Rights & Wrongs

Updated: Apr 29 2007, 05:30am hrs
As citizenspeak goes, the Right to Information (RTI) Act means great people power. Its the kind that India hasnt ever had in the past. Weve had several laws drafted for us which most of us dont know of and cant understand. But thanks to social activists and the media, the RTI Act is probably the only one the common man says is mine.While earlier, he was considered lucky if he got what was rightfully his, whether it was his passport or ration card, now, RTI is the key with which he gets most doors open.

Its been one and a half years now since its inception on October 12, 2005. The babus have, under the law, ceased to be guardians of official secrets and the hoi polloi is having its way like never before by asking a few smart questions.

Thousands of RTI applications have been sent to Public Information Officers (PIOs) of the appropriate government departments, information has been given within 30 days and people have gone back satisfied. As Magsaysay-award winner and Mazdoor Kisaan Shakti Sangathan representative, Aruna Roy says: While stories of the use of RTI by people in urban areas occupy our newspapers, the extensive use of the RTI Act by ordinary people in thousands of villages across India is less known. Whether it is to do with wages, employment, rations, health or land deeds, Roy feels it is RTI that has made the happy difference. One remarkable application of the RTI, she feels, has been in the social audit of the National Rural Employment Guarantee Act (NREGA) works (See box). It has involved thousands of people in mass campaigns, applying for information, verifying records and ensuring the transparency of muster rolls. While the urban critics of the NREGA point to the stories of frauds as evidence of its failure, what they fail to perceive and, therefore, acknowledge, is that it is the use and success of the RTI, through social audit in NREGA, that has brought this corruption to light, she says with pride.

So thats when information is asked for and given. But when information is not obtained and the appellate machinery is used, the story is a sad one to tell... In fact, it can be a pain in the neck.

Under the law, the PIO has to reply to an RTI application within 30 days. If the reply is not given within 30 days, the applicant can go on first appeal to the PIOs senior, who is the appellate authority (AA). If the applicant draws a blank here too, he has the right to approach the final appellate authority, which is the Chief Information Commission (CIC). Thats where he could get stuck because of a hole in the Actthere is no deadline given to the CIC to get back to the information seeker. This is why cases keep hanging and Information Commissioners (there are five at the Centre right now, apart from those in the states, who form the State Information Commission) have an eight-month waiting period before they deign to hear a case. Its a deficiency in the Act which commissioners are obviously making good use of.

Some Milestones

The Cl C ruling that the Union Public Service Commission(UPSC) has to disclose cut-off marks and individual marksheets to civil service aspirants is a landmark judgement that affects all civil service aspirants.
A citizen has the right to seek information contained in file notings unless the same relates to matters covered under Section 8 of the RTI Act. Till this decision, file notings in government offices were considered confidential information.
Power distribution companies will be brought under the Act as they are substantially funded by the government and come within the meaning of public authority. So, they are bound to have a PIO now.
When applicant Divya Raghunandan asked the Department of Biotechnology for data concerning toxicity and allergenicity of transgenic brinjal, okra, mustard and rice, she was refused on the grounds of commercial confidence and trade secrets. This was overruled by the CIC which said that information on genetically modified food products should be available to all citizens.

Ask the Chief Information Commissioner and a former bureaucrat, Wajahat Habibullah about this, and he admits there is a long queue (which a click on the CIC website would reveal too), but defends it thus: When we started the commission one and a half years ago, we were pretty much on virgin territory. This was a new Act and we needed time to understand it. We didnt know whether we were to function as bureaucrats or judges. Our administrative systems had to be put in place. Today, we are far more systematic and our commission is accessible to the public. We are also looking at cases at a much faster rate. Prof M M Ansari, an Information Commissioner with the CIC, adds: Not only is there no stipulation as to by when we need to dispose of our cases, the fact is that the commission is currently working at half its strength. While the Act says there should be 10 commissioners, right now we are just five.

Ask him whether people are truly making use of the Act, Habibullah says the awareness about the Act has grown, thanks to the intervention of social activists and the media. Initially, neither the citizen nor the officers in government knew about the powers of the Act. But with growing awareness, PIOs are falling in line and information is being furnished.

But another Magsaysay-award winner and founder of Parivartan, Arvind Kejriwal begs to differ. He believes and so do most acknowledge, that the RTI Act is perhaps the only law in the country today which penalises a government officer for not doing his duty. Under the Act, for every days delay beyond the specified 30 days, a PIO is liable to be fined at the rate of Rs 250 per day, up to a maximum of Rs 25,000. So far, if the records of the CIC are examined, there have been a total of only 27 cases on which penalties have been imposed, out of the thousands that have come to the commission since October 2005. (This is apart from what happens in the state commissions, which have a different set of numbers to crunch). When the Act came into being, most in the government were afraid of penalties being imposed for not furnishing information. But in the last one-and-a-half years, the word is spreading fast that the CIC isnt interested in imposing penalties. PIOs go round saying to citizens: you can go on appeal. Nothing is going to come of it. So the fear of being penalised isnt there, adds Kejriwal. And thats where the Act gets defeated.

There is a further fall-out to this, says Kejriwal. One of the causes for pendency (the long waiting list of cases) is that because the commissioners are not imposing penalties, people are coming back with fresh appeals. The cases are building up as a result.

There are other issues too. Many times applicants have been fobbed off with answers like We cant find the file or it has got lost. There is another grievance. The Act states clearly that there isnt any format for filing an application. This is to facilitate uneducated citizens who might not know the nitty-gritty of writing complicated applications. But often, their requests are rejected because they are not in the proper format. When these issues were raised, Habibullah said: Yes, cases of files getting lost have come to us. So now we are telling the officer concerned to show cause and that an FIR should be lodged for the disappearance of office property. He goes a step further to say: Sometimes a PIO tells us he asked the officer of the concerned department to furnish information that was sought by the applicant, but that he did not get it. So now, instead of penalising the PIO, we fine the officer concerned, who then becomes the deemed PIO.

Then there are cases of dismissal of cases without a hearing. Both Ansari and Habibullah admit there have been such cases but they cite the following reason for it: Sometimes applications come to us which state Why have I not got my promotion; When will so and so decision be taken or even absurd ones like Has the British Raj come back to India Now for questions like this, we dont really need a hearing, which will further delay matters. We just direct the concerned department to furnish the information which might be useful for the applicant. After all, we are an Information Commission. We can help people get information. We cant settle their disputes, says Habibullah.

There is yet another accusation against the commissionthat it is soft on government officers. As yet another Magsaysay-award winner and social activist Anna Hazare, who is currently touring 110 tehsils in Maharashtra to spread awareness about RTI, says: The commission, both at the Centre and in the states, has become a resting ground for ex-bureaucrats. All their lives they have been protecting their lot, so how do you expect them to be strict with officers now We need people from the judiciary, military and independent professionals who have an expansive view of India to be commissioners. Not former bureaucrats. But he is hopeful that as people all over the country are made aware of the Act, there will be a better tomorrow. About 70 % of corruption in government can be reduced by exercising RTI. Sarkaar ki naak dabne se, mooh khul jayegi, Hazare says emphatically.

So, adding to the potholes that plague the RTI journey is the government and its characteristically lackadaisical nature. As Kewal Semlani, who has fought several RTI cases in Maharashtra, points out: According to Section 4 of the RTI Act, every public authority (read: government-funded organisation) must maintain a website and records which give details of its functioning. Unfortunately, most of these public authorities dont. This goes against the voluntary disclosure norm. So people have to apply to these public authorities for information, which they could have otherwise got freely had it been made available on the internet.

But amidst this blame game, where the RTI Act sometimes becomes a casualty, there are innumerable victory stories of both individuals and organizations. There is a great deal of fine-tuning to be done though. After all, the RTI Act rests on four legscivil society, government, social activism and the information commission. There is no use blaming any one of them. It could be a case of differing perceptions too. As Gujarat Information Commissioner, R N Das, says: Section 25 (5) of the RTI Act talks about the spirit of the Act, which is tilted towards the citizen. Yes, evidence has to be evaluated neutrally. But when it comes to arguments, there could be a philosophical divide. Its better to help the citizen, who might not know the intricacies of the law, rather than the representative of a public authority, who would know its finer nuances. That is an individual decision that every commissioner has to take.

Perception or otherwise, its a great feeling to know there is a law today that has the power to remove the shroud of secrecy that has, for decades, surrounded most government activity.

A mixed bag

Following a complaint of low wages being paid for construction work under the Sarva Siksha Abhiyan, an RTI application was filed by Kheema Ram of village Nardas Ka Guda in Rajasthan, seeking muster rolls for the work, from the panchayat officer. It recorded unequal wages for men (Rs 50) and women (Rs 40), for equal work.The minimum wage is Rs 73.When Kheema Ram went to the labour department with the muster roll copies, the panchayat was directed to pay both men and women Rs 73 per day. The order was carried out.
B K Mishra from Ara, Bihar, filed 32 applications in various government departments seeking information about bogus bank accounts, tax evasion matters, etc. Neither the PIOs nor the AAs responded to his application. He filed a second appeal in the CIC, which directed the public authorities to respond. They didnt. The CIC finally rejected Mishras case on the grounds that the address given seemed incorrect and that his handwriting was illegible.
P K Gupta from Agra, UP, filed an application on July 13 last year with the PIO. There was no reply. He then tried the AA who too did not respond. He filed his second appeal to the CIC on September 9, 2006. Citing that it wasnt in the right format, the application was returned. When he sent it back in the format specified, it was returned once again, saying four copies should be sent. He sent four copies, but they were returned, this time without a reason. Gupta made repeated phone calls and after more than two weeks a CIC office bearer admitted his application had been wrongly returned. But instead of accepting the appeal, CIC advised Gupta to file a fresh application.
80-year-old Kanni Ram of Ajmer and his wife hadnt been getting their free quota of grains for 11 months. The ration dealer stonewalled them for a while when asked and then said the grains had finally stopped coming. Kanni Ram filed his application on October last year, asking why he hadnt received his grains; who was the responsible officer. The next day, 110 kg of grains were delivered at his doorstep with the request that he withdraw his application.