Chief information commissioner Vijai Sharma talks about identifying the gaps in the RTI Act, improving pendency levels and dealing with ‘vexatious’ requests
Why VIJAI SHARMA
As chief information commissioner, Sharma is the man in charge of implementing the RTI Act, which completed 10 years this month. Appointed after a delay of over nine months, Sharma’s role is significant in the face of concerns that the NDA government is ‘diluting’ the RTI Act. Earlier, Sharma, a Uttar Pradesh cadre IAS officer, was a member of the principal bench of the National Green Tribunal and a secretary with the Ministry of Environment and Forests.
Shyamlal Yadav: There is a perception that the government wants to weaken the RTI. What is your experience of working with the previous government and this one?
No, there is no change because the RTI Act, the system itself, is channelised and has been given a certain direction. RTI is widely accepted as a lifeline. It is a no-frills, cost-effective and efficient lifeline. The RTI Act itself is very simply enacted and as it completes 10 years, it will bring out issues that are of importance. The tenth year also gives us the opportunity to take stock of our experience and set the stage for the future. There is scope for improving implementation (of RTI) for which we have to build the infrastructure. We are following up with the government to construct a building where every commissioner will be able to sit, where there will be a library, an auditorium. That will help strengthen our autonomy. Right now, we are divided into two campuses.
The other important aspect is that we should have the wherewithal to provide immediate relief to somebody if required. We are also trying to be able to build our own institutional grid. On August 28, we invited all state information commissioners for a meeting where we discussed whether implementation is in step with the legislative intent, talked about identifying gaps in the RTI law, apart from building of capacities, getting into the jurisprudence of a few things, etc.
Shyamlal Yadav: You say there has been no change in attitude of the government, but how do you explain the delay of over nine months in your appointment as CIC which has led to a pendency of some 12,500 cases /complaints before you?
Before I took over, we were working as usual. When I took charge, I was anyway generally chairing all the commission meetings. And you’ll see soon how well we have been able to control the mounting pendency. The statistics will improve very soon.
Ritu Sarin: We’ve heard this government is very wary of RTI disclosures, file notings and leaks to the media. Are you noticing a trend where bureaucrats are writing less and less detail in file notings and giving staccato instructions on file? Is the fear of disclosure changing the art of writing?
No. Exemptions from disclosure clauses are fairly clear. If there is a problem with any disclosure, the information provider can resort to those exemptions. But times have changed tremendously in the last 10 years. It was unthinkable for annual confidential reports to be in the hands of the recipient. But now you can get almost anything unless it is something very, very particular. And the system has become quite institutionalised now. It is a multi-tiered system: the top tier, which is a little closer to the systems we read about in the newspapers, a mezzanine level that is the first appellate authority, and the PIO who is working at the ground level and is close to the information seeker. The information seeker and the information provider may be sitting in the same office. When the Act came, in 2005, maybe there was hostility or hesitation. When the employees themselves started using (the Act) for their personal and establishment matters, it became more universal in usage. The question now is not so much whether there is a hesitation, it is more whether the information seeker is getting the relevant, usable information, and whether the information is timely. And that is what we intend to discuss… also how to rationalise the RTI Act further. So we are looking at the gaps.
P Vaidyanathan Iyer: What are the gaps you hope to improve? In Maharashtra, for example, we hear of RTI activists using the Act as a tool for extortion.
The canvas is huge. I’ll touch on one aspect — frivolous and vexatious applications. What is vexatious to a certain respondent is not vexatious to another. So it is a little difficult being clinical and pigeon-holing what is vexatious and what is not. The second aspect is that there should be a legal filter. A legal filter implies there is inherent objectivity. And why should we not filter out what clearly (should be), and then you might say that in a certain department, this would be okay, and in another this would not be the case. The three military wings are within the RTI, so is the Ministry of Environment and Forests and so is Panchayati Raj. These are very open ministries in any case. For instance, the Rural Development Ministry has all those rural employment programmes. The third would be how to deal with the boutique, fashionable variety (of cases) for things that are not into citizen welfare. PhD research scholars send dozens of applications to banks, asking all kinds of questions. Some banks give replies, others say they can’t because they just don’t have the resources. And then the appellant argues one bank has given him a reply, why can’t the other.
There are no ready-made, clear solutions. What was being done almost entirely by the government agencies is also being done by the private sector. Some want airline passenger safety information, etc. These are not government agencies. Our law and our system work on what has been enacted and how the state has been defined.
Ritu Sarin: What is the scope of RTI to include private bodies which have public dealings?
It is clearly defined that the RTI Act is about public authorities. These authorities perform public functions, which are now (also) performed in the PPP mode, by the private sector, even old-age homes, orphanages, etc. Many countries are clear that RTI is a fundamental, human right. So the competent authority of that country has the power to declare that a private entity carrying out public functions be covered under the RTI if it is notified. But our system is confined to public authorities, and the public authority is defined.
No one has touched the RTI Act. There are windows for the dissemination of information, if you look carefully. So the citizen can access information a regulatory authority has about a private entity, if, under the law enforced, the regulatory authority has that information. How strong are our administrative agencies that regulate bodies which provide public services, be it buses, airlines or hospital services? Surely there must be some way to get that information. About the Bhopal incident, we read about it in the local papers. Nobody thought whether it was a government entity or non-government entity. The nineties was the golden age of PILs. Today, you have an Act. So these are some of the questions we grapple with. These are all jurisprudential questions.
Unni Rajen Shanker: The first reaction to an application is to use a technicality to reject it, like, saying you are not a citizen but part of an institution.
Shyamlal Yadav: One of the IITs wrote to me that since I am employed with The Indian Express, I can’t be treated as a citizen of India.
We had a lot of these technical things in the beginning. Now the stream of RTI applications coming in is so huge that people do not want to study why they should not be given the information. You provide the information. Don’t go into the technicality too much, ask for citizenship. The idea is to give the information. Not giving information on the basis of technicality is now a thing of the past.
Shyamlal Yadav: Who misuses RTI? You said a few researchers do it, some say lawyers and people in the corporate sector misuse it. What is your experience?
There is a trend of disgruntled employees filing applications driven by grudge or vendetta. This is not what the RTI system was meant for. But the law doesn’t disallow them from filing RTI applications. The basic idea was that those who are in need of information should be able to access it. If it is also helping in redressal of grievances, then it’s very good. But it was not meant – really speaking – for addressing the problems which should have been resolved by departments.
Shyamlal Yadav: Of the 250-300 cases you dispose off in a month, how many are a misuse of RTI?
I will explain. There are three types… One, the employee who genuinely needs the information, but the department is not giving it to him. He takes the route of the RTI Act, and rightly so, and gets that information. The other ones are very, very routine, like – how have you calculated the interest for my house building advance? And they say, look, surely you must be having all the accounts, why don’t you calculate it yourself? But he’s insistent and one fine morning he gets that information also. If he has not got it and he comes to the commission, we say bring the file and give him the calculation sheet. There are some which you can describe as problem areas where an unknown employee who is a habitual RTI applicant and may have filed applications in such large numbers that it might astound you. It is unfair on the system and it is unfair on the information provider, and that information has been given many times earlier.
Then there’s another category which says I want this information because when I was working in so and so capacity in 1982 or 1978… and I want the papers. Huge departments like Railways didn’t have the system then of maintaining such records. It becomes quite a burden. We want to make the RTI Act purposive and effective, for which efficiency is required. You don’t want the information channels to be clogged by frivolity or flippancy because the genuine information seeker should be able to get that information.
Shalini Nair: Why is the judiciary often allowed to get away by saying it doesn’t come under the purview of the RTI Act?
All public authorities come under the RTI Act. This is what the law says.
Shyamlal Yadav: The Supreme Court is yet to accept that it is a public authority under RTI Act. Cabinet notings, political parties — all top offices — are going against RTI. In this situation, what do you think is the future of RTI?
All public authorities, which include all government agencies, come under the RTI Act. But the law also provides for exemption from disclosure clauses. If the information provider makes a case that this information is coming under any of these exemption from disclosure clauses, then they have a case. In that instance, there would be the testing of the exemption from disclosure clauses vis-à-vis the public interest; whether public interest should override, whether that would be paramount over the exemption from disclosure clause.
Amitabh Sinha: The commission had ordered that all the information that has already been provided should be put out in the public domain on departmental websites so that it drastically reduces the number of fresh applications coming in. What happened to that order?
Compliance is a big issue. Compliance, building capacities, low capacities are big issues… You are talking about Section 4 of the Act. It is about suo motu, voluntary disclosure, so that one does not not need to file an RTI application for information which is already being supplied. But many said that such information would not have the nature and scope which the RTI applicant wants. Let me give you an example that should be there on the website. A huge number of people ask about career prospects for an MSc in forensic medicine. A university website should have this information. People ask what kind of loans can I get under this scheme? What is the procedure of the passport? Who are the beneficiaries of so and so subsidy? It is under the legislation of that particular rural employment programme, it should be on the web. So Section 4 is a very good idea. And I would say that it should not be confined to the 17 aspects mentioned under it. It should be far wider and not mechanical. It should not be a normal auditor kind of thing or a tick box approach. It has to be done with a lot more care and feeling that, yes, the entire information that public wanted is there. That is part of the evolution of RTI.
Appu Esthose Suresh: Now that it’s 10 years since the RTI was enacted, do you think it’s time for a study to decide what are the go-areas and no-go areas and how we can reform the Act? Do you also think there is a need for starting a service, like you you have Indian Information Service? It’s evolving as a very specialised institution so do you feel the need to build a body?
Before this Act, there were these ideas that build a body and have a cadre system. That did not find favour for many reasons, one of them being you don’t need another bureaucracy. When I was involved with the National Green Tribunal Act, the original idea was that it would be the national environment tribunal. Then gradually it was decided to bring in forests and wildlife. But you can’t bring in everything; you can’t make it so huge. Many of the experts on whom we place our reliance about the environment, for example, came from the non-government sector. They had clear views like should we have CNG or should we have low sulphur diesel? The RTI does not have such dialectic because everybody is for RTI and it does not have those kind of technicalities. It is run by the citizens on the basis of their disaggregated demand. They run that kind of a formation from a huge number of departments.
Another important thing is that the RTI Act – while it has given you a channel and it has given you an instrument – you can’t use it to light up every corner. It’s a huge world in which we’re living. We just discussed that these are public authorities and these are government agencies but what about those who are a little bit of public but not fully?
Let me give you an example. There was this appellant who said that she was working in Delhi and went to Mumbai for some work. When that appellant was going over a bridge, there was a collision and something that shouldn’t have happened, happened. The railways there rushed her to a private hospital and that private hospital put an implant and now she wants the details. The private hospital has their own point of view because they say this was one of their projects which have a little bit of an IPR (intellectual property rights). But she says she needs them for these reasons and these reasons are very good. So you have to take calls and these are all very individual, human calls. That’s what the RTI is about and whether you have a cadre or you don’t have a cadre, when the rubber meets the road, you take a call. You don’t have to necessarily read every provision; the general idea is to do the right thing. So we don’t have to deal with that cadre.
Shyamlal Yadav: Which departments are most resistant to RTI?
This has to essentially function like a tribunal – it should be simple. The main distinction between a tribunal and the court system is that the tribunal should have everything very simple – the logic should be explained simply. For everything, you don’t want to take the support of the precedent. Also you can’t be very technical that so and so has not asked the question in the RTI application. Maybe as a supplementary he wants to know; maybe the person who drafted the RTI application was not a very good draftsman. So the system has to run with the element of the homespun – it has to be comfortable and functioning, it cannot be very heavy set. So sometimes when departments become a little too technical, we have a problem.
Transcribed by Dipankar Ghose, Mahender Singh Manral and Aranya Shankar