here is not much one can say that is positive about the Right to Information (RTI) Act and its implementation. The cynicism that one might have tried to hold in check a year ago is validated, as one realises that the entire system that has been created under the RTI Act seeks to silence the people, and deny them information, while protecting guilty officers. It has been a year since the enactment of the Act, and my expectations are far from having been realised. The right to information relies on two very important nerve centres: (i) the process of filing the RTI application, and (ii), the information commissions.
Firstly, the process of moving an RTI application has to be simplified. The phone-in system has been instituted in Bihar, and should now be spread to the rest of the country. It is still in the early stages, and the software is being developed. Other states should learn from Bihar's experience and institute such a mechanism. There needs to be political will: we had recommended this system to the Bihar government and earlier we had advised the department of personnel and training among others. So far, it is only Bihar Chief Minister Nitish Kumar who has implemented the suggestion for a simplified phone-in application system.
Phone lines in Bihar
When a common person attempts to file an application under the RTI Act, the official supposed to take the application may not be in. And, thus, the applicant may have to make several trips at the cost of his work and other business. He or she may have to spend time and money on these trips to government offices. The officials may well refuse to take the money that is to be deposited with the application in cash. The whole process of filing an RTI application can well turn out to be cumbersome, intricate, and time-taking.
It is not as though there will be reduced accountability with a phone-in system. Not only can an application be phoned in, but first and second appeals can be made over phone as well. It will then be the responsibility of the information commission to see and route the complainant's query to officials for correct answers.
It is not just illiterate persons, but all persons unfamiliar with the nitty-gritty of government functioning who can benefit from putting RTI on phone. The drafting of the RTI application does not come through education, or general knowledge; even journalists, amongst others, need the assistance of RTI activists, to determine in whose name the draft amount is to be made while moving an application under the RTI Act.
This system will also become a means of documenting the number of applications being made, the number in which information is received within 30 days, the penalties imposed, etc.
There are 40 telephone exchanges in Bihar. The RTI lines were set up for two exchanges in Patna to begin with in January this year. All the urban exchanges have been covered by now. By the month of March, the plan is that the system will be in place for the whole of Bihar. In the first two days itself 50 applications were phoned in.
The information commissions
Secondly, the information commi-ssions are equally important since if the process of filing an application is simplified, the PIO may fail to provide the information. In such a case the complainant is left with no option but to turn to the Information commission through an appeal. unfortunately, information commissions have appointed from among either the weakest or most corrupt officials. They work as agents of the government, and instead of extending their protection to the people, they are inclined to favour the guilty officials and protect them. This is why, when it comes to enforcing the right to information, the information commissions are the weakest link.
Information Commissioners themselves often do not have faith in the RTI Act, and view it as a tool adopted by meddling NGOs
Appointment of commissioners
When it comes to the appointment of persons as information commi- ssioners, it is necessary to keep in mind the following criteria:
The person should be competent when it comes to judicial matters: so a person who has served as a judge, or practiced as an advocate will be very effective.
The persons appointed should also be honest, and implement the law. Just because a journalist, or retired judge has been appointed, none can be sure of fair and unbiased results. In fact, the performance of the information commissions in states where journalists, retired judges and others have been appointed is at par with the performance of other state information commissions, manned by retired bureaucrats.
Functioning of the CIC
The CIC is in a complete mess. First, at the administrative level, the registry is malfunctioning to the extent that if you file a case, there is a chance that it will get lost. There have been instances where files have been lost, and the appellant has then had to repeatedly file their cases.
Second, the information commi-ssioners are professionally incompetent to handle the cases. It is shocking to note that while information commissioners in Uttar Pradesh and HC judges hear 50 to 60 cases a day, the commissioners at the CIC hear on an average, 3 or 4 cases a day. This is only one of the reasons that cases are piling up at the CIC and cases are coming for hearing seven months after being filed. Another reason for this backlog is that the unwillingness of information commissio-ners to impose penalties on the guilty officers encourages the PIOs to refuse requests for information at the first level. This means that a good portion of applications ultimately graduate into appeals before the CIC.
The orders of the CIC are disturbing for many reasons. It has passed several orders wherein one or both parties have not been heard, in complete violation of principles of natural justice. In fact, the CIC very rarely passes orders punishing the guilty officials. Decisions to give penalty are few and far between. The CIC must have decided over 2,000 cases by now, of which a negligible percentage (about 5 or 6 decisions) impose any penalty on officers. With such misguided soft approach of the CIC guilty officers merrily go scot-free. This can create doubts in people's mind about the efficacy of the RTI Act.
With every additional judgment, the CIC further expands the exceptions to the right to information and constricts the right to information. information commissioners themselves often do not have faith in the RTI Act, and view it as a tool adopted by meddling NGOs to interfere in governmental processes and create trouble. They feel great animosity towards persons who have filed several RTI applications, even though each application is made bona fide in public interest.
State information commissions
Most of the criticisms above are true in case of most state information commissions as well, which suffer from the additional malaise of political pressure. There is political pressure at the state level, which means that information commissioners cannot function freely, and have to tailor their judgments to suit the tastes of politicians. It is not as though politicians have the power to remove them, yet information commissioners bow to political pressure.
The power of state information commissions is curtailed to the extent that there has been a case where a chief minister called an information commissioner reprimanding him for all the decisions that portrayed his government in a poor light. Between implementing the law, and keeping the government happy, Information Commissions are walking a thin line, and sadly, often err in favour of the government.
Mentality of bureaucrats
Bureaucrats have been conditioned to conceal, as opposed to reveal, information. They are not accustomed to providing information freely. This will undergo change with RTI. The 'good' bureaucrats, who have nothing to hide, and thus, nothing to fear about, will welcome this change. These are officials who are interested in the further development of this country. The RTI applications indicate the loopholes, the glitches within the system and â they provide an opportunity to officials to rectify problems by making them more aware.
The 'bad' among bureaucrats, who are either corrupt, or simply have a non uncooperative attitude, will be compelled to function under the RTI Act due to the penalty clause, regardless of their feelings towards the Act. The maximum penalty of Rs.25,000 is sufficiently large to act as a deterrent. Even if an official is made to pay a fine, he or she will still have to furnish the information. The information commission has the power to appoint another official as PIO to deal with extremely recalcitrant, non-cooperative PIOs.
The RTI helps bring information, including file notings, to the light. The right to information will in fact aid honest officers express their unbiased opinions
A tool to harass bureaucrats
While it has been argued that RTI can be used to blackmail government officials, it must be noted that blackmail is a criminal offence. There would be no scope for blackmail if the concerned official had no skeletons in his cupboard. There is no need to 'protect' corrupt government officials from 'victimisation'.
It has also been argued that requests for information will clog, and ultimately jam, the bureaucratic machine. While this argument might hold good in theory, there are 68 countries whose people have a legal right to information, and whose bureaucratic machinery continues to function. In India, there are nine states that have had right to information legislations for the past ten years, with no reported hiccups.
It is not necessary for the PIO to furnish the information in a form that it is not available in. If a person applies for information that is not available in the required format, then the government does not need to spend time or money preparing a response to such an application. The applicant can inspect the files that hold all the information, and collate it on his own.
There is a view that file notings should not enter the public domain. This view is based on the erroneous idea that if the interested parties can access what the officials have opined, then this will adversely affect the unbiased and free manner in which they would otherwise take decisions. But interested parties don't need a legal right to information to access it in the first place. The right to information helps bring information, including file notings, to the light. The right to information will in fact aid honest officers express their unbiased opinions.
The information commissioners, and their decisions have played a pivotal role in watering down the right to information. If RTI is working today, it is despite these Information Commissioners. If information is obtained under the Act, it is obtained at the very first instance from those PIOs who still consider the threat of a penalty to be tangible.