Kalpeshkumar L Gupta*
Right to Information Act (RTI) is a powerful law enacted in year 2005 for better governance in the country. The RTI law is backed by Article 19(1) (a) of the Constitution of India which talks about freedom of speech and expression. For proper usage of this right one should have proper information about the Public Authority. Public Authority carries wider meaning than only government. There are two objectives of RTI Act, 2005, one is to bring transparency and accountability in governance and other one is to setting up of Central Information Commission (CIC) and State Information Commission (SIC) to hear appeals and complaints. There are lot of peculiarities in working of CIC and various SICs. Some state commissions are performing exceptionally well whereas some are lagging behind.
Most of the state information commission offices are facing challenges in terms of vacancies which ultimately leading to backlog of appeals and complaints. Second biggest challenge is appointment of efficient Information Commissioners who can dispose cases in effective way and in timely manner. There are Information Commissioners who have given landmarks orders and disposed of large number of cases. Thus we can see role of information commissioner is crucial for successful implementation of RTI Act.
Legal provisions of information commission
There will be two separate bodies to hear complaint and appeals under the RTI Act, 2005. For central level there will be Central Information Commission (CIC) and State Information Commission (SIC). CIC will deal with the matter pertaining to central level public authorities and SIC state level public authorities.
- Central Information Commission
Section 12 provides for constitution of Central Information Commission (CIC). The Central Government constitutes the body to be known as CIC. It shall consist of the Chief Information Commissioner and other Central Information Commissioners (ICs) not exceeding Ten. The general superintendence, direction and management of the affairs of the CIC shall vest in the Chief Information Commissioner who shall be assisted by other Information Commissioners. The headquarter of the CIC will be at Delhi.
Chief Information Commissioner and other Information Commissioners shall hold office for a term of five years and shall not be eligible for reappointment provided maximum age of sixty-five years (Section 13). CIC and other ICs can be removed as per Section 14.
- State Information commission
Section 15 provides for constitution of State Information Commission (SIC). The State Government constitutes the body to be known as SIC. It shall consist of the State Chief Information Commissioner and other Central Information Commissioners (ICs) not exceeding Ten. The general superintendence, direction and management of the affairs of the CIC shall vest in the Chief Information Commissioner who shall be assisted by other Information Commissioners. The headquarter of the SIC will be decided by state government.
State Chief Information Commissioner and other Information Commissioners shall hold office for a term of five years and shall not be eligible for reappointment provided maximum age of sixty-five years (Section 16). SCIC and other ICs can be removed as per Section 17.
Power and functions of Information Commission
Complaint (Section 18)
A person can file complaint to Central Information Commission or State Information Commission as the case may be on following grounds.
– There is no appointment of Public Information Officer in the office of public authority.
– Public Information Officer has refused to accept the application.
– Refused to access any information.
– Not given any response on application within time limit.
– Unreasonable fees.
– Incomplete, misleading or false information given.
CIC/SIC having satisfied with the grounds will initiate the inquiry. The CIC/SIC shall inquiring into the matter under the act have the same powers as re vested in a civil court while trying a suit under the Code of Civil Procedure Code, 1908 in the matter like summoning and enforcing the attendance of person for giving evidence, requiring the discovery and inspection of documents, receiving evidence on affidavit, requisitioning any public record or copies thereof from any court of office.
Appeal (Section 19)
A person may file first appeal to senior officer to CPIO/PIO in following cases within thirty days.
– If information is not received within the time frame or
– Aggrieved by the order
Second appeal may be filed in ninety days to CIC/SIC.
CPIO/PIO/CIC/SIC shall give a part an opportunity of being heard. In appeal proceedings, the onus to prove that a denial of a request was justified shall be on the CPIO/SPIO as the case may be who denied the request. CIC/SIC will require the public authority to take any such steps as may be necessary to secure compliance with the provisions of the act. CIC/SIC may require the public authority to compensate the complainant for any loss or other detriment suffered.
Penalties (Section 20)
CIC/SIC shall impose penalty if application is refused, information is not given within time limit prescribed, misleading, incorrect, incomplete information is given, information destroyed. Penalty of Rs. 250 each day till application is received or information is furnished, so however the total amount of such penalty shall not exceed Rs. 25,000.
Monitoring and Reporting
The CIC or SIC as the case may be, shall as soon as practicable after the end of each year, prepare a report on the implementation of the provisions of this act during that year and forward a copy thereof to the appropriate government.
Some leading orders
Answer Sheet Case
After the enactment of RTI Act many students started filing RTI application in various universities, institutions in the India. Matter reached information commissions to high courts and finally Supreme Court of India heard matter collectively in the case of CBSE & Ors v/s. Aditya Bandopadhyay & Ors ((2011) 8 SCC 497). Examining bodies were contending that they held answer sheets in fiduciary relationship but it was struck down by the apex court.
Judges Assets Case (Secretary General, Supreme Court of India v/s. Subhash Chandra Agrawal, Delhi High Court, 2010)
In this case Subhash Chandra Agrawal filed RTI in Supreme Court of India to know the details of judges’ assets but information was denied. He approached Central Information Commission (CIC), it asked SC to provide the information. Matter reached to Delhi HC and HC upheld the order of CIC.
Political Parties (Subhash Chandra Aggarwal & Anil Bairwal v/s. INC, BJP,CPM, CPI, NCP, BSP, Central Information Commission, 2013)
In year 2011, Shri Subhash Chandra Agrawal sought information from the Presidents/Secretaries of the Indian National Congress and Bharatiya Janata Party asking various information. He received reply from INC and BJP that it does not come under RTI act. Anil Bairwal filed RTI and sought information from political parties INC, BJP, CPM, CPI, NCP, BSP. He did not get the positive reply. Finally both of them approached the CIC. CIC decided that political parties come under the ambit of RTI act. All political parties resisting and don’t want to come under the RTI act. Politician also came up with amendment in RTI act that political parties are exempted from RTI act. Till date political parties have not comply with the order. Complaint has been filed against the non compliance of order but nothing concrete has happened so far. Congress also stated that CIC not competent to bring political parties under RTI.
Board of Control for Cricket in India (BCCI)
In year 2011 Shri Om Prakash Kashiram sought information from BCCI asking details of total income from all sources are getting by BCCI. BCCI did not provide information so Om Prakash filed appeal before CIC. BCCI’s Advocate pleaded BCCI does not come under the definition of “Public Authority” as defined section 2(h) of RTI Act, 2005. CIC decided in favour of BCCI stating that it’s not a public authority. Presently issues are going on takeover working of BCCI. Supreme Court appointed a committee under the chairmanship of Former Chief Justice R M Lodha. Lodha Committee has submitted its report to SC but BCCI is denying to accept those recommendations.
The Central Information Commission (CIC) through Information Commissioner M. Sridhar Acharyulu in O.P. Gandhi v. Tihar Jail (CIC, New Delhi CIC/SA/A/2016/000884, Decided on September 27, 2016) directed the state/public authorities to compensate a prisoner who lost out on his freedom due to extra detention, thus violating his fundamental right to a meaningful life guaranteed under the Constitution of India. The appellant was convicted under Section 138 of the Negotiable Instruments Act for dishonour of cheque for insufficiency of funds. He was sentenced to simple imprisonment for one year and fine. But after collecting information on remission and other aspects through 36 RTI applications, he contended that he was detained for an extra length of four days. The question for consideration was ‘other detriment’ of extra-detention, and compensation.
There are various other orders in which information commission decided matters on following issues.
– Whether a organization is a public authority or not?
– Whether matter is in public interest or not?
– Striking the balance between private information and public information
– Whether information is held under fiduciary relationship or not
– And finally matter relating to non reply of application, aggrieved from reply etc.
Biggest problem for implementation of RTI act is vacancy of information commission both at Central Level and State Level. Activists approached the court of law to give direction to government for filling up the vacancies of information commissioners. CIC was headless for over 10 months by May 2015.
Backlog of Cases
RTI machinery is suffering from backlog of cases like Indian Judicial System. Information Commissioners’ case disposal rate is too low barring few commissioners who have done excellent job in this area. Shailesh Gandhi, Former Central Information Commissioner used to dispose 5000 plus cases in a year. He also claims that this figure can be increased to 7000.
Efficiency of Information Commission
Shailesh Gandhi, Former Central Information Commission once said that the Information Commissions have become the biggest threat to the transparency movement. There is dearth of efficient information commissioners. Main reason behind is arbitrary appointment.
There are less number of cases in which Information Commissioners imposed the penalty on defaulting PIO and Appellate Authorities. Penalty is to be paid from salary of PIO/AA. In year 2011, it was reported that CIC fined babus in less than 1% cases. This is also one of the reasons why Public Information Officer/Appellate Authorities are not much concerned about the matter of appeal/complaints. The CIC imposed penalties to the tune of more than Rs. 7 lakhs (Rs. 739,000) on errant PIOs in 2014-15. This figure has reduced drastically by 61% when compared with the imposition of fines to the tune of Rs. 19.25 lakhs (Rs. 1,925,000) in 2013-14. During 2014-15 the CIC recovered penalties better as compared to the previous year. It recovered Rs. 11.31 lakhs (Rs. 11,31,225) as compared to Rs. 10.19 lakhs (Rs. 1,019,628) which is about 10% higher.
Information Commissions can award compensation to the complainant for any loss or other detriment suffered by him while deciding the appeal. There are very few cases in which Information Commission awarded the compensation to applicants. It matter of discretion for information commissioners to grant the compensation for aggrieved party. Recently The Central Information Commission (CIC) through Information Commissioner M. Sridhar Acharyulu in O.P. Gandhi v. Tihar Jail (Supra) directed the state/public authorities to compensate a prisoner who lost out on his freedom due to extra detention, thus violating his fundamental right to a meaningful life guaranteed under the Constitution of India.
Looking at above discussion we can see the importance of Information Commission in successful implementation of RTI Act. Many Information Commissioners have given landmark orders which upheld by the higher judiciary. On the contrary there cases in which orders are not complied with like political parties and others. Public Authorities don’t comply with orders passed by Information Commissions. We also can see that the role of government which is not encouraging at all. There are cases where information commissions are competent enough to expedite the RTI matters. Thousands of appeals/complaints are pending across the offices of information commissions. In some state’s commission it takes one to two years for first hearing.
Followings are some general suggestions for better implementation of RTI act for which support of government is very much needed. Without which Information Commissioners cannot work effectively.
- RTI application/appeal formats standardization
- Various payment options for RTI application fees.
- Benches of Commission to be established in the state as per need.
- Video conferencing facility to be installed in Commission’s office for hearing appeal/complaint. This will make hearing expeditious.
- Vacancies of Information Commissioners to be filled up at the earliest both at the Central Level and State Level. Appeals, Complaints are pending for months/years because of existing vacancies.
- Proper training for Public Information Officer (PIO) & Appellate Authority so that they can handle the case properly and avoid further appeal/complaint. PIO & Appellate Authority can present their case in well manner.
- Robust Centralized Online RTI application/appeal mechanism to be set up to expedite the process of application/appeal/complaint.
- Faster letter dispatch from office of Commission. In most of the cases letter is prepared with a date, officials will sign the letter after few days putting date of signature and ultimately it will be dispatched after few days of official’s signature. This process takes 5-10 days.
- Helpline centre for RTI application/appeal to be set up.
- RTI Application facilitation centre to be set up at big public authority office.
- Intensive campaign for RTI Awareness as envisioned in Section 26 of RTI Act, 2005.
- SMS alert service to be started for hearing date. Reminder to be sent to parties 1-2 days in advance.
Some special recommendations for application process
For manual application
To facilitate manual RTI application, Central Government/State Government should provide for various options for fees payment in their respective RTI Rules. To avoid this all options, Department of Post should come up with RTI Stamp so that RTI fees payment can be streamlined and make it hassle free. Central Information Commission has already asked Department of Post to introduce RTI stamp and open counters for receiving application at post offices.
For online application
It has been observed that there is no centralized online process system for RTI application/appeal in the states. Hardly any states have come up with online RTI application/appeal filing which will save lot of time and money. Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, Government of India launched RTI web portal (www.rtionline.gov.in) for online filing of RTI application in April 2013 covering only Department of Personnel & Training (DoPT) initially but now almost all Ministries/Departments of Govt. of India have been covered. The application filed through this web portal would reach electronically to the Nodal Officer.
The Nodal Officer shall access this portal at least twice in a day. He shall transmit the RTI application electronically to the concerned CPIO. In case the RTI application is not meant for department, the Nodal Officer shall transfer the application physically to the concerned public authority, under section 6(3) of the RTI Act. The applicant can pay the prescribed fee through Internet banking through State Bank of India and its associate banks or Credit/Debit card of Visa/Master . This website covers only central ministries/departments. This website should expand its scope and cover all offices of Central Public Authorities.
At State Level, department wise online application RTI process will not serve the purpose as sometimes a person will not be able to make out that which department is involved in the matter. I hereby propose a state level centralized online application/appeal process to make it hassles free. There will be a RTI portal for every state in India. After opening portal, there will be tab for each district. Clicking on district tab, there will be list of public authorities covered under those districts. In addition to that Talukas can be put under heading of districts to make RTI application/appeal more convenient. One can submit online application/appeal to concerned public authority on the said portal. In case where some public authorities are not covered in portal because of some reasons, one can submit RTI application/appeal to Facilitation Centre by filling up details of public authority. Facilitation Centre will forward that application to concerned public authority.
*PhD scholar at the Gujarat National Law University, Gandhinagar. Slightly abridged version of the paper “Information Commission under RTI Act, 2005: An Appraisal”