New Delhi: Despite the Centre not filling up the four vacancies in the Central Information Commission (CIC) over the last two years, the serving seven information commissioners have done well to keep the pendency levels within check by disposing of more than the average cases expected of them.
However, four of them – by not imposing any penalties on defiant public information officers – have sent a message that “violations of the law will not invite any adverse consequences”, a report by the Satark Nagrik Sangathan (SNS) and the Centre for Equity Studies (CES) has revealed.
Quality of orders
Basing its preliminary findings on 549 orders of the CIC passed between January 1 and March 31 which were randomly sampled and analysed, the report on the performance of the commission noted that when it came to the quality of orders – while the Supreme Court has cautioned against the tendency of adjudicators to give cryptic, unreasoned orders – “7% of the orders analysed contained deficiencies in terms of not recording critical facts like information sought by the appellant/complainant.”
However, in comparative terms, the report said there had been a “significant improvement” as prior assessments from 2013 to 2016 had found that 63% of orders did not describe the information sought. Also, that assessments had highlighted that many of the orders comprised just 2-3 lines, recording only the decision of the commission without any reference to the background or the relevant facts of the case.
‘Information seekers have a right to know the decision as also its basis’
“While the performance of the CIC has greatly improved in terms of recording critical facts like dates, details of information sought etc., in several cases where information was denied, it was found that the orders were not adequately reasoned and could be said to be non-speaking orders,” the study said, adding that “the phenomenon of ICs not passing speaking orders is problematic for several reasons.”
It elaborated that information seekers have a right to know not just the decision, but also the basis of the decision. In fact, even the RTI Act makes it obligatory for a public authority under section 4(1)(d) of the Act to proactively “provide reasons for its administrative or quasi-judicial decisions to affected persons”.
On average, CIC takes 319 days to decide a case
The study further found that the CIC takes 319 days to hear and give an order on an appeal or complaint from the date that it was filed before the commission. However, the time taken for disposal ranged from 36 to 862 days.
The report said the huge backlog in the disposal of appeals and complaints was “one of the most serious problems being faced by the transparency regime in India”. Furthermore, it said, “this is especially problematic for marginalised sections of the Indian population who use the RTI law to try and access information about their basic entitlements like subsidised rations, old age pensions, medical facilities in hospitals and minimum wages.”
The analysis also noted that long waits in the disposal of cases often resulted in public information officers (PIOs) – who had violated the Act – not being penalised as they ended up retiring before the case could be decided.
Non-appointment of new commissioners also adding to pendency
The study also noted that the huge pendency and long waiting time are a result of the non-appointment of information commissioners. “Even though, as of October 2018, nearly 25,000 appeals/complaints are pending in the CIC, since January 1, 2018 the CIC has been functioning with only 7 commissioners. Four more commissioners, including the Chief Information Commissioner of the CIC, are set to retire by December 1, 2018, which will reduce the strength of the commission to just three commissioners,” it said.
The study, however, lauded the serving commissioners for largely meeting the norm stipulated by the commission in March 2011 of every single bench striving to dispose of 3,200 appeals or complaints in a year. It noted that in the quarter in which the study was undertaken, information commissioner Yashovardhan Azad had disposed the most cases at 1,561 followed by chief information commissioner R.K. Mathur at 1,222; Sudhir Bhargava at 994 and M. Sridhar Acharyulu at 952. Apart from this, Bimal Julka (at 778 cases) and Amitava Bhattacharya (at 756 cases) were very close to the 800 mark whereas Divya Prakash Sinha had disposed of 532.
The study said while the RTI Act empowers the information commissioners to impose penalties of up to Rs 25,000 on erring PIOs for violations of the Act and Section 20 clearly defines the violations of the law for which PIOs must be penalised, penalty was actually imposed on only a very small fraction of the cases in which it was imposable.
“Across the sample, an average of 56% orders recorded one or more violations listed in Section 20 of the RTI Act, based on which the IC should have triggered the process of penalty imposition,” the study said, adding that show cause notices were issued to PIOs in only 28% of the cases, and in only 72% of the cases in which these notices were issued was there a subsequent order recording the final directions of the IC in terms of whether or not penalty was imposed. In the end, penalty was imposed in only 4% of the cases in which it was potentially imposable.
The study also revealed that CIC chief Mathur and information commissioners Bhargava, Julka and Sinha had not imposed any penalty during the period while Sinha had also not issued any show cause notice.
‘Non-imposition of penalties promotes a culture of impunity’
“The non-imposition of penalty,” the study cautioned, “has many serious implications as it sends a message that violations of the law will not invite any adverse consequences. This destroys the basic framework of incentives and disincentives built into the RTI law and promotes a culture of impunity.” Also, it noted that not imposing a penalty where it was imposable had caused a potential loss of more than Rs 55.7 lakh to the exchequer. It added that nationally, an estimated loss of Rs 203 crores is being caused annually by ICs not imposing penalties.
“But even more important than the revenue lost is the loss of deterrence value that the threat of penalty was supposed to have provided. This has resulted in PIOs denying information, delaying information, not responding at all, or violating other provisions of the RTI Act with impunity, without fear of consequences,” the study noted.
The assessment of CIC’s performance also revealed that 91% of the appeals or complaints were filed by men and 9% by women. It also noted that 44% of RTI applications sought information which should have been made public proactively without anyone applying for it.