Despite Supreme Court ruling, govts are increasingly preferring retired civil servants to head information commissions

triExcerpts from the report “State of Information Commissions and the Use of RTI Laws in India: Rapid Study 3.0 Based on the Annual Reports of Information Commissions (2012-14)”, prepared by research team headed by Venkatesh Nayak of the Commonwealth Human Rights Initiative, Delhi:

On June 20, 2015, the Right to Information Act (RTI Act) completed a decade of existence. The text of this law was published in the Official Gazette June 21, 2005 and several provisions such as the appointment of Public Information Officers, First Appellate Authorities and Information Commissions and the requirement of improving records management, preparing for the proactive disclosure of a deal of information [Section 4(1)(b)] and the exemption for 18 security and intelligence organisations became operational immediately. Other provisions detailing the procedures through which people can access information or file appeals and complaints against delays in and denials of access became operational 125 days later in October.

Composition of and Vacancies in the Information Commissions

Sections 12(2) and 15(2) of the Central RTI Act permit the establishment of Information Commissions comprising of one Chief Information Commissioner and a maximum of ten Information Commissioners at the Central and State level, respectively. A total of 50 posts were created in 27 Information Commissions established during the years 2005-06.

In 2014-15, a total of 142 posts of Information Commissioners (including the Chief Information Commissioners) had been created across the country. A little more than 20% of these posts (Chief ICs and ICs) were lying vacant at the time of writing this report. In July 2014, the vacancy figure was considerably lesser at 14.28% (of 140 posts). At the time of writing this report, the total number of Information Commissioners serving across the country is 111- down from 120 in 2014.

As it was last year, the maximum number of vacancies (4) is in Jharkhand. Gujarat and Tamil Nadu with 3 vacancies each are close behind. Uttar Pradesh and Punjab have the largest number of serving SICs (10 each) followed by Andhra Pradesh and Haryana (9 each) and the Central Information Commission and Maharashtra (8 each).

Despite the bifurcation of the erstwhile State of Andhra Pradesh into the successor States of Andhra Pradesh and Telangana, Telangana has not constituted its SIC yet. The SIC of Andhra Pradesh is hearing appeals and complaints submitted by residents of Telangana as well.

Background of Chief Information Commissioners

Sections 12(5) and 15(5) of the Central RTI Act contain a list of fields of experience and expertise from which candidates – men and women – may be chosen for filling up the posts of the Chief Information Commissioners and Information Commissioners at the Central and State level, respectively. The fields of expertise mentioned in both laws are – law, science and technology, social service, management, journalism, mass media and administration and governance.

Four State Information Commissions namely, those of Goa, Odisha, Tamil Nadu and Uttarakhand were headless at the time of writing this report as the State Chief Information Commissioners had retired (SCICs). The remaining 25 Information Commissions, including the Central Information Commission, are all being headed by retired civil servants. More than 3/4ths (76%) of the Chief Information Commissioners across the country are retired IAS officers. This proportion has gone up from 69% in 2012 to 74% 2014.

It appears that the Governments are increasingly preferring retired civil servants over candidates with other specialisations referred to in the twin RTI laws despite the Supreme Court advising the Governments to look beyond that pool in 2013. No retired High Court judges or persons with specialisation in journalism, mass media, science and technology or management are currently serving as Chief Information Commissioners anywhere across India.

Background of Central and State Information Commissioners

Only 12.6% of the Information Commissioners (11 out of 87) serving across the country are women. In 2014 there were 12 women ICs across the country. There are two women ICs in Andhra Pradesh. While the number of women ICs in Haryana has gone up from 1 to 2, there are no women ICs in Punjab and Tripura unlike in 2014. The appointment of the woman IC in Gujarat was quashed by the High Court for not having any of the specialisations specified in Section 15(5) of the Central RTI Act.

A little more than a third of the women ICs (4 of 11) are retired civil servants. A similar proportion of women ICs are from social service background. Two women ICs from Andhra Pradesh and Tamil Nadu have a specialisation in law. The Woman IC from Andhra Pradesh is also an academic specialising in public administration. 42.5% (35 of 87) of the Information Commissioners across the country are retired civil servants belonging to either the All India Services or the State Civil Services. In 2014 this proportion was almost 50% and much higher at 53% in 2012. The proportion of retired bureaucrats appointed as ICs is slowly declining. Uttar Pradesh has the unique distinction of not having any retired career civil servant serving on the State Information Commission (the SCIC is a retired IAS officer though).

Almost 23% (20 of 87) ICs across the country are either retired judges or practised as advocates or have taught law as a subject at an academic institution. In 2014 this proportion was 21%. A little more than 17% of the Information Commissioners across the country have a specialisation in journalism or the mass media. Most ICs with these specialisations are serving in Uttar Pradesh (7).

The number of ICs with a specialisation in social service or social work has more than doubled in 2015 (from 3 to 7) as compared with the figures reported in 2014. This is a steady increase since 2012 when only 1 IC was from social service background.

How many RTI applications were filed across India?

Data culled out from the Annual Reports of the CIC and 12 SICs indicates that a total of 24.77 lakh applications were filed in those jurisdictions in a given year between 2012 and 2014. In 2013 the total number of RTI applications that we reported was 20.39 lakh based on data available up to the time of writing that report. As some more ICs have published their reports for that period subsequently, the revised figure stands at 24.94 lakh.

By extrapolating this data it can be conservatively estimated that about 45-50 lakh RTI applications may have been filed in various jurisdictions across the country during a 12-month period between 2012 and 2014. The actual figure may be closer to 50 lakh because several States where RTI is being used very prolifically, such as Andhra Pradesh, Bihar, Uttar Pradesh, Tamil Nadu and Kerala have not reported their RTI applications statistics for the period under scrutiny in this report.

On the national scale the proportion of RTI users during an year between 2012-14 may will be between 0.37% – 0.41% of the population (of 121 crore). As a proportion of the electorate – aged 18 years and above – between 0.5% – 0.6% of them might have used the RTI laws. Despite a decade of the Central RTI Act being in existence and the J&K RTI Act being in existence for more than five years the proportion of RTI users has not risen to even 0.5% of the population or even 1% of the electorate.

The Central Government tops the list of jurisdictions receiving the most number of RTI applications in 2013-14 at 8.34 lakhs (73% public authorities reporting). Maharashtra comes in second with 7.03 lakh RTI applications received in 2014 followed by Karnataka in the 3rd place with 4.25 RTI applications, Gujarat at 4th place with 1.72 lakh RTI applications and Rajasthan taking the 5th place with 1.40 lakh RTI applications filed by citizens. With 1.40 lakh RTI applications filed in 2013-14, Rajasthan recorded almost double (97% increase) the number of requests reported in the previous year. Gujarat has reported a 41% increase in the number of RTI applicants in 2013-14 while Karnataka has witnessed a 31% increase in the number of RTI applications at 4.25 during the same period as compared to the previous year.

In Odisha 52,305 requests were filed in 2011-12 this number fell by 17.76% to 43,011 in 2012-13. Himachal Pradesh also reported an 18% decline in the number of RTI applications filed in 2012-13 (61,202) as compared to the previous year, this could be due partly to a 16.6% decline in the number of public authorities (110) reporting their RTI statistics to the SIC as compared to 2011-12 (132 public authorities).

Only two SICs have captured gender break up of RTI applicants. In Chhattisgarh women constituted 6.9% of the RTI applicants while in Nagaland they comprise 2.53% of the RTI applicants. None of the other ICs including the CIC have captured gender breakups in their annual reports. The available data shows that the proportion of women RTI applicants could be significantly lesser than the 8% figure reported in the RAAG-2 report published last year.

In Maharashtra individuals from BPL families constituted 1.11% of the total number of RTI applicants, while in Chhattisgarh this proportion was 4.16%, and Mizoram and Nagaland have reported 3 and 9 BPL applicants respectively. No other State has captured the economic profile of the RTI applicants. In Chhattisgarh 6.37% of the RTI applicants belonged to the Scheduled Castes. This proportion has nearly doubled since 2013. RTI applicants from the Scheduled Tribes constitute 5.5% of the total. In 2013 they constituted only 3.06% of the total. No other State has captured the caste profile of RTI applicants in this manner. The steady increase in the absolute numbers as well as in terms of percentage augurs well for the success of the RTI Act as it is primarily aimed at empowering the disadvantaged segments of society to hold government and its instrumentalities accountable.

In Chhattisgarh, the only State which continues to capture the urban-rural breakup of RTI applicants in its Annual Reports, less than a fifth of the applicants (19.85%) were living in villages. This proportion has reduced from 21% in 2012 even though there was a 21% rise in the number of RTI applications received across the State.

Public Authorities Receiving the Most Number of RTI Applications

As in the previous years, with more than 18% of the RTI applications coming its way, the Ministry of Finance in the Central Government topped the list of Ministries/Departments receiving the most number of RTI applications in 2013-14. This figure appears large due to the fact a large number of requests are filed with public sector banks and the tax authorities which fall under its jurisdiction. Standing alone, the Ministry of Railways comes second with 11.11% of the total number of RTI applications being filed with it, followed by the Ministries of Home Affairs (6.23%), Human Resource Development (6.21%) and the Communications and Information Technology (3.81%) taking the 3rd, 4th and 5th places, respectively. Together, the public authorities under these Ministries accounted for 45.41% of the RTI applications filed with the Central Government in 2013-14.

Individually, the Ministry of Railways (10.77%) the Department of Posts (8.17%), Delhi Police (3.61%), State Bank of India (3.17%) and BSNL (2.84%) rank amongst the top 5 public authorities receiving the most number of RTI applications in 2013-14. Together they received 28.56% of the RTI applications filed with the Central Government in 2013-14.

The Revenue, the Urban and Rural Development Departments and the Education come up more frequently than other departments receiving the most number of RTI applications in the 12 jurisdictions for which data is available. The Revenue Department tops the list of departments in the States of Karnataka (29.41%), Mizoram (9.42%), Odisha (28.86%) and Jammu and Kashmir (14.88%). The rural Development Department topped the list in Chhattisgarh (14.85%) and Himachal Pradesh (10.86%), while the Urban Development Department topped the list in Gujarat (24.91%) and Maharashtra (30.58%). In other States both departments vie with each other for the 2nd or 3rd position.

In Maharashtra the top 5 departments received 72% of the RTI applications filed across the State in 2014. Of this the Departments of Urban Development, Revenue and Forests and Rural Development and Water Conservation received more than a half of the RTI applications filed (60.42%). In Karnataka the Departments of Revenue and Urban and Rural Development received close to 2/3rds of the RTI applications (63.40%).

The Department of Education figures frequently amongst the top 5 in the States of Gujarat (3.22%), Himachal Pradesh (5.83%), Karnataka (4.73%), Nagaland (8.5%), Odisha (13.99%), Rajasthan (7.47%) and Jammu and Kashmir (11.23%).

The Home Department including the Police and Prisons topped the list in Rajasthan (28.68%) and Meghalaya (9.33%). Its counterparts figured amongst the top five in the States of Gujarat (17.26%), Himachal Pradesh (8.94%), Maharashtra (5.55%), Mizoram (7.75%) and Jammu and Kashmir (8.45%).The Department of Forests appear to be receiving more and more RTI applications during the period under study as compared with our 2013 report. This Department figures amongst the top 5 in the States of Maharashtra (22.34% – albeit along with the Revenue Dept.), Chhattisgarh (9.77%), Meghalaya (7.09%) and Mizoram (4.10%).

Proportion of rejections at the RTI application stage

The Central Government reported the highest proportion of rejection of RTI applications i.e., 35.62% for reasons other than Sections 8, 9, 11 and 24 of the RTI Act. Karnataka comes in at second place with the public authorities rejecting more than a 30% of the RTI applications for reasons not specified in the Act. In Gujarat close to a fifth of the RTI applications – 19.5% were rejected for reasons other than the exemptions recognised under the Act. Meghalaya SIC’s report does not contain similar breakup figures.

Section 8(1)(j) relating to the personal privacy of individuals was the most frequently invoked of exemptions by public authorities under the Central Government and the Government of Karnataka. More than a third of the RTI applications in Karnataka (33.15%) were rejected by public authorities invoking this clause. Under the Central Government 23% of the RTI applications were rejected by public authorities invoking the protection for personal privacy. In Gujarat this figure was a little more than 10%. However Section 9 which protects private copyright and Section 11 which protects confidential information about third parties account for more than 20% of the rejections in Gujarat.

Under the Central Government Section 8(1)(d) of the RTI Act pertaining to commercial confidence, trade secrets and intellectual property rights was the 2nd most frequently invoked exemption to reject RTI applications at 13.37%. In Karnataka Section 8(1)(h) of the Act pertaining to impediments in the investigation, arrest or prosecution process was the 2nd most frequently invoked exemption – 11.53%.

In Gujarat, 6.2% of the RTI applications were rejected for reasons specified in Section 8(1)(a) of the RTI Act which pertains to national security and specified national interests of the State including foreign relations. In Karnataka public authorities invoked Section 8(1)(a) in 4.8% of the cases to reject RTI applications. Under the Central Government, Section 8(1)(a) accounted for only 0.05% of the rejections although in terms of absolute numbers, more RTI applications were rejected as compared to these two States.

In Gujarat 23.5% of the RTI applications were rejected under Section 24 as they pertained to security and intelligence organisations exempted by the Government from the ordinary obligations of transparency like other public authorities. In comparison, Section 24 was invoked only in 6.52% of the cases where RTI applications were filed with the Central Government. Karnataka SIC has not reported the use of Section 24 for rejections during the current period.

Click HERE to download full report

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