For example, the original commissioners in many of the information commissions, from the time they were set up, were hesitant to impose penalties and this tendency has been emulated by most, if not all, of their successors,” it pointed out.
Similarly, in the Central Information Commission, the report said a trend had started of remanding complaints to first appellate authorities and this seems to have caught on, so much so that in the sample analysed for this study almost 80% of the complaints received were so remanded.
When orders ignore relevant provisions of law
In the chapter on ‘overarching issues’, the report has noted that “some of the judicial orders, both of the Supreme Court and of various high courts, and many of the orders of information commissions, seem to either ignore the relevant provisions of the law or give interpretations that are not easily understood, often unexplained, and sometimes seem wrong.”
The report also deals at length with “inadequately reasoned orders”, “orders lacking essential facts” and “orders going beyond the law”.
Many information commission orders devoid of reasoning
It also observed that “unfortunately, an overwhelming proportion of information commission orders analysed as part of the study were so devoid of reasoning and factual details that it was often impossible to determine which sections of the law they were invoking to deny information or condone the PIO’s decision, action, or inaction. One consequence of this was that while analysing how courts and commissions interpreted different sections of the RTI Act, it often became difficult to classify and analyse IC orders.”
The report has also pointed out how information commissions were functioning without commissioners, the backlog of cases, which stood at over 1.87 lakh cases on December 31, 2015 and lack of transparency in the functioning of many of them. Also, it said, the pendency was worryingly on a rise in several states like Assam, Odisha and Punjab.
In view of the various findings, the report has given strong indications that the adjudicatory system around the RTI Act needs urgent corrective measures.
Expectations from courts, the government and society
Bearing in mind the various shortcomings, it has also suggested remedial action at different levels.
It has called for a consideration by judges of the Supreme Court and the various high courts of the issues and arguments raised pertaining to judicial orders, and the interpretation of the law noting that hopefully these would be found to be of use when they would next hear a matter concerning the RTI Act.
Similarly, the report has called for consideration by information commissioners, with the hope that they would be willing to participate in public debates relating to the relevant issues and to introspect on their functioning and on their interpretation of the law.
The analysis has also demanded a consideration of the relevant recommendations by governments so that they could consider bringing about the recommended changes in administrative processes and practices and, where required, in the law, by moving parliament.
It has urged RTI activists, people’s movements, NGOs and institutions outside the government to also act in order to improve governance by making the RTI Act more effective. For this, it said, they would have to individually and collectively play an active role in pushing the government and the adjudicatory authorities to accept and implement the recommendations and take other remedial steps.
The authors have also asked the media to play a proactive role in ensuring that “lackadaisical and inept implementation, and ineffective adjudication, do not slowly strangle the RTI Act.” Towards this end, they have demanded that the media run campaigns on various issues.
Finally, the analysis has sought to rope in progressive, pro-transparency lawyers to “help move the various high courts and the Supreme Court to get orders that could definitively interpret some of the sections of the law that are currently being misinterpreted, and to reiterate those provisions of the law that are being widely ignored and violated.”