The central government continues to be reluctant when it comes to the timely appointment of commissioners to the Central Information Commission despite explicit directions from the Supreme Court. Similar delays in filling up vacancies have also resulted in the mounting of pending cases in information commissions across various states.
The ‘Report Card on the Performance of Information Commissions in India, 2018-19’ has revealed that this is one of the primary reasons for the mounting backlog of cases at the commissions.
Report analysed all commissions by filing RTIs
The report, prepared by the Satark Nagrik Sangathan (SNS) and Centre for Equity Studies (CES), covers all the 29 information commissions set up under the RTI Act, 2005. A total of 129 applications were filed under the Act for the report. The websites of all the 29 ICs were also analysed to see if they were providing relevant and updated information.
The report stated that between 40 and 60 lakh RTI applications are filed each year and the law is used across the country. The law assists people in holding local governments and functionaries accountable for lapses in the delivery of essential services and helps them secure access to basic rights and entitlements. It is also used to question the highest authorities of the country on their performance, their decisions and their conduct.
Functioning of ICs is a major bottleneck in the effective implementation of RTI
The report said that 14 years after the implementation of the RTI Act, experience in India and national assessments suggest that functioning of the ICs is a major hurdle in the effective implementation of the RTI law. It said that s large backlog of appeals and complaints resulted in inordinate delays in the disposal of cases.
The report said that a primary reason for the backlog was the failure of the central and state governments to promptly appoint commissioners to CIC and SICs.
“Successive assessments of the functioning of information commissions have shown that appointments to commissions are not made in a timely manner, resulting in a large number of vacancies. In February 2019, the Supreme Court, in its judgment on a PIL regarding non-appointment of information commissioners, ruled that the proper functioning of commissions with adequate number of commissioners is vital for effective implementation of the RTI Act.”
The court held that since the law stipulates that information commissions should consist of a chief and upto ten commissioners “as may be deemed necessary”, the number of commissioners required should be determined on the basis of the workload.
The Supreme Court also gave specific directions to ensure the timely appointment of information commissioners, stating that it would be appropriate if the process for filling up of a vacancy is initiated one to two months before the date on which the vacancy is likely to occur, the report noted.
Despite SC intervention, four vacancies still persist in CIC
The report said that despite the SC direction, four vacancies continue to remain unfilled in the CIC since January 1, 2019. As a result, the backlog of appeals has also been steadily rising every month.
The report recalled that, as of January 1, 2018, against a sanctioned strength of eleven commissioners, including the chief, there were just eight commissioners in the CIC. With many more commissioners retiring during the year and no fresh appointments being made, the commission had eight vacant positions on December 1, 2018.
Finally, on the directions of the Supreme Court, posts of four information commissioners in the CIC were filled with effect from January 1, 2019. The post of the chief information commissioner was also filled by appointing one of the existing information commissioners as the chief. But, since then the CIC has been functioning with six information commissioners and the chief information commissioner while four vacancies still exist.
A number of commissions, the report said, were also functioning without a chief information commissioner. Rajasthan has not had a chief information commissioner since December 2018 and Tamil Nadu since May 2019.
Several information commissions are non-functional
The report found that several information commissions were non-functional, or were functioning at a reduced capacity despite large backlogs, as the posts of commissioners and chief information commissioners were vacant.
It said the State Information Commission (SIC) of Andhra Pradesh, which continued to function as the information commission of both Andhra Pradesh and Telangana after the formation of the latter, became defunct in May 2017 when all the serving commissioners retired. It remained completely non-functional for 17 months until October 2018, when, on the directions of the Supreme Court, three information commissioners were appointed. But its chief information commissioner has still not been appointed.
In Tripura, the report said the SIC was functioning with only the chief information commissioner, who retired in April 2019. Since then, no new appointment had been made. As such, the SIC of Tripura had been completely defunct for over six months.
Pending cases mount in states as they operate with less manpower
Among the states, it said, Maharashtra, Karnataka, Uttar Pradesh, Kerala, Telangana, Odisha and West Bengal have all been functioning with less than the sanctioned number information commissioners. The report said that in all these states the number of pending cases had risen as a result.
In Maharashtra, the number of pending cased stood at 46,000 appeals and complaints on March 31, 2019. In Uttar Pradesh the number of pending cases grew from 47,000 on January 1, 2019 to 51,682 by the end of February.
In Kerala, which was functioning with only the chief information commissioner since 2016, after the high court, in August 2017, set aside the appointment of five ICs saying that the selection process was flawed, the number of pending appeals increased to 15,000 by March 2018. Now the commission is functioning with five commissioners, including the chief.
The Telangana SIC was constituted in September 2017 but has been functioning with just two information commissioners due to which the number of pending appeals has risen to 9,000 by March 31, 2019. In Odisha, pending cases stood at 11,500 on the same day and in West Bengal, which was functioning with just two commissioners since mid-2017, the number of pending appeals was over 8,000.
Majority of commissioners continue to be male, bureaucrats
The report said though the RTI Act states that commissioners should be appointed from diverse backgrounds, as many as 58% of the information commissioners on whom information was available were found to be retired government officials.
Likewise, it said that of the 115 chief information commissioners on whom data was obtained, an overwhelming 83% were found to be retired government servants, with 64% being retired Indian Administrative Service officers.
When it came to gender parity, the report found a definite imbalance with only 10% of all information commissioners who were women. When it came to becoming chief information commissioners, the number was even lower at 7%.
An ‘agenda for action’ to deal with delay of justice
The report said that a delay in the disposal of cases remained a major concern. In the state information commissions of Andhra Pradesh and West Bengal, the report said that the waiting time for the disposal of cases was 18 years and 7.4 years on average respectively.
Since the delays were primarily on account of the appointment of fewer commissioners, the report also suggested an “agenda for action”. It suggested, among other things, that an agreement should be reached on the maximum amount of time in which an appeal or complaint should be dealt with. It also said that the strength of commissioners in each commission should be assessed on an annual basis.
CICs, ICs failed to impose adequate penalties
The performance of information commissions, in terms of exercising their powers to ensure proper implementation of the law, has been a cause of great concern to the RTI community. Commissions have been found to be extremely reluctant to impose penalties on erring officials for violations of the law.
It said while the Act empowers information commissions to impose penalties of up to Rs 25,000 on erring Public Information Officers (PIOs) for violations, the commissions have found to be imposing them sparingly.
Between them, 25 Commissions imposed penalties in 2,455 cases from January 1, 2018, to March 31, 2019, and the total amount of penalties was Rs 3.15 crore. Karnataka imposed the maximum amount of penalities at Rs 77 lakh followed by Haryana at 47.8 lakh whereas the SICs of Tamil Nadu, Mizoram, Sikkim and Tripura did not impose any penalty during this period.
Little compensation for loss to information seekers
Similarly, the report stated that the CIC and SICs have been reluctant in awarding compensation to information seekers whenever they feel that the person has suffered any loss or detriment due to any violation of the law.
Between January 2018 and March 2019, only 16 commissions awarded any compensation. Overall, a sum of Rs 30.87 lakh was awarded in compensation in 663 cases, of which a bulk was awarded by Punjab (280 cases and Rs 9.51 lakh), Haryana (205 cases and Rs 7.16 lakh) and the CIC (77 cases and Rs 6.92 lakh).
Bihar SIC website non-functional for over 18 months
Unfortunately, the transparency of the watchdogs itself has not had a shining track record in terms of being accountable to the people of the country.
To assess the commissions, 129 RTI applications were filed. The SICs of Bihar and Uttar Pradesh were found to be the worst-performing – they provided just 21% of the information asked for.
The best performers in this test were Arunachal Pradesh, Assam, Gujarat, Haryana, Himachal Pradesh, Madhya Pradesh, Manipur, Meghalaya, Mizoram, Telangana, Tripura and West Bengal SICs who provided 100% of answers sought.
Likewise, an assessment of the websites of all ICs revealed that the Bihar SIC has been non-functional for nearly 18 months. It also revealed that only 20 information commissions provided public access to orders passed by them since January 2019. Additionally, when it came to publishing annual reports, it was found that 22 information commissions had not published their reports for 2018 and that Punjab had not published any since 2012.
Increasing need to scrutinise after the RTI Amendment Act 2019
Finally, the report noted, that the need to scrutinise the functioning of information commissions is perhaps greater now than ever before, in light of the recent amendments to the RTI law passed by the parliament in July 2019.
Elaborating on the subject, the report said:
“Security of tenure and high status was provided for commissioners under the RTI Act, 2005 to empower them to carry out their functions autonomously.”
However, it said, through the amendments to sections 13, 15 and 27 of the RTI Act, 2005, the central government changed the provision to read that it shall “prescribe through rules, the tenure, salaries, allowances and other terms of service of the chief and other information commissioners of the Central Information Commission and all state information commissions.”
The report said, “this has led to apprehensions that the amendments could undermine the autonomy of commissions and compromise their ability to direct disclosure of information that the central government would not like to divulge.”