Central Information Commission (CIC)

‘Vacancies, Backlogs, Culture of Impunity’: Dismantling the Transparency Watchdogs

For the law to continue to meaningfully empower people, it is critical that information commissions are robust and fiercely independent.

Nineteen years after the Right to Information (RTI) Act was implemented, there is clear evidence that governments are whittling down peoples’ right to access information by rendering information commissions ineffective. Under the RTI Act, information commissions are the final appellate authority and are mandated to safeguard and facilitate people’s right to information. They have wide ranging powers, including the ability to direct disclosure of information which governments find inconvenient to share or would prefer to keep under wraps.

Satark Nagrik Sangathan (SNS) accessed data using the RTI Act on the functioning of the 29 information commissions across the country. Here are the five key points emerging from the report, which highlight the dismal state of the transparency watchdogs:

Vacancies

Vacancies in information commissions result in a large backlog of appeals and complaints, leading to long delays in disposal of cases.

Out of 29 information commissions, seven were non-functional for varying lengths of time last year. These included the commissions in Jharkhand, Telangana, Tripura, Goa, Chhattisgarh, Madhya Pradesh and Uttar Pradesh.

Additionally, five commissions were functioning without a chief information commissioner (CIC) and eight were working at reduced capacity with inadequate number of information commissioners (ICs), despite a large backlog of appeals and complaints.

Maharashtra did not have a CIC and had six vacancies. The Central Information Commission was working with only the Chief and two ICs.

Backlogs

In the 29 information commissions across the country, more than 4 lakh appeals and complaints were pending as of June 30, 2024.

With a backlog of 1,08,641 cases, the Maharashtra state information commission (SIC) had the highest number of cases pending in the country. This was followed by the Karnataka SIC with more than 50,000 cases and Tamil Nadu with a backlog of 41,241.

Backlog of Appeals & Complaints in Information Commissions
S. No	Information Commission	Pending as of June 30, 2024
1	Maharashtra	1,08,641
2	Karnataka ①	50,277
3	Tamil Nadu ②	41,241
4	Chhattisgarh	25,317
5	Bihar ③	25,101
6	Uttar Pradesh	24,035
7	CIC	22,774
8	Odisha	20,235
9	Telangana	14,162
10	Madhya Pradesh ④	10,849
11	Andhra Pradesh	10,809
12	Punjab	9,175
13	Jharkhand ⑤	7,728
14	West Bengal	7,556
15	Rajasthan	7,028
16	Kerala	6,455
17	Gujarat	6,131
18	Haryana	4,191
19	Arunachal Pradesh ⑥	1,190
20	Uttarakhand	951
21	Himachal Pradesh	716
22	Assam	445
23	Tripura	265
24	Goa	152
25	Manipur	42
26	Meghalaya	23
27	Nagaland	15
28	Mizoram	3
29	Sikkim	2
	Total	4,05,509
Note: Pending as of 10-9-2024 31-10-2023 23-08-2024④10-9-2023 ⑤May 2020 when the SIC became defunct ⑥8-11-2023

Estimated time for disposal

The estimated time for disposal of a fresh appeal or complaint would be more than one year in 14 information commissions. The SNS report shows that the Chhattisgarh SIC would take 5 years and 2 months and the SIC of Bihar, would take 4 and a half years. This means a fresh appeal or complaint would be disposed of in the year 2029 in the two commissions at the current rate of disposal!

Inordinate delays by commissions in disposing appeals and complaints violate the basic objective of the RTI Act. Long delays in commissions render the law ineffective for people, especially for those living at the margins, who are most dependent on government services (and therefore need information the most).

Also read: ‘161 Applications Received for 8 Vacant Information Commissioner Posts at CIC’: RTI

Estimated time required for disposal of an appeal/complaint
S. No.	Information Commission	Estimated time for disposal of appeal/complaint filed on July 1, 2024
1	Chhattisgarh	5 years & 2 months
2	Bihar ①	4 years & 6 months
3	Odisha	3 years & 11 months
4	Arunachal Pradesh ②	3 years & 4 months
5	Tamil Nadu ③	2 years & 5 months
6	Punjab	2 years & 4 months
7	Kerala	1 year & 11 months
8	Maharashtra	1 year & 11 months
9	West Bengal	1 year & 10 months
10	Karnataka④	1 year & 9 months
11	Andhra Pradesh	1 year & 8 months
12	CIC	1 year & 4 months
13	Himachal Pradesh	1 year & 2 months
14	Gujarat	1 year & 1 month
15	Nagaland	10 months
16	Assam	9 months
17	Uttar Pradesh	9 months
18	Meghalaya	6 months
19	Haryana	6 months
20	Goa	6 months
21	Rajasthan	4 months
22	Manipur	4 months
23	Uttarakhand	3 months
24	Mizoram	2 months
25	Sikkim	Less than 1 month
26	Jharkhand	Defunct
27	Telangana	Defunct
28	Tripura	Defunct
29	Madhya Pradesh	no reply
Note- Estimated time for disposal of appeal/complaint filed on ①24-08-2024 ② 9-11-2023 ③1-11-2023 ④11-9-2024

Inadequate penalties on erring officers

According to the SNS report, commissions did not impose penalties in 95% of the cases where penalties were imposable.

The RTI Act empowers the commissions to impose penalties of up to Rs 25,000 on erring public information officers (PIOs) for violating the RTI Act. This penalty clause is one of the key provisions of the Act that gives the law its teeth. However, our experience in India suggests that even when ICs are appointed, a majority of them are either retired government officials or people who enjoy political patronage. Consequently, they are often reluctant to act against violations of the transparency law.

The report shows that a penalty was imposed in just 3% of the cases disposed of by the commissions. Non-imposition of penalties in deserving cases sends a signal to public authorities that violating the law will not invite any serious consequences. This destroys the basic framework of incentives built into the RTI law and promotes a culture of impunity.

The SIC of Uttar Pradesh imposed the highest amount of penalty (Rs 4.85 crore), followed by Chhattisgarh (Rs 1.83 crore), Karnataka (Rs 93.95 lakh) and Haryana (Rs 38.18 lakh).

Details of penalty imposed by ICs (July 2023 to June 2024)
	Information Commission	No. of cases where penalty was imposed	Amount of penalty imposed
1	Uttar Pradesh	1,970	4,84,77,000
2	Chhattisgarh	not provided	1,83,00,000
3	Karnataka	464	93,95,000
4	Haryana	155	38,18,250
5	Uttarakhand①	182	16,98,004
6	Arunachal Pradesh	43	14,50,000
7	Rajasthan	748	13,58,000
8	Bihar	59	13,30,000
9	Punjab	102	12,22,000
10	Gujarat	115	6,43,500
11	Kerala	67	4,74,000
12	Andhra Pradesh	21	2,34,000
13	Himachal Pradesh	11	1,77,000
14	Nagaland	6	86,500
15	Manipur	2	50,000
16	Goa	6	31,000
17	West Bengal②	1	25000
18	Assam	1	10,000
19	Jharkhand	0	0
20	Meghalaya	0	0
21	Mizoram	0	0
22	Sikkim	0	0
23	Telangana	0	0
24	Tripura	0	0
25	CIC	Info not provided	Info not provided
26	Madhya Pradesh	No reply	No reply
27	Maharashtra	Info not provided	Info not provided
28	Odisha	Info denied	Info denied
29	Tamil Nadu	No reply	No reply
	Total	3,953	8,87,79,254
Note: For the period ①1-4-2023 to 30-5-2024 ②1-6-2023 to 30-11-2023

Compliance reports

Finally, the report shows that the transparency watchdogs do not have a shining track record in terms of their own transparency and accountability towards the citizens.

The RTI Act obligates each commission to prepare a “report on the implementation of the provisions of this Act” every year which is to be laid before parliament or the state legislature.

The performance of many commissions on this front was found to be dismal, with 18 of 29 ICs (62%) not publishing their annual report even for 2022-23.

The SICs of Andhra Pradesh and Telangana have not published their annual report since the constitution of the respective SICs in 2017 following the bifurcation of the erstwhile state.

The SIC of Bihar has not published its annual report for more than 6 years (since 2017-18).

Nearly 33% of them have not made their latest annual report available on their website.

Availability of Annual Reports
	Information commission	Year of last publication of annual report	Available on website
1	Andhra Pradesh	SIC does not publish annual report
2	Arunachal Pradesh	2022-23	No
3	Assam	2022-23	Yes
4	Bihar	2017-18	Yes
5	Chhattisgarh	2023	Yes
6	CIC	2022-23	Yes
7	Goa	2020-21	No
8	Gujarat	2022-23	Yes
9	Haryana	2020	Yes
10	Himachal Pradesh	2021-22	No
11	Jharkhand	2018	Yes
12	Karnataka	2020-21	yes
13	Kerala	2022-23	No
14	Madhya Pradesh	2022	Yes
15	Maharashtra	2021	Yes
16	Manipur	2022-23	No
17	Meghalaya	2021	Yes
18	Mizoram	2022-23	Yes
19	Nagaland	2022-23	No
20	Odisha	2020-21	Yes
21	Punjab	2021	Yes
22	Rajasthan	2023	Yes
23	Sikkim	2021-22	Yes
24	Tamil Nadu	2020	Yes
25	Telangana	Not published since SIC constituted in 2017
26	Tripura	2020-21	No
27	Uttar Pradesh	2021-22	Yes
28	Uttarakhand	2022-23	No
29	West Bengal	2022	Yes

The RTI law has empowered people in India to meaningfully participate in democracy. Every year, 4-6 million RTI applications are filed across the country.

The law has been used extensively in the last 19 years to hold governments accountable for corruption and lapses in the delivery of essential services and secure access to basic rights. It has also been used to question the highest authorities of the country on their performance, decisions and conduct.

For the law to continue to meaningfully empower people, it is critical that information commissions are robust and fiercely independent. The RTI Act was passed in the country as a result of a strong people’s movement. People need to come together once again to protect their fundamental right to information and ensure that the transparency watchdogs perform their mandated role.

Anjali Bhardwaj and Amrita Johri are transparency activists associated with Satark Nagrik Sangathan and the National Campaign for Peoples’ Right to Information.

Disclose Cabinet Note, Annexure Related To Constitution Amendment for EWS Quota: CIC

The Commission dismissed the social justice ministry’s decision to invoke Section 8(1)(i) of the RTI, calling it “grossly inappropriate”.

New Delhi: The Central Information Commission (CIC) has directed the government to disclose the Cabinet note along with all relevant correspondence and annexure related to the 103rd Constitution amendment which paved the way for 10% reservation for Economically Weaker Sections (EWS) of society.

The Commission dismissed the argument of the Union Ministry of Social Justice and Empowerment citing Section 8(1)(i) of the RTI which exempts from disclosure Cabinet papers including records of deliberations of the Council of Ministers, secretaries and other officers calling it “grossly inappropriate”.

The Section allows that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken and the matter is complete or over, but the ministry still denied the information.

“…no justification was provided for invoking the said exemption. In fact, the CPIO [Central public information officer] merely reproduced the provision of Section 8(1)(i) in his reply to the RTI Application. The said conduct of the CPIO is viewed adversely by the Commission as it is suggestive of his non-application of mind in dealing with matters under the RTI Act,” information commissioner Saroj Punhani noted.

Also read: The Moral and Logical Failures of the Proposed 10% Quota for EWS

Applicant Venkatesh Nayak of the Commonwealth Human Rights Initiative had challenged that denial on grounds that the Bill has already been passed and the president has also accorded the assent on January 12, 2019, leaving no pending matter related to enactment of the law. “…Appellant believes the matter pertaining to the enactment of the Constitution Amendment Bill is complete. The implementation of the 1% quota for EWS sections of society is also underway,” Nayak argued before the Commission.

He also relied on the order of the then-information commissioner Shailesh Gandhi on June 26, 2012, when he had directed the government to make public all Cabinet notes relating to proposals for new Bills that are to be tabled in parliament and also display them on the website of the department within seven days of tabling the Bill in the house.

Punhani pulled up the social justice ministry’s CPIO (who handles RTI applications) for obstructing the right to information of the appellant by invoking Section 8(1)(i) of the RTI Act to deny the information. “The CPIO is severely admonished for the inappropriate denial of the information to the Appellant and he is warned to ensure that due diligence is exercised while dealing with the RTI applications in future,” she said.

Also read: ‘Perverting the Constitution’: The Case Against 10% Reservation

Nayak said barely 24 hours before the date and time of hearing, the CPIO sent him a mail showing attachments of 526 scanned pages. “However, I was unable to access them on their Google drive. I brought this to the notice of the CIC during the hearing. The CIC also tried to access the documents, but permission was denied,” he said. Punhani directed the CPIO to provide all the documents on a working Google drive link to Nayak.

“The Commission has noted the prayer of the Appellant regarding the suo motu disclosure of the Cabinet note pertaining to the Constitution (One Hundred and Third Amendment) Act, 2019 in light of provisions of Section 4(1)(c) & 4(1)(d) of the RTI Act as well as Section 8(1)(i) of the RTI Act which prescribes that the material on the basis of which Cabinet decisions are taken should be made public after the decision has been taken,” she said in the order which has been sent to the secretary, Ministry of Social Justice.

(PTI)

Warrant Issued Against Haryana Official for Not Replying to RTI Query

Last month, a study by civil society groups said that while the RTI Act empowers information commissions to impose penalties against officers who deny or delay information, this power is used sparingly.

New Delhi: Less than a month after former Supreme Court judge Justice Madan B. Lokur sought stringent punishment for officers who delay information under the Right to Information Act, the State Information Commission of Haryana issued a bailable warrant against an officer in Gurugram for not replying to a query on unauthorised colonies.

Taking a tough stand against the delay in providing information to RTI applicants, the SIC last month issued bailable warrants against the District Town Planner (enforcement) of Gurugram on a complaint by an applicant, Ramesh Yadav, who sought information on the no-objection certificates issued by the official concerned for registration of land and the action taken against mushrooming of illegal colonies.

The applicant alleged that the SPIO-cum-DTP (Enforcement) Ved Prakash Sehrawat issued around 250 NOCs in contravention of the law to facilitate coming up of unauthorised colonies. Yadav also claimed that in this way around 700 unauthorised colonies were allowed to come up in Gurugram.

Earlier, in August this year, the State Information Commission had directed Sehrawat to facilitate inspection of relevant records in the case at his office. But after Yadav complained to the commission via email on November 14 that he had not been provided with any information, the commission ordered the issuance of a bailable warrant against Sehrawat in the matter the following day.

The SIC order said Sehrawat “neither furnished any information to the appellant nor replied to the show cause notice” and asserted that “this shows the lacklustre attitude of SPIO”. Moreover, since Sehrawat also did not attend the commission hearings, it further noted that this “shows he has no regards for effective implementation of the RTI Act”.

Also read: Former SC Judge Seeks Punishment for Officers Who Delay Information Under RTI

It then posted the matter to March 11, 2020 while directing Sehrawat – who claimed that there was some miscommunication and that he had already furnished the reply to Yadav – to file his reply to the RTI application within two weeks.

Incidentally, last month, a ‘Report Card on the Performance of Information Commissions in India, 2018-19’ prepared by Satark Nagrik Sangathan (SNS) and Centre for Equity Studies (CES) noted that commissions were usually “extremely reluctant to impose penalties on erring officials for violations of the law.” It stated that while the Act empowers information commissions to impose penalties of up to Rs 25,000 on erring Public Information Officers (PIOs) for violations, they have been found to be imposing them sparingly.

The report said “penalty was imposed only in 4% of the cases in which it was potentially imposable,” it said. In such a scenario, the order for issuing a bailable warrant against an erring PIO has sent across a strong message on compliance with the RTI Act norms.

Incidentally, soon after this ‘Report Card’ was released, a public meeting on the implementation of the RTI Act was organised by SNS where Justice Lokur said the testimonies of RTI users highlighted the importance of access to information in people’s lives. He said when an ordinary person is at fault, the government files a case and puts them in jail. But when a government officer (wrongfully) stops someone’s pension or is at fault, similar action is usually lacking.

He then urged the chief information commissioner Sudhir Bhargava to ensure that if complaints are received against officers, some penalty under the law should be imposed so that they know that wrongful acts will not go unpunished. The action by Haryana SIC is in line with that instruction.

Centre Assured Information Commissioners Won’t be Downgraded, DoPT ‘Draft’ Suggests Otherwise

RTI activist Anjali Bhardwaj has questioned the absence of an official statement from the government.

A week after Indian Express reported that a draft note prepared by the Department of Personnel and Training (DoPT) under the Prime Minister’s Office had downgraded the salaries and tenure of the Chief Information Commissioner (CIC) and the Information Commissioners (ICs) of the Central Information Commission and the state information commissions, there has been no official word on the matter.

‘Government violating pre-legislative consultation policy’

This measure, RTI activist Anjali Bhardwaj of Satark Nagrik Sangathan argued, went against the grain of the norms laid down by the pre-legislative consultation policy that was passed in February 2014, a few months before the Modi government assumed power.

Ideally pre-legislative consultation, she said, should take place in all such matters. “Either the government should say that it does not believe in such consultations or information should be released in a transparent manner to invite comments,” she said.

Bhardwaj lamented how that information about the draft was partially leaked. “It is typical of how this government functions without placing necessary documents in the public domain,” she said.

‘A very dangerous way, leads to speculation’

Bhardwaj said “this is a very dangerous way of doing things. People are left guessing and there is speculation, but no one knows what the actual suggestion or draft states.”

Bhardwaj also said that when the government is bringing in something which defines people’s fundamental right to information or to know, there should be a discussion before it. However, she added, “discussions have not been happening.”

Also read: RTI ‘Report Card’ Laments Pending Cases, Vacancies in Information Commissions

Final draft of RTI Amendment Bill 2019 differed from initial reports

Even when the RTI Amendment Bill 2019 was brought, the rights activist recalled that “it was in a hush-hush manner and there was no discussion before it.”

In that case too, Bhardwaj recollected how some parts of the Bill were released selectively to the media but later on, it turned out that these were markedly different from what the Bill finally proposed.

“For example, it was stated that the decisions pertaining to salary and perks of the commissioners of the State Information Commissions would be taken by the states and of the Central Information Commission by the Centre, but in the final proposal the Centre was empowered to decide on the SICs too,” she said.

Representative image. Illustration: The Wire

Rules not framed despite passing of law

In the immediate case, Bhardwaj said that when the central government came under pressure that they had not framed the rules with respect to the amendments to the RTI Act made this year, they gave out some information through an “unverified report”. I

t was in July that the Centre amended Section 13 and Section 16 of the RTI Act to provide that the appointment of the CIC and ICs would be “for such term as may be prescribed by the Central Government” and that their salaries, allowances and other terms of service would be “prescribed by the Central Government.”

With there being no official word on the draft from the Centre, Bhardwaj said, “Now we are left guessing. The Centre has neither come forward to state if the contents of the report are true or not. When some people enquired with the ministry, the officers refused to give any answers”.

Also read: The Government Is SLAPPing Down and Intimidating Central Information Commissioners

She said that if the report was indeed correct, it would show that the government’s stand and the DoPT minister’s assurances in parliament that there was no intention to downgrade the salaries and tenures of information commissioners were at a variance.

CIC salary at par with cabinet secretary’s

According to the report, the draft proposed giving the CIC and ICs of the Central Information Commission ranks equal to those of the cabinet secretary and secretary to the government of India respectively. It called for treating the CIC as a “first among equals”. They earlier enjoyed salaries and tenures equivalent to that of the chief election commissioner.

The draft also sought to do away with the earlier five-year term for CIC and ICs as was provided in the Right to Information Act of 2005. Quoting “sources”, the report said that the DoPT had proposed reducing the tenure of CIC and the ICs to three years.

In the case of the State Information Commissions, the report said that the draft had proposed pay and perks equivalent to the secretary to the government of India to the CIC and that of the additional secretary to the ICs.

On finalising the rules, it said, that the DoPT would need to take the approval of the Prime Minister, who heads the department.

Wordplay Helps PMO Dodge Release of Details on Black Money, Corruption Cases Under RTI

After initially calling the query ‘generic and vague’, the PMO said finding details on corruption cases would involve a “thorough search of numerous files” and would “disproportionately divert resources”.

New Delhi: The reading of the word “disposed” – used by the Central Information Commission in its order – as “dismissed”, first by a single bench and then by a division bench of the Delhi high court, appears to have saved the Prime Minister’s Office (PMO) from the task of divulging information in corruption cases against Central ministers and black money, which the Narendra Modi government claimed to have brought from abroad.

The original application in the case was filed by whistleblower IFS officer Sanjiv Chaturvedi in August 2017 under the Right to Information Act, 2005.

Details sought of corruption cases

Through the application filed with the PMO, Chaturvedi, who was also awarded the Magsaysay Award for exposing corruption by government functionaries, sought details of corruption complaints against Union ministers, the inquiries conducted into these complaints and the final action taken by PMO. His query pertained to cases from the first three years of the NDA government’s first term – from June 1, 2014, to August 5, 2017.

The application also sought information about the quantum and value of black money retrieved from abroad and deposited into the accounts of citizens, along with efforts made by the PMO in this regard.

Chaturvedi specifically sought information related to action taken on his complaint against the then Union health minister J.P Nadda, which was submitted to the prime minister and on which the PMO had twice sought a detailed reply from the health ministry on October 8, 2014 and February 10, 2015.

PMO said query was ‘generic and vague’

The PMO in its reply on October 9, 2017, refused any to divulge any information on the corruption complaints and termed the query “generic and vague”. As for the queries on black money, the PMO said that the “request made is not covered under the definition of information as per Section 2(f) of RTI Act”.

Also read: The Modi Government Is Hiding Information About Black Money Inside a Black Hole

Chaturvedi challenged this assertion of the PMO in the Central Information Commission. In October 2018, the CIC rejected the rationale provided by the PMO and ordered it to give a “specific reply/information” within 15 days.

After CIC’s directive, PMO gives new reasoning

In its response to the CIC order, the PMO said finding details on corruption cases would involve a “thorough search of numerous files” and would “disproportionately divert the resources”.

The PMO said:

“This office receives complaints against various union ministers/ high level functionaries from time to time …… after taking the needful action, the records are not kept in any single master file or collated and kept in one place …….. in view of above, the collation of information sought will require the undertaking of thorough search of numerous files. Such an exercise will disproportionally divert the resources of the office from the normal discharge of its functions and attract the provisions of Section 7(9) of Right to Information Act”.

Section 7(9) of the RTI Act says that in the case of disproportionate diversion of resources, information may not be given in the format being asked by the applicant.

Regarding the query on the issue of black money, the PMO remained silent on the quantum of it while refusing to disclose the details of the efforts made by citing Section 8(1)(h) and Section 24 of RTI Act. It claimed that such a disclosure would affect the investigations underway in this regard. Section 8(1)(h) provides an exemption from disclosure if it impedes investigation while Section 24 excludes certain intelligence and security organisations from the ambit of RTI Act.

CIC said PMO’s new reply “not correct”

Chaturvedi again filed a complaint before the CIC in November 2018 challenging the PMO reply. The matter was taken up for hearing in April and June 2019. In its order passed on June 18, 2019, the CIC clearly said that the new rationale provided by the PMO for the denial of information in connection with the minister’s corruption complaints ‘is not correct’.

Also read: CIC Directs PMO to Reveal All Details of Black Money Brought From Abroad

However, the CIC remained silent on the issue of the quantum of black money while agreeing with the new reasoning provided by the PMO under Section 8(1)(h) for denial of information regarding efforts made in this regard.

Regarding the complaint to the prime minister against Nadda, the CIC declared that information has been provided to the appellant as per available records.

HC single bench said CIC “rejected” plea, whereas it was “disposed”

Chaturvedi took the matter to the Delhi high court in July 2019. The petition was dismissed on the very first day by a single bench of Justice V. Kameshwar Rao which stated that, “surely a complaint under Section 18 is not the remedy and the CIC has rightly rejected the same”.

However, the CIC order of June 18, 2019, had used the word “disposed” and not “dismissed” in paragraph 13 and had stated that “with the above observations, the non-compliance petition is disposed off”.

The single bench order further stated that the “petitioner is within his right to seek such remedy as available in law challenging the communication dated November 1, 2018”. Since it is well known that all orders passed by CIC are challengeable before the Delhi high court under Article 226/227 of the constitution, the question is if the court overlooked the fact that the CIC had subsequently given a final finding on Chaturvedi’s petition challenging the November 2018 communication of the PMO.

Division bench of HC too dismissed plea on first hearing

When the single bench order was challenged before the division bench of the Delhi high court, it also endorsed the earlier judgment of the single bench and again dismissed the petition the same day without issuing any notice. In paragraph five of its order, the division bench also used the word “dismissed” regarding the CIC order dated June 18, 2019, which had actually used the word “disposed in terms of above observations”.

The division bench further stated that if the appellant was aggrieved by the PMO’s communication dated November 1, 2018, he was “always at liberty to approach the appropriate forum in accordance with law”.

Petitioner’s lawyer raises concerns at the silence on black money

As these two orders of the Delhi high court have gone in favour of the PMO, it no longer needs to reveal information on either the corruption cases against Central ministers or the quantum of black money recovered from abroad.

Also read: Sanjiv Chaturvedi: Modi is Not the Anti-Corruption Messiah We Were Waiting For

Meanwhile, Chaturvedi’s counsel Sudershan Goel, who had argued this case before the HC division bench, expressed surprise at what the “appropriate forum” was for appealing a CIC order. He claimed it was trite law and that the remedy lies only with the high court under Article 226 /227 against orders of the CIC.

The Delhi high court had in its judgment in Suhas Chakma ruled that the CIC cannot review its own orders while in this case the CIC first directed the PMO to disclose all the information in its order of October 2018 and when PMO took de novo grounds, it reviewed its own orders in June 2019, on the issue of black money.

Goel also expressed surprise as to why the high court kept silent on the issue of the quantum of black money and how, on the issue of corruption complaints against central ministers – in which the CIC on both occasions gave orders in favour of the applicant and rejected the excuse given by the PMO – and the disclosure of information of corruption complaints, the information commission’s orders had been unduly nullified by the high court by the incorrect usage of the word “dismissed” instead of “disposed” regarding the CIC order.

RTI ‘Report Card’ Laments Pending Cases, Vacancies in Information Commissions

Despite a Supreme Court directive in February 2019, a study released on the 14th anniversary of the enactment of RTI Act says that the Centre has failed to make timely appointments to commissions.

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.

Also read: Over 30,000 RTI Appeals and Complaints Are Pending Before the Information Commission

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.

Central Information Commission headquarters. Photo: cic.gov.in

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.

Also read: The Government Is SLAPPing Down and Intimidating Central Information Commissioners

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.

Also read: Sorry Mr Modi, Bureaucrats Aren’t the Only Ones Capable of Adjudicating RTI Appeals

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.

Also Read: ‘RTI Bill Shrouded in Secrecy, How Will it Enhance Transparency?’ Ask Former CICs

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.”

RTI Amendment Bill, Degree Row: Modi’s Victories Against Transparency Movement

Even as the opposition has suggested that there is a link between the Modi degree row and the passing of the RTI Amendment Bill, the government managed to get another adjournment in the DU degree case.

New Delhi: On a day when the Rajya Sabha passed the RTI Amendment Bill, 2019 despite strong opposition from RTI activists who call it an attack on the transparency movement by the Narendra Modi government, there were actually not one but two victories for the prime minister.

In parliament, he managed to pass the Bill that brings the Central Information Commissioners (CICs) and State Information Commissioners (SICs) under the Centre’s command by providing it control over their salaries and tenures.

And in the Delhi high court, through government counsels, the centrally-managed Delhi University got yet another adjournment in a plea filed by it against a 2016 CIC order by M. Sridhar Acharyulu which allowed inspection of the Bachelor of Arts results of 1978 – the year Modi claims to have graduated from Delhi University.

Opposition, activists believe degree row is behind RTI Amendment Bill 2019

While many opposition leaders and RTI activists believe that a primary reason for the Modi government to crack the whip on CIC was to restrict the flow of such information, a look at the manner in which the case has dragged in the Delhi high court for over two-and-a-half years gives credence to such belief.

During the debate in Rajya Sabha on July 25, two senior Congress leaders – Abhishek Manu Singhvi and Jairam Ramesh – spoke directly about this link. Singhvi referred to Acharyulu’s order in the degree case, saying he issued the order that “related to the age of the highest executive of this country, the hon. prime minister.”

Also read: Over 30,000 RTI Appeals and Complaints Are Pending Before the Information Commission

“Shortly, thereafter,” though, Singvi added, “the HRD segment of Mr. Acharyulu’s jurisdiction was taken away from him. This is the disclosure which came about the age. There are other disclosures about degrees. Now, is that the reason the Government wants to control such institutions?”

Jairam Ramesh too saw a motive behind the amendment. He said, “There are five cases which have propelled the government to bring forward these amendments”, adding that the first was that “the CIC ordered disclosure of the prime minister’s educational qualification; the matter is in the Delhi high court today, as I speak, or maybe it has already been heard today. This is the first embarrassing case for this government.”

During the debate several other opposition members also referred to the degree case.

CIC allowed inspection of DU’s 1978 BA records

In his order of December 21, 2016, CIC M. Sridhar Acharyulu allowed inspection of Delhi University’s 1978 BA degree records. Hearing the RTI application of activist, Neeraj, he overturned the DU central public information officer’s (CPIO) decision to deny the sought information on the ground that it would invade the privacy of students and that the information “has no relationship to any public activity or interest”.

The CIC held that the university could not provide any evidence or explain how such information causes any “invasion of privacy”.

Also read: ‘RTI Bill Shrouded in Secrecy, How Will it Enhance Transparency?’ Ask Former CICs

High court stayed CIC order in January 2017

Delhi University challenged the CIC’s 2016 order in the Delhi high court. It claimed that the order violated the RTI Act’s provision pertaining to privacy (Section 8(1)(j)) and that that it was in possession of the information being sought in a fiduciary capacity under section 8(1)(e) of the Act.

Appearing for it, Additional Solicitor General Tushar Mehta and standing counsel for the central government, Arun Bhardwaj, submitted that the CIC order had “far-reaching adverse consequences for the petitioner and all universities in the country, which hold degrees of crores of students in a fiduciary capacity”.

On January 24, 2017, Justice Sanjeev Sachdeva stayed the CIC order. The court also issued a notice to petitioner Neeraj.

In 30 months, case saw matter going before five judges but little progress

Since then the case has not made much progress.

On April 27, 2017, Justice Sanjeev Sachdeva of the Delhi High Court adjourned the matter for four weeks saying “learned counsel for the petitioner prays for time to file rejoinder affidavit.” He ordered listing of the matter over six month later saying “renotify on 16-11-2017”.

However, the University of Delhi did not utilise this time to file any rejoinder.

Three to six month adjournments have been a norm

On November 16, 2017 the matter was listed before Justice Vibhu Bakhru. He wrote that “a request for an adjournment is made on behalf of the learned counsel for the petitioner. It is also seen that the petitioner has not filed its rejoinder despite sufficient time. Accordingly, its right to do so stands closed.” But the matter got further delayed by three months and was listed on February 28, 2018.

On February 28, 2018, the matter came before Justice Rajiv Shakdher, who issued the notice in the case and ordered that “reply, if any, be filed within three weeks” and listed the matter for May 22, 2018.

On May 4, 2018 Justice Shakdher issued another order to “issue notice to the non-applicants/ respondents”. He directed that “reply, if any, be filed before the next date of hearing”, which remained May 22.

Posters at the forum against the RTI amendment. Photo: Gaurav Vivek Bhatnagar

ASG’s absence, ‘paucity of time’ among reasons for adjournments

On May 22, 2018, the matter was adjourned for another three months. Justice Shakdher in his order said: “The matter was passed over, once, when Mr Tushar Mehta, learned ASG (Additional Solicitor Genera), was not available”.

On August 23, 2018, Justice Shakdher adjourned the case by another five-and-a-half months. He wrote: “It is already 5:05 p.m. The matter cannot be taken up due to paucity of time”.

Judge wanted to look at related provision of law, moved out before next hearing

On February 4, 2019 the matter came up for hearing before Justice Anup Jairam Bhambhani. Taking up a clutch of five similar petitions, he noted that “In all these matters, the main question that arises for consideration is as regards the interpretation of Section 8(1)(e) and 8(1)(j) of the Right to Information Act, 2005.”

Stating that “the information sought in these cases relates to the results of examinations, details of such results, educational qualifications and other related matters pertaining to students,” Justice Bhambhani ordered that “while considering the interpretation of the aforesaid two statutory provisions, the court will also look at other related provisions of law, as may be relevant and material for the decision.”

Also read: Amending the RTI Act Is About Cutting Troublesome Citizens Down to Size

He then listed the matter for final arguments on April 23, 2019 and directed that pleadings in these matters be completed within six weeks, wherever not already done so.

On April 23, 2019 the case, however, did not land before Justice Bhambhani who was to “look at other related provisions of law” but came up before Justice V. Kameshwar Rao.

DU got crucial adjournment before Lok Sabha polls

Justice Rao noted that “request for adjournment is made on the ground that Mr Tushar Mehta, learned SG is out of station”. He directed that the matter be listed three months later on July 25, 2019. This was the period when the Lok Sabha elections took place.

So, the University of Delhi succeeded in ensuring that the case stayed in abeyance till after the polls.

On July 25, when the matter came up for hearing before Justice Rao, an ASG told the court that SG Tushar Mehta was busy and sought an adjournment. After this, the matter was adjourned till November 28.

Note: In an earlier version of this story, the ASG in the last paragraph was erroneously identified as Madhavi Divan. Ms Divan has informed The Wire that she has not been briefed on this case and never went to the high court that day.

Over 30,000 RTI Appeals and Complaints Are Pending Before the Information Commission

Activists believe the primary reason for the high number of pending appeals is that several posts of information commissioner are currently vacant.

As the Union government succeeded in getting the Right to Information (Amendment) Bill passed in the Rajya Sabha on Thursday, there are nearly 32,000 cases of appeals and complaints pending before the Central Information Commission (CIC). According to the CIC’s website, as of July 23, 2019, 28,442 appeals and 3,209 complaints were pending before the body. In total there are 31,651 cases pending.

This is the highest number of pending appeals in the past two-and-a-half years. On April 1, 2017, the number of pending cases was 26,449. RTI activists and former information commissioners believe that the primary reason for such a large number of pending appeals is that several posts of information commissioners are lying vacant.

The CIC and the State Information Commissions (SIC) are the designated appellate organisations that provide information under the RTI Act. Including the chief information commissioner, there are 11 posts of information commissioners within the CIC. Yet at this time, only seven of those posts have been filled.

The government had issued an advertisement to fill the four vacant posts on January 4 this year, but in the past seven months, nobody has been appointed.

On April 26, 2018, a petition urging for the timely appointment of the four information commissioners was filed in the Supreme Court. At that time, there were more than 23,500 pending cases. Since then, the pending cases have increased by 8,000.

A view of Supreme Court of India in New Delhi. Credit: PTI

On April 26, 2018, a petition urging for the timely appointment of the four information commissioners was filed in the Supreme Court. Photo: PTI

One of the petitioners was RTI activist Commodore Lokesh Batra, who expressed concern regarding the pending cases, “It is very surprising that although on the one hand the government is claiming to strengthen the RTI Act, on the other hand it has failed to appoint information commissioners.”

He said that in the past as well, four commissioners had been appointed only after an order from the Supreme Court. Most appointments take place as a result of court orders.

Batra added, “According to the rules, the process of appointing a new commissioner should begin some months before the tenure of the outgoing commissioner ends. But the government does not follow the rules. It does not appoint anyone unless a court orders it to. This is an attempt to weaken the RTI.”

Also read: ‘RTI Bill Shrouded in Secrecy, How Will it Enhance Transparency?’ Ask Former CICs

A public interest petition was filed in the Supreme Court in 2018 by RTI activists Anjali Bhardwaj, Amrita Jauhari, and Lokesh Batra urging for the timely appointment of information commissioners and for greater transparency in the process of appointing new information commissioners.

In a significant decision issued by the Supreme Court on February 15 this year, the court ordered that all vacant posts be filled within six months. The bench comprising Justice A.K. Sikri, Justice Abdul Nazeer and Justice Subash Reddy ordered that, in both the CIC and the SICs, the process of finding a new commissioner be initiated two months before the end of the outgoing commissioner’s tenure.

Regarding the posts lying vacant currently, the court said that if the process of finding new commissioners has commenced, then the posts should be filled within two to three months, but if it has not been initiated, then the posts should be filled within six months.

In addition, the Supreme Court has urged for a higher degree of transparency in the process of selecting and appointing information commissioners.

Anjali Bharadwaj, a member of the National Campaign for Right to Information (NCPRI), a non-governmental organisation working towards the improvement of RTI, said that the government should strengthen the RTI law by appointing more information commissioners but instead, it is trying to amend the law in order to make the RTI a puppet of the government.

Bharadwaj also said:

“The government wants to amend the RTI Act in order to dictate the salaries and tenures of state and central information commissioners. It is clear that the government wants to deprive the information commissions and the commissioners of their independence so that they do not take any decision that goes against the government’s will or release any information to the public that the government does not want released.”

With the RTI Amendment Bill passed in the Rajya Sabha, the Centre now has the power to decide the salaries and tenure periods of state and central information commissioners. Previously, according to the RTI Act, the tenure period of an information commissioner was five years or upon reaching 65 years of age, whichever came first.

Also read: Amending the RTI Act Is About Cutting Troublesome Citizens Down to Size

Previously according to the RTI Act 2005, the chief information commissioner and information commissioners get paid the same as the chief election commissioner and election commissioners respectively, while the state chief information commissioner and the state information commissioners get paid the same as the election commissioner and the chief secretary of the state government respectively.

Venkatesh Nayak, a member of the Commonwealth Human Rights Initiative organisation and an RTI activist, says that the government is completely suppressing the democratic process and trying to weaken the RTI, which is a constitutional right.

He added that the public was not consulted at all in the conception of the RTI Amendment Bill and that the government should prioritise the appointment of information commissioners, not the weakening of the Bill.

Several former as well as current information commissioners spoke out against the RTI Amendment Bill and called for the vacant posts to be filled.

Former central information commissioner Shailesh Gandhi addressing the press conference along with other former CICs Yashovardhan Azad, Deepak Sandhu, MM Ansari, Sridhar Acharyulu and Annapurna Dixit. Also sitting with them is (second from right) RTI activist Anjali Bhardwaj. Photo: The Wire

Former chief information commissioners Sridhar Acharyulu and Yashovardhan Azad have said that the RTI Act was passed after much deliberation and discussion in 2005. Even then, a provision for the appointment of a deputy commissioner, who would work on the instructions of the Central government, was proposed.

The former commissioners said that the standing committee had rejected the provision because it would effectively reduce the status of information commissioners to that of clerks working for the central government.

The Right to Information Act was passed in the parliament on June 15, 2005. This was after the act had been sent to a standing committee for deliberation and discussion. It was first proposed that the chief information commissioner’s salary would be equal to that of a Central government secretary and the information commissioner’s salary would be equal to that of a joint or additional secretary.

Also read: Opposition, Activists Join Hands in Protest Against RTI Amendment Bill

The standing committee’s report made it clear that the committee had taken the matter of the information commissioners’ salaries very seriously. The committee had said, “The Information Commission is an important institution under the [RTI] Act. It is vital that the Information Commission function with absolute independence.”

This is why the committee had suggested that information commissioners be considered at par with election commissioners and the Information Commission at par with the Election Commission.

Sridhar Acharyulu and Yashovardhan Azad also said that “the government is ignoring all the suggestions that had been made by the standing committee after much deliberation and is now saying that the RTI Act was passed in haste. This is utterly wrong. In reality, the new RTI Amendment bill has been brought in haste without any discussion, and its passing would severely reduce the freedom of the information commissioner.”

They also added that the RTI Act is like a ray of light in the darkness. Especially in rural India and amongst the poor, the RTI is a boon and many derive hope from the ten-rupee RTI applications.

Translated from the Hindi original by Karan Dhingra.