When the UPA
government in 2005 piloted the Right to Information Act through Parliament, it
marked an epoch in citizens’ rights. Anyone and everyone can now ask how the
government works for their welfare, a radical change from the customary secrecy
that envelops its functioning. It has inspired countless people in every part
of the country to peel back the layers of bureaucracy, in the process exposing
dozens of scams in virtually every department.
It’s been a period of sheer joy for the advocates of transparency, but they fear the good times may be coming to an end. Over the years, governments in the states and at the Centre have become resistant to demands for information in a process of executive creep, and now its plan to introduce an ordinance to nullify one of the most important decisions of the Central Information Commission (CIC) has activists fearing the worst.
On June 3, the CIC passed an order that brings six major national parties into the Right to Information (RTI) process. Activists have hailed the decision as a political game-changer in the frustrating decades-long battle to get a handle on the privileges and patronage that underpins the political system. The parties named are the Congress, Bharatiya Janata Party (BJP), Nationalist Congress Party (NCP), Communist Party of India-Marxist (CPI-M), Communist Party of India (CPI), and Bahujan Samaj Party (BSP). The CIC order instructed them to appoint Public Information Officers (PIOs) by July 15 to respond to queries from the public.
“It will bring in a high level of financial transparency and openness,” Shailesh Gandhi, former CIC member and the only activist ever to be on the commission, said in his first reaction. He and many others feel exposing political parties to public review will help reduce the corruption and financial irregularities that mark their functioning. It offers a great way to prevent the mega scams in which every party is involved.
Predictably, however, the entire political class is digging in its heels in a rare and shameless show of unity across the ideological spectrum. Not one party has bothered to appoint a PIO and the government has rejected the order as misconceived. Obviously, no one wants ordinary people to get an idea of the wheeling and dealing that marks their functioning. RTI oversight will drastically reduce the scope for corruption.
So the CIC order will probably be suspended in bureaucratic limbo as the Centre mulls a special provision to exempt all political parties. Highly placed sources in the Prime Minister’s office say a draft of the ordinance is ready and the government is waiting for the “right time” to introduce it. The principal argument is that political parties are not constitutional bodies, so they shouldn’t be subject to the Act.
On July 15, the day
of the CIC deadline, Union information and broadcasting minister Manish Tewari
announced at a press conference, “If you read the RTI Act, if you go back to
the debate which led to its conceptualisation, if the intent was to bring
political parties under it, that would have been stated. And the law doesn't
allow you to do something indirectly which cannot be done directly and that’s
why we have said very respectfully that the CIC order is misconceived and fails
on the fundamental appreciation of the law.”
There is a special irony to Tewari’s use of phrases like “respect” and “fundamental appreciation of the law” as it is his government that brought the Act into being and is now indirectly crippling it. Political parties and bureaucrats have worked hand-in-glove in the states and at the Centre to reduce the RTI Act to a shadow of what it promised to be for the common man. The contempt shown by the political class for the CIC order is a logical step backward.
When the Act became law in 2005 under UPA-I, it was hailed as the best statute to empower citizens in recent years. Thousands of concerned citizens, many of whom have become RTI activists, put it to use to expose corruption, bad planning, and policies in various government departments. From the felling of trees to cleanliness in their localities, citizens have taken the government to task on almost every issue.
Journalists too have found it a boon, and the exposés on scams like the 2G spectrum allocation and corruption at the Commonwealth Games can be credited to the Act. Over the years they have filed lakhs of RTI queries to gather information from various departments.
Activists like Shailesh Gandhi, Krishnaraj Rao, and Commodore (retd.) Lokesh Batra are now well-known names. Delhi-based Batra exposed the inefficiency of all agencies in the probe into the brutal killings of young girls and boys in Nithari, and also went on to fight for the right of non-resident Indians (NRIs) in filing RTIs and accessing information from various departments in India through embassies and consulates outside the country.
US-based activists like Somu Kumar have been his active partners in the fight to make sure that RTI queries by NRIs are passed on to the concerned departments in the country; the process of filing of RTIs and writing letters to various departments took almost three years before yielding results.
Mumbai-based Krishnaraj Rao has been instrumental in exposing corruption in the issue of licences to hawkers in Mumbai. A group of activists including Rao exposed how rules were “watered down” in Mumbai to prevent the fire department from having a say in safety rules for buildings in the metropolis.
Shailesh Gandhi, also from Mumbai, was an entrepreneur and businessman till 10 years ago, when he sold it to become an RTI activist. He was active in exposing corruption and poor governance, including in the Brihanmumbai Municipal Corporation (BMC), through more than 800 RTIs. In 2007, Gandhi’s RTI queries revealed the BMC’s plan to hand over the redevelopment of Crawford Market to a private builder, which would have resulted in a loss of Rs.1,000 crore. He has also highlighted a revenue loss of thousands of crores stemming from unauthorised occupation of leased state land.
Gandhi was appointed as one of 10 central information commissioners in Delhi in 2008; he is the only activist to have been appointed till date. Gandhi devised a radical plan to shorten the wait for redress under the Act. He offered to keep just Rs.1 from his salary and use the rest to acquire more staff; set a 10-20 minute limit to decide on an information request; and digitised his office—a first for any government setup. By the time he retired in July 2012, he had heard over 20,000 appeals.
But his tenure was difficult. In 2011, he received an RTI application asking for the decision in a case registered in May 2010. His staff could not locate the case file for a long time and that prompted a detailed listing of cases which had also been missed or forgotten completely; 110 such files were eventually found. In one was the case of the widow of a government employee who had died in 1993. The woman was illiterate and poor, had young children, and had been struggling to get the pension she was entitled to since her husband’s death.
“Since she was illiterate, she probably could not pursue the matter properly and each time there was a great delay, the system required many more proofs to establish her claim. By the time she barely managed to submit the required papers, it had been years and office inefficiencies would not let the decisions be made for some years,” Gandhi writes on his blog.
Despite managing to run an efficient setup, Gandhi goes on to explain that he too delayed the pension to be given to the woman by a year, something he says he will regret all his life. “This set me thinking and I realised that there could be many such mistakes, which could result in untold suffering to citizens who approach judicial and quasi-judicial bodies.” Gandhi took up the matter of listing pending cases in the Central Information Commission with the Chief Information Commissioner, and made sure that the website of the CIC, www.cic.gov.in, displays a list of pending cases that is updated every month.
There is one other legacy that Gandhi may have left. The CIC office in August Kranti Bhavan at Bhikaji Cama Place in Delhi is nondescript and laidback. It’s not a place where you might find many people on a normal day. But the officials and workers are, amazingly, so busy that it hardly feels like a government office. Gandhi's digitisation drive ushered in efficiency.
Under the Act, all government departments should detail information about all their projects in the public domain. Section 4 mandates that information about all projects, sanctions, tenders, etc. be available to citizens; most information about various government bodies and their activities must be declared suo motu. It must be published in a manner that ensures widespread dissemination, including through the Internet, so that the public has minimum resort to the use of the Act. But even the various SICs, leave alone the government departments, have paid little attention to the requirements of Section 4.
The biggest hurdle that government departments face today is the non-availability of files or loss of data or information due to ignorance. Hundreds of RTI applications have received replies stating loss of data or non-availability of information. In a case in Indore in 2009, the widow of a policeman, who died in a shootout with dacoits near the Rajasthan border a year earlier, was told in reply to her RTI application demanding to know why the compensation due to her was not paid that as her husband’s was a case of “suicide”, she was not entitled to the amount. Rukmani Devi fought almost a year to get the file traced with the help of his colleagues, before she could get the amount due to her.
The biggest hurdle that government departments face today is the non-availability of files or loss of data or information due to ignorance. Hundreds of RTI applications have received replies stating loss of data or non-availability of information
This problem hit
government employees right after the RTI Act was passed in 2005. Responding to
RTIs in a satisfactory manner became, in some cases, impossible.
R. K. Ahuja, a retired bureaucrat from the Municipal Corporation of Delhi (MCD) who was briefly in charge of its RTI wing, says, “Even senior officials had to wait two to three days for access to important files. For files that they did not classify as important, store managers would take almost a week tracing them. Digitisation was started for this very purpose and MCD was among the first civic bodies to do so.”
But till then, he concedes, people either did not reply to RTIs, or in cases where complaints were filed with senior authorities, they would lie about the date on which they had received the complaints. “These practices were very common,” he says.
One of the reasons the RTI has remained a nuisance for government servants is the lack of understanding of its various provisions, both among them and the public. Says Ahuja, “Many a time, people would ask questions like ‘why was this work carried out now and not later?’ or start suggesting things in a questioning manner, like ‘why doesn’t the MCD construct a road here for the benefit of commuters?’. Hundreds and hundreds of such queries were received. Some were so unreadable that we would simply throw them and later feign ignorance or deny receiving them. In many cases, I personally sent replies asking the applicants to send their queries in computer-typed letters.”
Ahuja agrees that the lack of understanding hit the officials too. Many workers would simply not take the pains to search through the files and later say the file was untraceable or lost. He says, “In such cases, you either come down hard on them or search yourself. The culture of accountability just is not there among government departments. They are hardly even accountable to their seniors, leave alone the common man.”
Batra agrees with Ahuja. He has been regularly invited by various ministries and departments to train their officers or acquaint them with the small print of the Act, its various provisions, and other related issues. He has given lectures to officers at the level of chief secretaries too, he says. In some cases, he has been shocked at their lack of understanding.
“They are too power-smitten and have a we-are-above-these-provisions attitude. Some even question the need to give certain information to applicants and ask about the replies they should frame to deny information. The basic instinct is to deny or hide information—as much as possible,” Batra says.
In short, small details almost always come in the way. The way an applicant words an RTI application determines the way the PIO responds. If an application is excessively detailed, appears full of anger, or seems like a personal challenge thrown at him/her, the reply can easily be postponed. As the 30-day deadline for giving information approaches, the official may stonewall the applicant by citing irrelevant or partially relevant rules simply because the intention is to dispose of the application with minimum time and energy.
Initially, officers imposed the heavy costs of photocopies on the applicants until the burden of supplying data was put on the departments. It was probably as part of the process to stem this rot and improve RTI functioning that Shailesh Gandhi was appointed in 2008. But that now seems like an aberration, since the bureaucrats and politicians had other ideas in mind.
In a move that
shocked RTI activists and citizens across the country, the Department of
Personnel & Training (DoPT) notified the amended rules of the RTI Act in
July last year without taking into consideration the thousands of suggestions
by citizens since 2010. This despite the fact that thousands of citizens
actually sent suggestions after the DoPT issued advertisements calling for them
for a “Proposed Amendment to RTI Rules”.
To rub salt into the wounds of the activists, in a reply to a query by Batra, the DoPT said the folder containing citizens’ suggestions was missing. When the rules were amended 21 months later, the folder was still missing.
For starters, the DoPT put a limit of 500 words for every application and notified that one application must contain questions relating to a single topic. The Rs.10 fee is now applicable for a RTI application not containing more than 500 words, excluding annexures, and containing the address of the Central Public Information officer (CPIO) and that of the applicant. In case an application runs to more than 500 words, PIOs simply do not take into consideration anything that exceeds the limit. Most activists accepted the amendment.
“In the absence of a word limit, some applicants ask so many queries that they lose sight of the information they want. Putting a word limit has resulted in more focused applications and better provision of information,” Shailesh Gandhi had said at the time.
Batra disagreed. “Invariably applicants need to write the background with reference to which information is being sought as a prefix to queries or attach a document as a reference. At times the information is interlinked with more than one subject. Also, this Act is meant even for illiterates and less-educated people; then how can you expect people to follow such a tight word limit?”
The government also
brought in an amendment saying that applicants Below Poverty Line (BPL) would
be exempt from the fee “provided a copy of the certificate issued by the
appropriate government in this regard is submitted along with application”.
This copy has to be attested by a lawyer, for which the applicant would
obviously have to pay the lawyer and also travel to the nearest notary/court
complex instead of just filing from his village/town.
In addition, the government also brought in a long list of payments to be made by the applicant for the replies, based on the number of pages, costs of photocopies, postal charges involved in supply of information which exceed Rs.50, and so on. While Gandhi found it reasonable, Batra said, “The preface says citizens should voluntarily participate in the process of nation-building by way of ensuring transparency and accountability in the governance, by making a request for certain information from the government that is theirs. In this voluntarily participation, the applicant as it is has to spend time and energy and money in seeking information. Even the expenditure done by public authorities in meeting the provisions of the Act comes from tax payers, so why burden applicants with further cost?”
The amendments allow PIOs to appoint any person to represent them, essentially clearing the way for lawyers to fight cases for government departments instead of the officials themselves. They also insist that the appellants be present during the hearing, appoint representatives, or be present through video-conferencing. The catch is that appellants will be informed barely seven days before the hearing, which makes travelling to distant places by train almost impossible. “Firstly, video conferencing is available only in a few areas in India so what does the appellant do if there is no such facility? He would obviously be required to travel to places where the commissions are located so you can imagine the burden on the citizen for whom information is his public right, but here he would have to personally bear the travel expenses,” said Batra.
A few more amendments were brought in but the government was forced to withdraw them under pressure from activists led by National Advisory Council member Aruna Roy.
The amended rules have made the process of requesting information extremely complex, and they seem to be on track to give the courts a run for their money in how complicated it can be for an applicant/appellant to get the government machinery to function.
For example, before the amendments, the moment an applicant filed a second appeal it would get into the existing queue and the technical formalities would be complied with during the course of time while the appeal would proceed towards coming up for a hearing. Now, an appellant first has to clear the objection stage before the appeal falls into the queue, which gives officials ample space to raise any number of objections and delay the process.
Earlier, even if a citizen appellant lacked articulation merits, which is most often the case as a citizen is not usually well-versed with legal procedure and officialese, the appeal could not be disposed of at the admission stage. Now for the want of articulation merits, appeals can be disposed of at the admission stage itself, by altogether excusing the PIO from making an appearance. In short, instead of simplifying procedures, additional hurdles have been created.
A senior government
servant who recently retired after a lengthy stay at the South Block of
Rashtrapati Bhavan agrees. “The provisions brought in are for the assistance of
government officials who receive lakhs of RTI queries every year. These will
make it easier for us to respond efficiently to queries. What the Centre and
the state governments should do is to open RTI training centres in villages and
towns and depute special officials to assist even an illiterate person to file
RTIs. The burden of processing queries and providing information should not
rest solely on the officials,” he said, speaking on condition of anonymity.
The states have
taken suppression of RTI many notches above the Centre in the past few years.
The leaders by a fair distance are Uttar Pradesh and Maharashtra, while others
like Chhattisgarh have hiked the fee per application to Rs.500.
In January 2012, as stated by an online petition led by citizens and activists, Maharashtra amended the RTI appeal procedure rules, which are already tougher than the Centre’s RTI rules, in a stealthy manner. For example, the word limit on an RTI application was brought down to 150. As if that were not enough, the state is mulling amendments to further limit the scope of the RTI.
Pune-based activist Vijay Khumbar managed to lay his hands on the draft proposal doing the rounds of the Mantralay—the Maharashtra government's secretariat in Mumbai—and distributed the document among state activists. “Ideally, the government should solicit response from the citizens but that is not the case in Maharashtra,” says RTI activist Krishnaraj Rao.
The present draft proposal, reportedly prepared in May 2012, requires the appellant to file an affidavit with additional personal details like name of father/husband, age, service/business, and so on, which is in violation of the RTI Act, which clearly states that an appellant is not required to furnish personal details except his/her name and postal address.
It also says that the notice for a hearing will be issued 15 days before the hearing, which, when considered in light of the regular postal delays, renders it almost impossible for an appellant to be present at the hearing. In addition, the provisions also allow the notices to be issued in one of the many modes which includes displaying them on notice boards of the State Information Commission’s (SIC) offices. In short, as stated in the petition, it expects lakhs of appellants from the state to travel to the offices in major cities like Mumbai, Navi Mumbai, Nagpur, Amravati, and others, to check the notice boards every week.
Apart from these appalling proposals, the draft also says the appellant will be allowed to represent himself through another person only when the SIC thinks it is an exceptional case. Basically, it denies the appellant the right to legal help from a lawyer or a consultant and leaves him at the mercy of the SIC. The draft also proposes to add a condition that the particular case is not/has not been filed in any other court, a clear violation of the RTI Act which states that it is in addition to the existing laws in the country and not a replacement of any of them.
The activists have
forwarded letters to the chief minister as well as other senior government
functionaries but not received any response. “We will have no option but to
take to the streets if any such proposal is even likely to be passed,” Rao
In Uttar Pradesh, on the other hand, the practice has been to deny information either by not replying or by giving vague replies. In the applications on the Nithari killings, Lokesh Batra filed appeals in the SIC based in Lucknow and was forced to travel there at his own expense after the Noida Authority kept denying him information. While in some cases he won, in some the then SIC, M.A. Khan, rejected his application saying he was acting out of “vested interests” and against the Noida Authority. “What vested interests can a retired person like me have except for demanding answers to questions that needed to be asked regarding those brutal killings? People should be held accountable,” Batra says.
Such experiences are common to many RTI activists in the state. Amitabh Thakur, a Lucknow-based RTI activist, has been forced to file an FIR against the Sahara Q Shop after they accused him of working for vested interests in reply to his RTI application through which he intended to expose corrupt practices being followed for collection of money.
In a reply to another application, Thakur was told by the inspector-general of police of the Karmik Range that he should get the copies of two letters he demanded directly from the state government since they had been sent to the police by the state government. No reason for denial of information was given, and Thakur had to approach the CIC.
One of the reasons government officials get away with the denial of information to applicants is the fact that no action is taken against them. Fines imposed on a government official for not providing information are to be recovered from his/her salary under the provisions of the Act. However, the recovery of fines from officials has not even been one per cent, as revealed in reply to an RTI filed by Urvashi Sharma.
The Uttar Pradesh state-level committee set up to review implementation of the Act in the state, constituted on July 7, 2008, under the chairmanship of the chief secretary to review the decisions of SIC and penalties imposed on a monthly/quarterly basis, has met only thrice since then. It first met during the present Samajwadi Party regime on April 4 and made many recommendations, including a full-time secretary to facilitate the smooth commissioning of the SIC, which has not had a secretary since it was constituted. Based on its recommendations, the Administrative Reforms department (ARD), directed government departments on May 30 to follow the RTI norms and furnish compliance report by June-end, but there has been no news from any of the departments. Besides, to realise the fine imposed on government departments for not providing information under RTI in the stipulated time, the committee directed that recoveries should be reviewed monthly and the report sent to the government. It also directed that a nodal officer be appointed to ensure fine recovery.
None of these recommendations have been implemented till now.
Successive state governments have not taken interest in RTI matters. The sole purpose has been to have their own political agents or officers in the SIC. But for the alertness of RTI activists like Sharma, NeeraYadav, a tainted bureaucrat already sentenced to jail in a land scam case in the state, would have been appointed the Chief Information Commissioner.
Politicisation of the post of Central Information Commissioners has become
rampant in the past few years. Civil society lost its place because of the
politics between the Congress and the BJP last year. A committee headed by
Prime Minister Manmohan Singh came up with the names of two civil
servants—Rajiv Mathur and Vijai Sharma—and Opposition leader Sushma Swaraj’s
candidate Basant Seth for the posts of CICs. The committee had suggested three
panels, each of three names. The first two comprised civil servants and third
civil society members, which included two journalists—Sona Jha and Dr Anuradha
Verma—and social activist S. Venkatesh Nayak.
But an RTI reply later revealed that Seth, and Swaraj’s other choice IAS officer Raghu Menon, were not in the list of nine persons shortlisted by a screening committee headed by Cabinet Secretary Ajit Seth. They were included in the list at the insistence of Sushma Swaraj and because of the delicate political situation between the two major parties in the country, the demand was heeded.
Swaraj reportedly came up with her own panel, forcing the committee to select a name each from the first two panels. No one from the third panel was later selected as Manmohan Singh insisted on two candidates of his choice.
RTI activists say that while the government followed a better procedure in appointments, Sushma Swaraj’s insistence on her candidates showed the political opportunism of the parties. Many of the 214 applicants were BJP loyalists but none was selected in the shortlist of nine, but Swaraj’s insistence on Seth, who is chairman and managing director of Syndicate Bank, forced the government to give in and include his name.
The decision by the government to appoint CICs in consultation with Swaraj came after 2010, when Swaraj challenged the appointment of P. J. Thomas as Chief Vigilance Commissioner. The Supreme Court later quashed the appointment, which led the government to strike a truce with the BJP on appointments to important positions. “The process of involving the leader of Opposition was started to ensure that the selected candidates had bipartisan support. But the parties just made it a give-and-take formula,” says Lokesh Batra.
Then in May last year, the DoPT prepared a short list of nine more candidates, including four retired IAS officers, this time without calling for applications, for appointment as CICs. The list included two names suggested by Swaraj: Raghu Menon and social activist Ranjana Kumari. The other seven names were the same as those shortlisted during the earlier round.
But the SC order, directing that at least one CIC member should be a retired judge or a person with legal acumen, spoilt the government’s plans. While most RTI activists have hailed it, some have contended that it will only amount to the government appointing lawyers or judges whom they favour. Activists also say the introduction of judges and the requirement laid down by the SC that persons with legal knowledge be involved in the procedures of appeals will only complicate the process for the common man. The SC has also termed the CIC and SICs as authorities having the status of a court, which will bring in many more complications in their functioning. The government has, however, filed review petitions with the SC regarding these comments by it and the matter is currently sub-judice.
The worst attack on
the Act has been violence by political and criminal elements against citizens
who have taken it upon themselves to expose corruption and ask questions about
their rights through government schemes.
The murders started within a few years of the implementation of the act. The first to die for “asking too many questions” was Lalit Kumar Mehta from Palamau, Jharkhand, who worked for a local organisation called Vikas Sahyog Kendra. Mehta had been filing RTIs and demanding a detailed social audit of the National Rural Employment Guarantee Scheme (NREGS) in the district. He was murdered on March 15, 2008, for demanding the audit.
Another activist, Kameshwar Yadav, who had been filing applications to establish a clear link between politicians, bureaucrats, and contractors over allocation of irrigation work in the Deori region of the Giridih district of the state, was murdered on June 7, 2008.
Maharashtra too has seen many murders, with the first being that of Pune-based Sathish Shetty. After his murder in January 2010, there was another in April the same year in Aurangabad district. Vitthal Gite had discovered that teachers at a school were pocketing the grant meant for students’ scholarships, and also claiming more wages by showing that they worked at more than one school. The very next month, Dattatreya Patil was killed in Kolhapur district for raising “too many questions” through RTIs.
Activists say that Maharashtra’s moves to cripple the Act have been put into place due to rampant corruption that government officials do not want exposed. Activists in the state are being “kept in check” through newer conditions in the Act, they say.
Environmental activists have been specific targets of various mafias in the country. In August 2010, Ramdas Patil Ghadegaonkar, who used the Act to expose companies using heavy equipment to dredge sand from the Godavari riverbed, was killed in his native Nanded district. Barely a month earlier, Amit Jethwa, an environmentalist who had used the RTI to expose illegal mining by companies in the protected forests of Junagadh district in Gujarat, was shot dead by unidentified gunmen. Jethwa was hailed as a green crusader in Gujarat but had prominent enemies since he was exposing the mafias that have been plundering the state. He was campaigning against illegal mining in the Gir Sanctuary areas backed by some politicians. Jethwa had filed a public interest litigation (PIL) in the Gujarat High Court, alleging mining in Una and Kodinar areas, allegedly by Junagadh BJP MP Dinubhai Boghabhai Solanki and his relatives. He had further alleged that the Solankis were running illegal mines and stone crushers in a village on the border of Gir forests. Investigations into his death were handed over to the CBI, but no concrete results are out yet.
RTI activist Amitabh Thakur and his wife Nutan are working on a book on the death of these “RTI martyrs”. Thakur says, “A new set of activists has come up who are asking for more and more information. But some government functionaries and private individuals are adversely affected by this dissemination of information. In some cases the parties seem to get so perturbed that they tend to grow revengeful and violent. The result is attack on the RTI activists, at times leading to their deaths. They are nothing but martyrs making the country aware of their rights.”
The death of Sathish Shetty in Pune inspired Thakur to form the National RTI Forum, which helps protect RTI activists and keeps everyone in the loop so that nobody is alone in his/her fight. “That way the world knows information gathered by an individual is known to people across the country. It provides a sort of safety net. But the threat to the lives of activists in small towns and rural India is far greater than can be imagined,” Thakur says. “Despite our efforts to unite like-minded people, ten people died last year.”
As per a rough estimate, close to one crore RTI applications will be filed this year, questioning corruption, denial of benefits to the poor, and delays in delivery of government services. Some of those queries could well result in the deaths of the applicants. Across the country, thousands of activists are working day in and day out to form an informal network to pry open the bureaucracy and the political order.
But their efforts
against political parties are unlikely to succeed. The CIC in its June 3 order
said the Congress, BJP, NCP, CPI-M, CPI and BSP are substantially and
indirectly funded by the central government and have the character of public
authority under Section 2(h)(ii) of the RTI Act as they perform public
functions. The order instructed them to reply to queries by activists who filed
the appeal in the CIC and designate PIOs to address public queries within six
“The presidents (and) general secretaries of these political parties are hereby directed to designate central public information officers and appellate authorities at their headquarters in six weeks’ time,” Chief Information Commissioner Satyananda Mishra and Information Commissioners Annapurna Dixit and M. L. Sharma said in their landmark decision.
The parties in one voice declared the order ill-conceived. The left parties were the first to react, with the CPI-M’s Prakash Karat calling it unconstitutional. BJP leader Ravi Shankar Prasad called for a debate.
V. Narayanasamy, Union minister of state in the Prime Minister’s office said, “I am against bringing political parties under RTI. We will take a decision soon.”
A rough estimate says nearly one crore RTI applications will be filed this year, questioning corruption, denial of benefits, and delays in delivery of government services. Some could well result in the deaths of the applicants.
“With elections coming up in 2014, parties will fight the order tooth and nail. They may battle each other every day but when it comes to protecting their own interests as a class they unite. This is again evident at the way they are joining hands to stay outside the ambit of RTI and outsmart an order issued by the CIC,” says Gandhi.
RTI activists are certain that the parties will defeat it by challenging it in the courts. D. B. Binu, general secretary of the Kerala RTI Federation, said the order was expected to go the way of the CIC declaration that the Supreme Court registry was a public authority. The Delhi High Court upheld the June 3 order but left it to the constitutional bench of the SC to take a final decision. “Had the parties gone to court, the thing would have got stuck for years to come.”
But the parties were against going to the SC, since they would have to obey any order even if it was against them. Instead, the government is set to bring out a Bill in the monsoon session to nullify the CIC's order..
Batra says such a law will be in contempt of the assurance given in Parliament. “On July 5, 2009, minister of state in the Ministry of Personnel, Public Grievances and Pensions, assured Parliament in a written response to a question that the ‘non-governmental organisations and social activists’ will be consulted before any amendment to the RTI Act, 2005,” he said in a letter to President Pranab Mukherjee. “If they (political parties) are being truthful, they can certainly go in a writ to the courts. In the past CIC decisions have been quashed by the courts.
“In the instant case I cannot see any reason which justifies any amendment to the RTI Act, 2005 by the government and that too without consulting all the stakeholders/citizenry at large that include ‘non-governmental organisations and social activists’.”
He may be asking for too much. But activists are already taking to the streets against the government’s attempts at any such move. “This attempt should not succeed,” Batra says. This time, though, the tide may be too strong.
Some ministries are
perpetual offenders when it comes to replying to RTI queries. When Venkatesh
Nayak asked questions about the execution of Afzal Guru, convicted of
terrorism-related charges and later hanged, the government denied replies. Guru
was executed a few days after President Pranab Mukherjee’s decision to reject
the mercy petition. The Ministry of Home Affairs and the President’s
Secretariat have so far rejected all requests for information on the disposal
of the mercy petition despite repeated queries.
Nayak’s first application requested copies of all mercy petitions relating to AjmalKasab—sole survivor among the terrorists who attacked Mumbai on November 26, 2008—submitted to the President, all file notings on the disposal his mercy petitions, and the President’s decision on mercy petitions.
In February, the PIO turned him down, but it did not invoke any provision of the RTI Act. It claimed privilege under Article 74(2) of the Constitution which bars disclosure of advice tendered by the Union Council of Ministers to the President. Nayak challenged this rejection on several grounds; he cited a decision of the CIC relating to the mercy petitions of three people convicted for the assassination of Rajiv Gandhi. But the MHA did not relent, reasoning that the disclosure would prejudice national security and “violate the privacy of a deceased individual”.
Nayak then filed another application seeking copies of replies the PIO sent to RTI applicants inquiring about the disposal of mercy petitions relating to Kasab. That too was rejected. The PIO said the information is not held in the form that he had requested and that he should supply names and addresses of applicants to pull out the files.
Nayak then filed an appeal arguing that he should at least be allowed to inspect the relevant files, which was rejected. He said, “Clearly neither the MHA nor the President’s Secretariat want to tell the taxpayer what considerations went into the decision on the mercy petition. The taxpayer paid several crores for the upkeep of Kasab, including the use of the gallows, rope and hangman’s services.”
Nayak then filed a request for information on the number of mercy petitions for Afzal Guru with the MHA and copies of all file notings relating to the disposal of petitions and the advice tendered by the Minister for Home Affairs to the President. He also asked for a photocopy of the communication sent to the family of Afzal Guru about the President’s decision. That request too was rejected.
In another application after that, Nayak sought to know the views of successive presidents on guidelines for dealing with mercy petitions, under Article 72 of the Constitution. He asked for copies of correspondence between K. R. Narayanan, A. P. J. Abdul Kalam, and Pratibha Patel, as well as Pranab Mukherjee, with the MHA regarding the guidelines for dealing with mercy petitions.
The application was transferred to the MHA. Its PIO replied in April that the information was not available with MHA. “This reply flies in the face of Dr A. P. J. Abdul Kalam’s assertion in his book Turning Points that he sent several points to the MHA for consideration to amend the Guidelines for Dealing with Mercy Petitions. This included making an assessment of the socio-economic background of the prisoner on death row and his family,” said Nayak.
In an age where information is power, the government is reluctant to empower its citizens.