The status of this much touted sunshine act, 15 years on, can be summed up in one word - murdered. Murdered by the very Information Commissioners who were tasked, empowered, equipped and paid to enforce it. It is said that the law is like a cobweb, insects get caught but birds just fly through. In the case of the Right to Information Act, it’s much worse. Even a simple application to know the status of four appeals pending with the Central Information Commission has failed; that should be proof enough.

There were two 2nd appeals filed on May 28, 2010, one against the Railways and the other against the Office of the Senior Superintendent of Post Offices. The one against the Railways was disposed of on Sep 29, 2010 and the other on Sep 28, 2011.

Another two appeals had been filed against the public authority, State Bank of India, way back on Jul 7, 2010, under a separate covering letter. One was disposed of on Dec 8, 2010 but the other went missing. 

So, on Jul 23, 2011, I submitted an application under the RTI Act to know the status of these four appeals. The CPIO replied on Aug 26, 2011, totally skirting the issue of the missing 2nd appeal against SBI. But the 1st appellate authority, on Oct 3, 2011, directed the CPIO to provide the information within 20 working days. There was no response from the CPIO.

The 2nd appeal was filed on Nov 9, 2011 and the Information Commissioner, Shailesh Gandhi, disposed of it on May 4, 2012 with a curt statement that ‘the information available on record has been provided’. (Decision No. CIC/SM/A/2011/002676/SG/18751) He also made an irrelevant observation: The Appellant has certain serious grievances with the working of the Commission for this he would have to make representation to the Chief Information Commissioner and it is not in the PIO’s jurisdiction to resolve these.

Appeals going missing in the CIC is certainly a serious grievance, rather concern. But that was not the subject of the appeal; that was only the fact that got exposed through the process of dealing with this application. Sec 18(2) of the RTI Act has empowered the information commissioner to initiate an inquiry if he is satisfied that there are reasonable grounds to inquire into the matter and Sec 18(3) vests in him the same powers as are vested in a civil court for conducting the proceedings. He did not comply with this mandate of the law. The reasons could be ignorance of the law or incompetence which are not acceptable of an information commissioner. If it is none of these, then the default assumes more serious dimensions.

Sridhar Acharyulu, another information commissioner at the CIC, Delhi, had in his decision dated Mar 12, 2014, in Kuljeet Singh Vs SDM, Delhi (File No. CIC/AD/A/2012/003924­SA) directed a Deputy Commissioner to conduct an inquiry into this so called incident of ‘missing file’ within one month and fix the responsibility so that disciplinary action is taken against him as that amounts to obstruction of furnishing the information and recommend initiating disciplinary action against those found guilty of missing the file.    

Shailesh Gandhi is probably a rare case of an RTI activist getting an opportunity to enforce the law as an information commissioner. One of his decisions that I keep quoting (Decision No. CIC/SM/A/2011/000278/SG/12906) dated Jun 16, 2011, where he dealt in detail with the scope of Sec 6(3) of the RTI Act. This section states:

Where an application is made to a public authority requesting for an information,—

(i) which is held by another public authority; or

(ii) the subject matter of which is more closely connected with the functions of another public authority, the public authority, to which such application is made, shall transfer the application or such part of it as may be appropriate to that other public authority and inform the applicant immediately about such transfer:

Now the use of singular in ‘to that other public authority’ has been misinterpreted by PIOs to deny information to applicants when the information is held with more than one other public authority. Shailesh Gandhi had quoted extensively from the General Clauses Act and High Court and Supreme Court judgments to conclude that the application must be transferred to as many public authorities as required.

Now, the current Chief Information Commissioner of Kerala, Vinson M Paul, a former DGP, had been going around telling public authorities that they need to provide information available with them and for information not held with them they may inform the applicant to submit separate applications to the other public authorities. I had an opportunity to interact with him once and had handed over a copy of the decision of Shailesh Gandhi on the subject and his prompt reply was that decisions of the Central Information Commissioners are not applicable to State Information Commissioners. On asking ‘what about the General Clauses Act and apex court orders quoted by the Central IC?’, he had no reply.

Suffice to say that the information commissioners have not only subverted the law they have been tasked to enforce, they have also caused considerable loss to the exchequer in terms of mandatory penalty not levied. A back of envelope calculation reveals that the loss is to the tune of Rs 14,850 cr over the last 15 years, presuming an average of 180 information commissioners employed at any time in 30 information commissions across the nation, including the Central Information Commission, and each working for 220 days in a year and disposing of 10 appeals per day.

Vinson Paul reportedly claimed to have disposed of 34 appeals in one day (Malayala Manorama Daily, Jul 23, 2016) and Shailesh Gandhi posted his statistics on Facebook on Jul 6, 2012, while relinquishing office: Cases disposed 20279; Penalties 520; Amount 96 lacs; Amount recovered 59.6 lacs; Tenure 3 years 9 months (say, 825 working days and 24 appeals per day.)

Then, there are real frauds being perpetrated by the information commissioners. The most important is that they do not even go through the appeals submitted by citizens even cursorily. The case of the missing appeals narrated earlier is clear proof of this.

Then, there is the procedure followed in disposing of appeals. Sec 20 (1) of the Act states:

Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees:

Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him:

Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be.

Emphasis has been added to highlight the following facts:

the opinion of the commissioner must be based on the facts

the reasons for default are exclusive, that is each reason is independent by itself and even if the complete information sought had been provided but there has been delay, the defaulting PIO must be penalized (note the term used is shall impose).

The first proviso mandates providing a reasonable opportunity of being heard to the defaulting PIO, before any penalty is imposed on him.

Now here is the hitch. The decision whether to impose the penalty or not has to precede the opportunity to be given to the PIO of being heard. And rightly so, as it can be made by just scouring through the nature, I repeat, only nature, of the information sought and excluding any of the subjects which are barred from disclosure. Even the question of adhering to prescribed time frames become relevant only if all the information sought has been provided. Otherwise, by the time the appeal comes up before the commissioner, the period for which the maximum penalty must be imposed would have been long over. Then, it is a matter of telling the PIO that the 2nd appeal has revealed that he has not provided the following information sought and hence need to provide it without further delay and given the delay already caused, he should provide reasons for not imposing the mandated penalty of Rs 25000/-. While this can be done through a personal hearing it is not mandatory at all to have a hearing in person.

The second proviso to the Section is unambiguous. It states that the burden of proving that he acted reasonably and diligently shall be on the PIO. Thus, the presence of the appellant is also not mandatory. Of course, if, and only if, it has been brought on record that there are valid reasons for the delay or denial of information, it would be prudent on the part of the information commissioner to bring it to the notice of the appellant and get his counter to those reasons, before finally disposing of the appeal.

But what we find in actual practice is that the ICs don’t even take a cursory look at the appeal, issue notices for hearing to both the PIO and the appellant, and sometimes even the 1st appellate authority doesn’t ensure that it is actually the defaulting PIO who attends the hearing, wastes the time of all, and produces a record of proceedings and a decision that is fit only for the trash can.

Occasionally, when the decision to impose the penalty is taken after this hearing, there is another hearing held to which the appellant is not privy and he is not even informed of the final decision. But, going by the information available on the websites of the information commissions, mostly the penalty is not imposed and no valid reason would have been brought on record either. Where the application has been transferred to other PIOs, those are not even taken cognizance of.

Though any number of examples can be given, here is one that will nail one fraud. In an appeal against the Railways, on the order dated May 19, 2009, of IC Annapoorna Dixit, the public authority provided the status of construction of 78 road over-bridges in Palakkad Division before the division was bifurcated into Palakkad and Salem divisions.

Four years later, on Sep 19, 2013, the status of construction of all those bridges was sought from the same public authority. The application was routed through the Assistant CPIO at the Divisional Office, Palakkad. This public authority duly intimated the forwarding of the application to the CPIO, o/o The Chief Administrative Officer, Construction, Egmore, Chennai-8, on Oct 4, 2013. Neither the CPIO nor the FAA responded. The 2nd appeal was dismissed on Jul 8, 2015 (Decision No. CIC/VS/ A/2Ol4 /OOO322) by the then CIC, Vijay Sharma, saying that the respondent had replied to the applicant on Oct 4, 2013.

While notice for hearing had been issued to the CPIO, o/o The Chief Administrative Officer, Construction, Egmore, Chennai-8 and the copy of his order also indicate he had heard this CPIO (without mentioning the name, which is a serious lapse), contents reveal a fraud.

He recorded that ‘The respondent stated that on 04.10.2013, they forwarded the appellant’s RTI application to the Chief Administrative Officer, Construction, Southern Railway, Chennai for providing the details as sought by the appellant directly. The respondent stated that they do not have any information relating to this RTI application.’

But wasn’t it the CPIO of Divisional Office, Palakkad who sent the application to Chief Administrative Officer, Construction, Egmore, Chennai-8? And, if the CPIO of the o/o The Chief Administrative Officer, Construction, Egmore, had attended the hearing, how could he say he did not have the information sought when it was only an update of the information provided four years back? And how could the CIC accept such a fraudulent reply?

Once, in the apex court, a bench of judges Markandeya Katju and S.B. Sinha opined: “the only way to rid the country of corruption is to hang a few of you on the lamp post. The law does not permit us to do it but otherwise we would prefer to hang people like you… everywhere, we have corruption. Nothing is free from corruption. Everybody wants to loot this country. The only solution for this menace is to hang some people in the public so that it acts as a deterrent on others.”

Judges B.N. Agarwal and G.S Singhvi had expressed similar sentiments in milder fashion: “for the bureaucracy in the country to work without corruption, these bureaucrats need to be flogged.”