It is 15 years since the Right to Information Act was introduced as another piece of legislation, only to cheat the masses once again. Touted as a sunshine act, a panacea for corruption and to introduce accountability of public servants to the public, it has grown into one of the biggest, yet unrecognized, scams. Before we proceed, let us do some back of envelope calculations.

Each information commission is authorized one Chief Information Commissioner (CIC) and a maximum of 10 Information Commissioners (ICs). There is the Central Information Commission (Central IC) and 29 state information commissions (SICs) with, say, an average of 6 ICs, including the CIC. That makes the total number of ICs, including the CICs, as 180.

Each information commissioner can dispose of, say, a very conservative 10 appeals per working day. As there are 220 working days per year, each IC is expected to clear 2200 appeals in a year. So, between all the ICs, in 15 years the number of appeals disposed of should be around 59,40,000.

The RTI Act provides for imposing a penalty @ Rs 250/- per day of delay in providing the information sought, subject to a maximum of Rs 25000/- on a defaulting Public Information Officer (PIO). Presuming that no appeal would have been filed unless there had been shortfalls in providing the complete information sought, and that by the time an appeal is disposed of by an IC this maximum limit would have been reached, the total penalty due would be a whopping Rs 148,500,000,000 (14,850 Cr).

Now consider the average cost, in terms of pay and perks only, to the exchequer of an IC to be around Rs 3 lakh/month till the Seventh Central Pay Commission and Rs 5 lakh/month since January 1, 2016. That would be Rs 11,880,000,000 (1,188 Cr).

To my mind the total of the above figures, i.e., Rs 16,038 Cr is the total loss to the exchequer over the last 15 years. This does not include the cost of the establishment (fixed and movable assets), salary and allowances of other employees, consumables etc.

Do I mean that all 2nd appeals deserved the full penalty to be imposed? Yes, of course. Given that even in cases of decisions directing the defaulting Public Information Officers to provide information, the ICs have been delinquent in penalizing them, shows the extent of arbitrariness, waywardness and corruption involved.

I, along with 12 activists, were put in the dock when we staged a protest outside the venue where the then CIC of Kerala SIC was to address a seminar on RTI. Obviously, the detention and prosecution were illegal and misuse of authority by the police at the behest of the CIC. That aside, demands of the protesters were for the information commissions to stop:

-        denial of democratic rights of citizens

-        violation of laws

-        corruption

-        extravaganza

The issues highlighted included:

-        All public authorities including the Information Commission should disclose information as required by Sec 4(1)(b)

-        Collect the penalty prescribed by law for delay in publishing the information

-        Dispose of complaints and appeals received by the Commission in a time bound manner as prescribed by the law

-        Stop the misinformation being disseminated by the Commission

The Commission, which has an air conditioned office, computers, luxury cars and more than the required number of employees, should not claim that it has no facilities (the 4 commissioners who need 15 employees have 35, of the 1263 cases filed in the Commission between January 2006 and May 2007 only 649 have been disposed of, and the amount spent by the Commission during this period was Rs 2.5 crore of taxpayers’ money).

Stop spreading lies that some people are threatening government employees in the name of the RTI Act

Isn’t the scope for misusing the law available only to the information commissioners? For example, to accept a bribe of Rs 15,000/- from a defaulting public servant who should be penalized Rs 25,000/- and fail to penalize him is available only to information commissioners.

The copy of the leaflet, in Malayalam, distributed during the protest on December 18, 2007, along with its translation in English, is available at 

https://www.slideshare.net/raviforjustice/rti-protest181207leafletmal-n-eng.

The situation has gone from bad to worse over the years. To elucidate further, even the information commissions have not complied with the mandated suo moto disclosures listed in Sec 4(1)(b). At their website, http://keralasic.gov.in/, under Right to Information, Kerala SIC has only provided the details of their PIO and their First Appellate Authority (FAA).

Under Disclosures, there is a Menu where the 1st option is Disclosure u/s 4(1)(b). Here what has been provided is a list under the heading Private Journey Payment (for the period June 2011 to July 2014).

The Central IC, which had correctly disclosed this information, sub section wise, at their website in the early years, has now disclosed only partial information. For example, the details of employees and their monthly remuneration have not been disclosed as required by Sec 4(1)(b)(ix) and Sec 4(1)(b)(x) of the RTI Act. What has been left out is the exact number of employees in each category. And instead of the exact remuneration, only the levels as per the Seventh Central Pay Commission scales have been provided.  

While the Act has provided mandatory time frames for the PIOs and FAAs to reply and for the applicant to file appeals, it has not provided any time frame for the ICs to dispose of the appeals (as well as complaints) submitted to them. But there is a provision, and only one provision to Sec 7(1), which prescribes a priority for providing information: where the information sought for concerns the life or liberty of a person, the same shall be provided within forty-eight hours of the receipt of the request. By extension, it follows that the appeals, including the 2nd appeal, must be disposed of within 48 hours each. And, in the rest it must be on first come, first served basis. But even that is violated, as will be evident from data on disposal of cases.

Regarding disposal of cases, under the option ‘Orders’ in the main menu, the Kerala SIC has provided the information at its website under different years from 2010 to 2019 and another option ‘Orders in English’.

As on 30 Jul 2019, for 2019, the orders have been provided against various ICs as follows:

Vinson M Paul, CIC (For January to April 2019):

He had disposed of 312 cases between January and March 2019, and 32 in April 2019. To understand the arbitrary and wayward (not on first come first served basis) manner of disposal, the April data was analyzed to co-relate the year in which the application was originally submitted, with the appeals and complaints disposed of in that month. The result is:  

2nd appeal   : 2012-3, 2013-9, 2018-10, 2019-1,        Total- 23

Complaints  : 2013-2, 2014-1, 2018-1, 2019-5,           Total- 09

The following are deficiencies noted in the above data made available:

-        Information about the disposals since May 2019 is not available.

-        The orders/decisions themselves are not accessible in all cases. While the orders up to March 2019 appear as hyperlinks, for April 2019 it is just a list. But even a random check of these hyperlinks checked from the January list, shows the message ‘Forbidden. You don't have permission to access /images/stories/sic/decisions/orders2019/cic/ on this server.’

-        The orders have been uploaded in Word format and not Portable Document Format (PDF) and hence cannot be read unless the same fonts are installed in your system. This problem does not arise with PDF.

If this be the case of the CIC, the data about other ICs is even more shocking.

Vivekanandan, IC (Available for 2018 only.)

2nd appeal   : 2016-6, 2017-5, 2018-2,                         Total- 13

Complaints  : 2013-6, 2014-2, 2017-3,                         Total- 11

Somanathan Pillai, IC (Available for 2019 only, not month wise, but separately for Malayalam and English. The figures given below include both)

2nd appeal   : 2010-1, 11-1, 12-1, 13-4, 14-13, 16-1, 17-2, 18-14, 19-7,         Total- 44

Complaints  : 2010-6, 15-1, 17-3, 18-2, 19-3,                                       Total- 15

Sudhakaran, IC (Available for 2019 only)

2nd appeal   : 2015-8, 16-1, 17-3, 18-4,                         Total- 16

Complaints  : C: 2015-1, 18-1                               Total- 02

Sreelatha, IC (For January and Feb 2019 only)

2nd appeal   : 2015-3, 17-5, 18-4,                                   Total- 12

Complaints  : 2017-8, 18-3,                                 Total- 11

While Sudhakaran’s list of cases disposed have hyperlinks to the orders/decisions in PDF, the list of cases disposed of by the others are just that, mere lists with no access to the decisions themselves.

It may be noted that while the figures about disposal convey the casual approach of the ICs, the perusal of the orders themselves would reveal the preposterous nature of the decisions. When the decisions are devoid of reasons, the least that should be obvious is the dereliction of duty and/or incompetence of the CIC. If anybody suspects corruption, they cannot be blamed.

Another piece of information available at the website is that of the expenditure incurred by the Commission annually, for the period from 2005-06 to 2013-14. It has steadily increased from Rs 1.0127 Cr to 2.9474 Cr. What about the expenditures thereafter?

As per a list, updated on October 11, 2018, of 664 penalties imposed by the Commission, the first penalty, of Rs 3,500/-, was imposed by the Commission on January 08, 2007. The last, Rs 1,000/-, was imposed on July 18, 2018.

The total penalty imposed, as per the summary provided is: Rs 44,51,815/-; the total received is only Rs 28,56,353/- and the High Court, Kerala has stayed penalties totaling Rs 4,88,387/-. Again, no questions on the missing Rs 11,06,893/-.

Now, when penalized PIOs take up the matter with high courts they are required to do so in their own personal capacity. This is not only logically correct, but has been held so by Punjab and Haryana High Court as per a report in the Indian Express, November 4, 2010.

Since, the Information Commission must be a respondent in such cases, do the commissions keep a record of such cases? At least the Kerala SIC does not. This is in violation of Sec 4(1)(a) of the RTI Act which mandates that ‘Every public authority shall maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act’.

In a similar issue, of maintaining a register to track compliance of their decisions, the Central IC had decided that a Register of Non Compliance will be opened, which will be processed by the Office of Secretary, CIC and on conclusion of the complaint, the complaint will either be closed or registered as a complaint for hearing under the appropriate sub sec. of Sec. 18(1) and proceeded upon by the Bench of the Information Commissioner concerned. (Refer decision dated June 11, 2009 in Commission in their case file no. CIC/WB/C/2008/00859)

In a 5-part series on the subject ‘RTI: Exposing the traitors among public servants’ published between March 27-31, 2018, the details of the RTI Act including its shortcomings, the lapses in implementation and the way forward were analyzed:

-        http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4626

-        http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4627

-        http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4628

-        http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4629

-        http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4630

There is one small but major change that has happened since then. Through an amendment to the Act, published in the Gazette on August 1, 2019 and the rules published thereunder on October 24, 2019, the tenure and pay of the ICs, including the CICs have been changed.

Essentially, the tenure of all these public servants has been reduced to 3 years from 5 years. The pay of the CIC of the Central IC has been reduced to Rs 2,50,000. Earlier it had been the same as that of the Chief Election Commissioner. The pay of the ICs of the Central IC has been reduced to Rs 2,25,000. Earlier it had been the same as that of the Election Commissioner. The pay of the CICs and ICs of the SICs have been fixed at Rs 2,25,000/-. Earlier it had been the same as that of an Election Commissioner and Chief Secretary to the State Government, respectively.

I have been maintaining that the job of an IC is simpler than that of a munsif in our judiciary. Hence even this level of pay is an avoidable drain on the exchequer.

But there has been severe criticism of this amendment from many RTI activists. Venkatesh Nayak of the Commonwealth Human Rights Initiative commented (Govt notifies RTI rules; CIC tenure cut to 3 yrs, govt to decide salary, other perks, Economic Times, October 25, 2019): ‘As the parity between the Information Commissions and the Election Commission of India has been downgraded to babu-level, it is highly unlikely that in a situation where the rule of law is not a very strongly embedded value in the bureaucracy, that senior babus in the administration will ever be hauled up before the Information Commissions for not complying with the provisions of the RTI Act’.

The Print (21 of 29 state information commissions did not hold any RTI hearings during lockdown, May 21, 2020) carries a study by voluntary groups Satark Nagrik Sangathan and Centre for Equity Studies that only the Central IC and the SICs of Arunachal Pradesh, Haryana, Manipur, Punjab and Telangana had made provisions for taking up urgent matters or those related to life and liberty during the period. But then, wasn’t the apex court itself among the first to decide that it was a non-essential service during the lockdown?