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Killing it Softly

Killing it Softly

The declining efficacy of responses notwithstanding, the rising popularity and increasing awareness of RTI shows it is here to stay. Experts believe the act is strong enough to withstand any attempts to throttle it, but information commissioners need to be firm.

The process of accessing information should be transparent, timely and trouble-free. Delayed information does not help solve problems but compounds them. Timely information can halt wrong decisions.

Prime Minister Narendra Modi, addressing a two-day national convention to mark 10 years of RTI in October last year

Between June 2014 and August 2015, Noida-based Lokesh Batra, retired Navy Commodore and a veteran of RTI applications, having filed over 600 of them so far, filed a series of over 30 applications with the Prime Minister's Office, the Ministry of External Affairs and various Indian missions abroad, enquiring about the expenses incurred on Prime Minister Narendra Modi's foreign trips since he assumed office in May 2014. The response to a large majority of the applications was a terse : "The bills are still being processed and have not been collated yet." There has been no further response. Contrast this with the reply to a similar RTI query Batra had filed regarding Manmohan Singh's foreign visits over the 10 years he was prime minister. He got a precise figure: Rs 699 crore. What about Atal Bihari Vajpayee's tours abroad while he was the prime minister for six years? Again there was no equivocation: the chartered flights cost Rs 144 crore, he was informed. "It speaks poorly of the PMO that it cannot provide this information," says Batra. "At one point they said the information is exempted under the RTI, when they should be declaring the same suo motu (automatically) as per the rules under RTI Act."

To be sure, the Prime Minister Office's website today lists details of five of Modi's 19 foreign sojourns till date. A sum of almost Rs 78 crore has been spent so far in those trips but details of some of his trips over a year ago, like to Nepal, France, Germany and Canada, are still not available.

This is only one instance of the uncooperative attitude of the current National Democratic Alliance (NDA) government to RTI queries. The same approach is reflected in the rise in the rejection rate of applications in 2014/15 to 8.4 per cent, the highest in eight years. So, while the number of queries has been piling up and the time taken to respond to them increasing, the number of fresh applications filed in 2014/15 showed a decline for the first time in five years. "This could well be a pointer to the frustration of applicants at not getting the information they seek through RTI," says Rakesh Reddy Dubbudu, RTI campaigner, and founder of Factly, a data journalism portal.

Anecdotal evidence further suggests that even information on mundane matters, which by no means can be called 'sensitive', is often now withheld. (See table on number of rejections.) What could be remotely sensitive about revealing the names of MPs and MLAs who had not yet surrendered the subsidy being provided for LPG cylinders, despite Prime Minister Modi's repeated appeals to the well-to-do to do so? Or the names of members of the panel that decided which 20 Indian cities should be included in the Smart City programme? Or the manner in which companies have been conducting their mandatory CSR programmes? Yet all these queries have been stonewalled.

Wajahat Habibullah, Former Chief Information Commissioner

"The law was never intended to be used as a weapon against the government. Unfortunately, the perception is that, which has unnecessarily put the government on the defensive. Even the previous government was on the defensive"

The situation has deteriorated in other ways as well. Central and state Information Commissions overseeing the RTI response process by different government entities have been understaffed and overworked, even as the number of queries have risen. Many of the 28 state-level information commissions do not even report RTI-related statistics proactively. The number of 'first appeals' filed by those dissatisfied with - or denied - replies to their RTI queries is also rising. "The rise reflects people's dissatisfaction with the answers being furnished," says Venkatesh Nayak, Programme Coordinator of the human rights body, Commonwealth Human Rights Initiative (CHRI).

Among Central ministries, the PMO, the Ministry of Home Affairs and the Ministry of Finance get the bulk of RTI queries. All of them have had high application rejection rates - 22 per cent, 16 per cent and 20.2 per cent, respectively - in 2014/15. Curiously, the Ministry of Defence - whose rejection of queries is understandable if national security is involved - had a much lower rejection rate than these three: 15 per cent. In comparison, the PMO's rejection rate during the entire second term of the UPA from 2009 to 2014 was 14 per cent. In 2010/11, the finance ministry's rejection rate was just 10 per cent!

The record of the states varies widely, according to the CHRI. While states like Maharashtra and Karnataka are reasonably meticulous, those such as Uttar Pradesh, Bihar and Haryana perform poorly. "Some states like UP have never even filed an annual report on RTI compliance," says Nayak.

As for Modi's foreign tours, history seems to be repeating itself. In October 2012, when he was Gujarat Chief Minister, RTI activists Rohit Prajapati and Amrish Brambhatt had sought to know how much was spent on Modi's travels to various job fairs within the state. Separately, another RTI activist, Bharatsinh Zala of the NGO, Cranti, had asked for the details of Modi's expenses on his four-day trip to Japan in July 2012. Neither query was answered.

UPA Not Much Better

Following a long campaign by civil liberties' groups, the previous United Progressive Alliance (UPA) government promulgated the RTI Act in 2005. But it soon became uncomfortable with some of its ramifications. "RTI makes every government nervous," says Dubbudu. "The UPA government that introduced it did not really know what it was getting into. The current government wants to clip its wings." Less than a year after the Act was passed, for instance, it sought to exclude file notings from the Act's purview, except when they related to social or developmental matters. However, in the face of strong opposition from social activists, the Bill prepared to this effect was never introduced in Parliament. Again, in June 2013, the Central Information Commission (CIC) passed an order maintaining that the six national parties - the Congress, BJP, CPI, CPI (M), NCP and BSP - came under the ambit of the Act. Once more the government sought to amend the Act to specifically keep political parties out of its ambit, and once more the public outcry against the move forced it to hold back.

Significantly, on the second issue, the NDA government, for all its differences with its predecessor, has struck exactly the same note, arguing in the Supreme Court - in response to a public interest litigation demanding the CIC's order be implemented - that political parties were not 'public bodies', to which alone the RTI Act was applicable. "It's a case of you scratch my back and I scratch yours," says Dubbudu. "When there is a risk of skeletons tumbling out of the closet, political parties develop a remarkable consensus about keeping them stuffed inside." The matter is still to be decided by the court.

Instant Hit

The RTI Act was a radical departure from the Indian bureaucratic tradition of opacity and arbitrariness, and the man in the street soon began using it enthusiastically. Between 2007/08 and 2013/14, the number of RTI queries at the Central level quadrupled to touch nearly one million. In 2014/15, it came down to 755,247. Data on state level RTI applications is scattered across the respective states and hard to collate, but a CHRI study found that in the two years 2012 to 2014, around 2.5 million applications were filed with the Centre and 12 states. It estimated the total number filed in the states in these two years at 4.5-5 million.

Alongside, the number of rejections has also risen, with the CIC turning down 60,127 of them in 2013/14. But the number of first appeals was higher, at 94,945 in the same year. First appeals in Maharashtra and Karnataka were 77,678 and 28,614 respectively. The CHRI estimates the total number of first appeals in the country for 2013/14 at 225,000 - revealing that it is taking a long time for a large number of applicants to get the information they seek.

"RTI is most efficient when the information sought is quickly delivered," says Anugrah Narain Tiwari, former CIC. "If the information comes too late, it often does not serve the purpose of seeking it. The appellate mechanism of first and second appeals has become weak. The first appeal was always weak but the second appeal used to be effective. Now it is struggling because it is over burdened,"

Shailesh Gandhi, Former Central Information Commissioner

"Most authorities have begun to realise the power placed in the hands of citizens and have devised techniques and methods to block this. There is no process for selection of commissioners either. It is an excercise in arbitrariness and patronage. The same holds for many commissions, Lokayuktas and governors"

As the appeals have increased, so has the delay in responding to them. Despite the RTI Act specifying deadlines within which responses should be provided, the number of pending appeals with the CIC alone has more than doubled to over 35,000. At the state level, the figure is estimated at over 75,000. Some of the cases date back to 2008. "I adjudicate 20-22 cases daily," says Sridhar Acharyulu, one of the information commissioners at the CIC. "How many more can I do? Recent applications also have to be tackled. So I end up hearing 10 cases that were pending and 10 that have just been filed."

Appeals have risen precisely because information sought is not furnished in the first instance. "Many queries are not answered immediately, but the information is furnished following the first or second appeal," says RTI activist Subhash Agarwal. "It is true that the authorities are becoming increasingly anti-transparent."

Range of Excuses

On what grounds are queries rejected? The most common reasons are confidentiality clauses, copyright clauses, breach of Parliamentary privilege, contempt of court or privacy of individuals. These are applied as broadly as possible to withhold information. Applications are also turned down if they are in the incorrect format or filed before the wrong government department - a practice that has often come in for criticism.

"The soul of RTI is informality," says Satyendra Misra, CIC from 2010 to 2013. "An applicant should be able to file his query on a plain piece of paper and get the information he seeks. Getting the format right should not matter. Rejecting applications because they have not been drafted properly gives the impression that the commission is not sympathetic to the applicant." He noted that the RTI Act itself was shorn of legal jargon, worded differently from most other Acts. "That is because it was drafted outside the government." (The Act was the initiative of activists.)

"File missing" is another frequently cited reason for not answering RTI queries. The inability of a civil servant to produce a relevant file renders him liable for action under the Public Records Act 1993, but the excuse is still regularly used. "There is a CIC ruling saying this cannot be a valid ruling and yet it is often an alibi," says a CIC commissioner who prefers anonymity. "Record keeping is indeed poor in India, so sometimes this reason may be genuine, but it is still inexcusable."

Anecdotal evidence suggests that the profile of the RTI applicant is sometimes a factor as well. Lawyers, journalists and social activists are more likely to be denied information. "As an ex-journalist and an RTI activist, I'm almost a marked man," says Bangalore-based Sandeep Pai. "It takes me longer to get replies than others. Many times, the same query as mine, filed by another person, has elicited a prompt and satisfactory response, while I have been denied a proper response."

Anti-government perception

The use of RTI has exposed a number of scams over the years. The 2G spectrum scam that rocked the UPA government, the Adarsh Building Society scam in Mumbai that forced the resignation of then Maharashtra Chief Minister Ashok Chavan, the Commonwealth Games scam in Delhi, were all initially brought to light through RTI interventions. Politicians have felt its heat, leading to the perception that it is a weapon wielded against the government. "Every government is inclined towards secrecy," says Tiwari. "Even bureaucrats prefer it, but a permanent civil service is still willing to share information. It is the political executive that is really reluctant. It has become wiser and less ideologically driven than before. Today's politician is brazen about his willingness to destroy the system if it comes in the way of fulfilling his desires."

Anugraha Narayan Tiwari, Former CIC

Former CIC Wajahat Habibullah acknowledges the perception and believes the government is to be blamed. "RTI was never intended as a weapon against the government," he says. "But the government does not see it as an instrument for strengthening governance. It sees RTI queries as akin to extortion, squeezing information out of the government."

RTI has also created its share of controversies. In early March, for instance, the purported reply to an RTI query by journalist Pushp Sharma about recruitment of yoga instructors in government sponsored yoga councils over the last 10 years raised a storm, as it claimed it was official policy to exclude Muslims. The ministry concerned, AYUSH (Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy), claimed the response was fake and that it had yet to reply to Sharma, having merely forwarded his query to the departments and institutes concerned.

Overall, the popularity of RTI queries is a pointer to the enormous general dissatisfaction of the people with the government's functioning. Another damning feature is the high percentage - around 80 per cent - of queries and appeals related to personal grievances, rather than disinterested information seeking. "In countries like New Zealand and Sweden, the number of RTI applications is relatively small," says Tiwari. "It shows the people there are already happy with the level of transparency in government and do not need to ask many more questions. In countries like India and Mexico, on the contrary, RTI applications are very high. If you make the system transparent at the structural level, applications will automatically come down and problem of pending cases will resolve itself."

Satyendra Misra, Former CIC

"The government always wanted to throttle the RTI and various attempts were meant to amend it. Thankfully, those did not go through. The bureaucrats have also become smarter and exploit loopholes in the system. Greater transparency does not benefit anybody in the government"

A transparent system of choosing information commissioners would also help. Currently, most of them are retired civil servants, whose basic orientation towards sharing information is the same as that of serving officers. "Currently, shortlisting of people for selection as information commissioners is generally based on political and bureaucratic patronage," says former CIC as well as RTI activist, Shailesh Gandhi. "Commissioners are selected by a committee consisting of the Prime Minister, the leader of the Opposition and one other minister. Such a committee has no time to understand or evaluate the applicants. Instead, a transparent process for selection would lead to a better environment for RTI Act implementation."

Reasons for Cheer

Still, there is much to cheer about RTI as well. Its scope has been gradually expanding beyond government to sections of the private sector as well. The CIC has ruled, for example, that the privately-owned Batra Hospital in Delhi was answerable to RTI queries, since it enjoyed indirect government subsidy in the form of cheaply leased land. Similarly, a private educational institution like Amity University has been brought within its ambit.

"There are sections in the Act that if interpreted properly expand its reach manifold," says Acharyulu, who gave the landmark ruling in the Batra Hospital case. "We are just waiting for people to file may be a public or a private body. There are exemptions but at the same time there are many provisions that need to be applied properly. Why should you not know what is the exact break-up of tuition fee you pay a private school or the details of the bill a hospital presents you with?"

What is probably needed is greater autonomy for both Central and state commissions and a more cooperative attitude from the executive. The road to becoming one of the top 50 transparent countries is a long one and the continued success of RTI will have a big role in it.

The declining efficacy of responses notwithstanding, the rising popularity and increasing awareness of RTI shows it is here to stay. Experts believe the act is strong enough to withstand any attempts to throttle it, but information commissioners need to be firm.

Published on: Apr 07, 2016, 10:02 AM IST
Posted by: Gurpreet Kaur, Apr 07, 2016, 10:02 AM IST