Vacancies, Pending Cases Threaten to Take the Wind Out of RTI's Sails as it Turns 15

A report by a rights groups found that one-fourth of all information commissioner posts were vacant across the country.

New Delhi: Exactly 15 years ago on this day, the Right to Information Act, 2005, came into force.

But endless vacancies of commissioners in the central and state information commissions, their reluctance to impose penalties on public information officers who refuse to divulge information, and the subsequent burgeoning of pending appeals and complaints in these panels have contributed to the Act falling short of achieving its objectives.

Transparency rights groups have also pointed out various flaws in the implementation of the Act. The report card on the Performance of Information Commissions in India, released by Satark Nagrik Sangathan (SNS) and the Centre for Equity Studies (CES) highlighted some of the key reasons why the people’s right to know was not being fulfilled.

The report card said the law has been used extensively to hold the government accountable for delivery of basic rights and entitlements and to question the highest offices of the country. This was reflected in the fact that between 40 to 60 lakh RTI applications were filed each year.

However, it said, “the functioning of information commissions is a major bottleneck in the effective implementation of the RTI law. Large backlog of appeals and complaints in many commissions across the country have resulted in inordinate delays in disposal of cases, which render the law ineffective.”

No regular appointments despite SC directions

The study said “one of the primary reasons for the backlogs is the failure of central and state governments to take timely action to appoint information commissioners” to the Central Information Commission (CIC) and State Information Commissions (SICs). It said these “appointments are not made in a timely manner, resulting in a large number of vacancies.”

Also read: Information Commissions Aren’t Helping Citizens Enough During Lockdown: RTI Activists

Recalling the Supreme Court’s ruling in February 2019, when the apex court said that the proper functioning of commissions with an adequate number of commissioners is vital for effective implementation of the RTI Act and held that the number of commissioners required should be determined on the basis of the workload, the assessment found that several Information Commissions (ICs) were still non-functional or were functioning at a reduced capacity as many commissioners posts were vacant.

The report card found the information commissions of Jharkhand and Tripura to be defunct for varying lengths of time. It said that the Jharkhand SIC had been without any commissioner since May 8, 2020, and consequently, people in the state had no recourse to the independent appellate mechanism for the last five months.

Likewise, it said, the Tripura SIC has been defunct since April this year when the new chief who was appointed in September 2019 demitted office on attaining the age of 65. Prior to this, the panel had no commissioner between April and September 2019.

Nine information commissions, including CIC, without heads

The report card also revealed that nine out of 29 information commissions (31%) in the country were functioning without a chief information commissioner. “The absence of a chief information commissioner has serious ramifications for the effective functioning of the ICs since the RTI Act envisages a critical role for the Chief, including, superintendence, management and direction of the affairs of the information commission,” it added.

It further pointed out that even the Central Information Commission had been without a chief since August 27, 2020. “This is the second time in the period under review (April 2019 to July 2020) that the post of the Chief has fallen vacant,” the assessment said, adding that this was the fifth time in six years that the CIC had been rendered headless due to the delay in appointing a new chief upon the incumbent demitting office.

Representative image of RTI. Illustration: The Wire

Pendency of cases mounts as panels function with reduced strength

The SNS-CES study also revealed that several information commissions, including the CIC, were functioning at a reduced capacity since commissioners were not being appointed in a timely manner.

Against a sanctioned strength of one chief information commissioners and 10 other information commissioners,

Also read: Delay in Replies to Appeals and Complaints Killing RTI Movement, Warn Activists

The study said that the CIC was functioning with seven information commissioners in April 2019 against a sanctioned strength of one chief information commissioners and 10 other information commissioners. In December 2019, the Supreme Court had directed the government to fill all vacancies within a period of three months. However, due to delays in appointments, the CIC is still functioning with only five commissioners.

As a result, the report said, the backlog of appeals and complaints with the CIC has crossed 36,500 cases.

In the states as well, the report pointed, the situation was similar. The Maharashtra SIC, which has a sanctioned strength of 11 information commissioners, including the chief, is functioning with just five and the number of pending cases has shot up from nearly 46,000 in March 2019 to almost 60,000 now. Similarly, the number of cases pending before the Odisha SIC and the Rajasthan SIC have increased to 15,000 and 14,000 respectively.

Overall the report said 1,78,749 appeals and complaints were registered between April 1, 2019, and July 31, 2020, by 21 information commissions and 1,92,872 cases were disposed by 22 commissions during this period. As of July 31, 2020, it said a total of 2,21,568 cases were pending with 20 information commissions, who provided their details. In comparison to March 31, 2019, when 26 commissions had revealed that 218,347 cases were pending with them, the report card said the pendency had risen despite fewer commissions providing information this time.

Reluctance to impose penalties

The report card said while the RTI Act empowers the ICs to impose penalties of up to Rs 25,000 on erring public information officers (PIOs) as a deterrent against wrongful refusal to provide information, “ICs imposed penalty in an extremely small fraction of the cases in which penalty was imposable” and “commissions appear to be reluctant to even ask the PIOs to give their justification for not complying with the law.”

The assessment found that between April 1, 2019, and July 31, 2020, a total of 15,738 show-cause notices were issued to PIOs under the penalty clause of the Act, by the 13 commissions which provided the relevant information – with the Gujarat SIC issuing the most at 9,080, followed by Haryana (3,962), Andhra Pradesh (881) and the Central Information Commission (858).

Also read: SC and RTI: Why the Top Court Should Lead the Way in Ensuring Transparency

As for the imposition of penalties, the report said, 18 commissions which had provided relevant information claimed to have imposed penalties amounting to Rs 2.53 crore for a total of 1,995 cases.

The Haryana SIC had the highest number of penalties imposed at Rs 65.43 lakh, followed by Madhya Pradesh (Rs 43.33 lakh), and Uttarakhand (Rs. 35.79 lakh). The CIC imposed penalty amounting to Rs 12.22 lakh during this period.

The report said an analysis of information provided by 16 information commissions revealed that penalties were imposed in just 2.2% of the cases disposed.

An earlier assessment had revealed that on average 59% orders recorded one or more violations listed in Section 20 of the RTI Act, based on which the commissions should have triggered the process of penalty imposition. As per that estimate, the report said, the actual penalties were only imposed in 3.8% of cases where they could have been imposed.

Information commissions themselves not transparent

The report also held that most of the Information Commissions were themselves not transparent enough in their functioning. It said much of the information sought as part of the assessment should have been available in the annual reports of these panels. However, 25 out of 29 ICs (86%) did not publish their annual report for 2019 and the Punjab SIC was found to have not published its annual report since 2012 while the Uttarakhand SIC had not published it since 2014.

Also, the assessment said 19% of Information Commissions had not made their latest annual report available on their website.

Only 9 ICs conducted online hearings during COVID-9

Meanwhile, another report released by Transparency International India on Sunday revealed that only nine information commissions, including CIC, out of the 29 conducted online hearings during the lockdown imposed due to COVID-19. Also, it said, only three states — Andhra Pradesh, Arunachal Pradesh and Madhya Pradesh – issued COVID-19 circulars and warnings on their websites.

Also read: Transparency Activists Question Centre’s ‘Compliance Report’ on CIC Appointments

The report also claimed that only five states had maintained data on the threats being issued to and attacks on RTI activists.

It also noted that one-fourth of all posts of information commissioners remained vacant across the country. “Out of 160 posts, 38 posts of information commissioner are vacant at the union & state level, whereas in Oct-2019, 24 out of 155 posts were vacant. Four Chief Information Commissioner Post namely CIC, Uttar Pradesh, Jharkhand and Goa are vacant,” it said.