At least 16 RTI activists have been killed in Maharashtra since 2010. Their fault — they used RTI to unearth corruption, misuse of public funds and exposed horsetrading of elected representatives among other things. How did the criminal justice system respond to this phenomenon? Veteran journalists, Vinita Deshmukh and Prasanna Kumar Keskar investigated the lives and deaths of 13 RTI activists who paid the price for transparency with their lives.
Excerpts from the report “Life and Death in the Time of RTI: Case Studies from Maharashtra”*, a Commonwealth Human Rights Initiative (CHRI) publication:
Maharashtra has the dubious distinction of reporting the highest number of attacks on citizens and activists who use RTI to make government agencies more transparent and accountable. At least 36 instances of assaults and attacks on and 41 cases of harassment of or threats to citizens using RTI have been reported by the media. At least 16 alleged murders have been linked to RTI activism of the victims in Maharashtra since the enforcement of the RTI Act.
Country-wide, at least 86 cases of murder, 170 cases of physical assault (in some cases multiple attacks on the same individual), 183 cases of threats or harassment reported by the media are linked to the RTI activism of the victims. Unable to cope with the retaliatory pressure they faced, at least seven RTI activists are said to have taken the extreme step of ending their lives.
These RTI activists were not seeking information about the country’s defence or strategic interests or trying to pry out the trade secrets of any private company. Nor were they seeking to invade the privacy of their neighbours through their RTI requests. Instead, they used the RTI Act to make local public authorities more transparent and accountable in their functioning than the latter were willing to be voluntarily. Our inquiries revealed, the RTI activists slain in Maharashtra were essentially whistleblowers who used the RTI Act for:
• exposing corruption in cooperative societies and irregularities in cooperative banks;
• unearthing land-grabbing and real estate scams involving the urban land mafia;
• opposing the construction-realtor mafia in towns and cities;
• exposing corruption and irregularities in granting building permissions by municipal corporations;
• exposing defections of municipal corporators from one political party to another through corrupt means;
• uncovering forgery of property records used for illicit gain;
• unearthing irregularities like diversion of food grains under the mid-day meal scheme meant for school children;
• unmasking the diversion of housing assistance benefits meant for poor families to ineligible persons;
• uncovering illegal takeover of sugar factories by politicians;
• exposing illegal sand mining;
• unearthing irregularities in the staffing and management of educational institutions;
• exposing irregularities in the disbursement of grants and hostel rooms for students from migrant families;
• protecting the rights and entitlements of pavement hawkers and vendors;
• laying bare irregularities in the transfer of key officials in civic bodies;
• exposing misuse of public funds in the repairing the ancestral home of a well-known freedom fighter;
• identifying truant employees of civic bodies;
• unearthing corruption in the repair and maintenance of sewer works; and
• exposing corruption in road repair and pavement construction works.
They paid the price of such activism with their lives. The cost of demanding transparency, it seems, is much higher than the INR 10/- application fee and INR 2/- per page photocopying charges stipulated by the RTI Rules in Maharashtra.
Supported by a three-month fellowship from CHRI, we took up the task of inquring into the life and death of 13 RTI activists in Maharashtra whose alleged murder was reported by the media. We decided to examine the causes and the consequences of their RTI activism. We also looked at the manner in which the criminal justice system, namely, the police, the prosecution and the courts reacted to their killings. Did the system act swiftly enough to bring the cuplrits to book? How long and difficult was the road to justice for the bereaved families? Were their voices heard in the course of the investigation and prosecution? What impact did the gruesome violence have on the families and the immediate socio-political environment in which the victims lived? What was the role of oversight bodies like the State Information Commission, particularly with regard to the victims’ information requests that were processed by public authorities before these activists were attacked? Will we be able to access credible answers to these and other related questions during our field study? These issues were uppermost in our minds when we launched this study across seven districts of Maharashtra.
When it came to tracking down information about these 13 deaths, the challenges were many and our findings disturbing, to say the very least. This is mainly due to the absence of any concerted effort from any quarter- either government or civil society or the State Information Commission or the National Human Rights Commission (which treated at least one of the victims as a human rights defender) to document the aftermath of these murders. Official records relating to the criminal investigation and prosecution were hard to come by. Families often did not preserve records evidencing the RTI activism of the victims. The local RTI activist fraternity either did not have adequate knowledge of these cases or refused to speak with us fearing reprisals. Equally worrisome was the hostile campaign run through the local media by vested interests, with active or tacit support from law enforcement agencies, to malign the victims about their motivations for activism resulting in social stigma for the bereaved families.
Despite the many difficulties in gathering credible information about these cases, our inquiries revealed, the slain RTI activists belonged to various socio-economic strata of society. Some were successful businessmen, a few were farmers. Some belonged to middle class families. At least one belonged to a nomadic tribe and another hailed from a family of migrant labourers. Some were highly educated, a few others did not go beyond basic schooling. Several were Maharashtrian in origin. A few of them had migrated from northern and western parts of India in search of a better life and livelihood opportunities. One of them had migrated to Maharashtra in order to escape persecution he faced for assisting law enforcement agencies in Delhi. At least three victims worked closely with prominent political parties but that did not afford them any extra layer of protection.
The most worrisome discovery in this study is the failure of the criminal justice system to identify and punish the murderers. In at least four cases, the accused were acquitted for lack of sufficient evidence. So, while the fact of murder is undeniable, nobody has been found guilty of committing the crime. In a majority of other cases the trial has not been completed.
In one case, the police closed the matter saying it was a case of accidental death due to consumption of liquor. In another the police blamed the murder on an alleged extra-marital affair that the victim was having, without making inquiries about his RTI activism to examine the conspiracy angle.
At least two of these cases were handed over to India’s apex crime investigation agency- the Central Bureau of Investigation (CBI) after the local police failed to handle them in a professional manner. CBI boasts a successful prosecution rate of 65-66% of the cases it handles every year. However, in the very first RTI-related murder case reported in Maharashtra, the CBI filed a closure report citing lack of prosecutable evidence against the accused. The victim’s brother has challenged this finding in the Supreme Court of India in a last ditch effort to seek justice. In another case, the CBI has announced a cash reward of INR 5 lakhs (500,000 rupees) for credible information about the culprits of the murder, having failed in its own investigative efforts.
Observations and the major challenges we faced while conducting our investigation:
• Reluctance of families of slain RTI activists to speak out: Traumatised by the brutal murder of their bread-winners who were labeled as ‘RTI blackmailers’ by the police and sometimes by the media, family members were reluctant to talk to us about their experiences. They looked at anyone who approached them for information about the slain activist with suspicion. Afraid that they may be targeted again and also distressed by the fact that the whistleblower’s sacrifice had gone in vain, some had burnt up the RTI documents obtained by the murdered activist or hidden them away. We had to find alternate means to obtain these documents, from friends or compatriots with whom they shared their penchant for activism. We were successful in some cases but were stonewalled in others. In two cases we could not find photos of the slain activists at all.
• Shoddy police investigations: In almost all cases, immediately after the murder, the families, obviously in a state of shock, could not give the name(s) of persons whom they suspected for being behind the attacks. Meanwhile, the police, in the name of probing all angles, came up with explanations that we found bizarre, avoiding even mention of the possibility of the murder being related to their “RTI activism” in their reports. Later, when the families came forward to name the suspects, the police refused to probe this angle, terming the attempts by the families as an afterthought. For example, when the first information report (FIR) was registered by the family member who learnt of the murder first, it did not identify any suspect. Later when the family members gave their statements to the police in the course of the investigation, they were labelled as ‘deliberate improvements’ by the trial courts. This happened in the case of Satish Shetty (case study #1) and Dattatreya Patil (case study #2) to name a few. As a result, the perpetrators of the heinous crime got ample opportunity to escape the long arm of the law and even destroy crucial evidence. Because of this, we had to spend considerable time digging out details of what else had occurred that did not find mention in the police investigation reports.
• Police, branding RTI activists as blackmailers: The police have been treating the murders of RTI activists as routine cases of murder due to personal enmity and avoiding describing the victims as RTI activists. Instead, immediately after the murders or at times even during the trials in the court, they projected the RTI activists as blackmailers. This resulted in a media trial which stigmatised the families for years, making it impossible for them to not only seek justice but also to lead a normal and dignified life in the community where they reside. At least one family moved away where it lived and remained untraceable despite our fervent efforts.
• Witnesses turning hostile: Panchas (witnesses) turned hostile in almost every case of acquittal not least due to fear of reprisals from the murder accused or pressure from other quarters. After all, these activists had taken on the locally powerful and the influential headon in their struggle for social causes. The criminal justice system also did not bother to ensure the safety and security of the witnesses so that they could give evidence during the trial in a free and fearless manner. Further, the delay in arresting the suspects also created a fear psychosis. Such delays helped the culprits to influence witnesses as it was alleged in the case of Vitthal Gitte (case study #4). There was a considerable time gap between the murder and the trial proceeedings, as a result of which discrepancies between various accounts of how the crime was perpetrated cropped up during the depositions in the trial court.
• No coordinated efforts by the RTI activist community: Families of slain RTI activists got little help from their fraternity. In rural areas, RTI activists either do not know each other or do not help in furthering the causes that the slain activists had taken up. In urban areas like Mumbai, the apathy is even more apparent. Therefore, tracking down the families of the slain activists itself became an arduous task. In most cases, neither the RTI activists nor journalists from newspapers which had carried screaming headlines after the murders, had the contact number or addresses of the victims’ families. Even the police and public authorities were not forthcoming with such information despite our repeated efforts. Tracking down the families was an uphill task in many cases.
• Stalking during our field trip: ‘Let sleeping dogs lie’ is the attitude adopted by society in general, in such matters. As a result, someone who starts making inquiries is often seen as a potential threat and faces hostile reactions. During a field trip, one of us, authors, was at the residence of a slain activist making the usual inquiries. A couple of men reached the house and using their mobile phones clicked our photographs, that of our driver and the car we used. On our return journey we halted at a dhaba (roadside restaurant) for a meal. While the youth at the counter was questioning us about who he was and the purpose of journey, we could see our photo, that of our driver and the car we used loaded on his mobile phone. Our photos had been shared at lightning speed with the youth at the dhaba, situated at least 200km away from the village where we had conducted our inquiries earlier.
• Inadequate legal support: When it came to the trial court, public prosecutors relied on circumstantial evidence thanks to the inadequacy of evidence collected during the police investigations particularly with regard to witness statements. Also, in the cases we have analysed, the public prosecutors did not further cross-examine the witnesses who turned hostile. With most of the RTI activists having been killed in public places or on public roads, there would have been witnesses, whom the police did not take the trouble to track down – deliberately or otherwise. This was observed even by the trial court in the Dattatreya Patil murder case in which strictures were passed against the Investigative Officer for his failure to track down witnesses who might have seen the activist and the accused present in the same area at the same time.
• Lack of records in police stations: In almost all cases, records at the police stations did not have the judgement in cases where the trial had been completed. This, even after two to three years of the court having delivered the judgment. We had to rely on the E-courts website to procure them. Thankfully, Maharashtra has taken steps to upload judgements of trial courts in criminal cases. So we were able to access some case records. However where case numbers or case details were not known, finding official documentation of several cases became impossible. In a few ongoing cases the police records only spoke of preventive action taken against the accused after they were granted bail. No further information about the status of the criminal trial was available with them.
• Media found wanting: We found that news reports published and circulated, in rural areas were tilted against the slain activists. In one case, the reporter of a prominent newspaper confessed to us that the facts mentioned in his story were false. Moreover, there had been no follow up reporting of the cases by the media. As a result, we had to cross-check every fact reported in newspapers. When it came to the latest status of the cases we had no way other than extensive Internet searches through E-court websites, public and private websites and blogs to rely upon. At times while looking for addresses or contact details of the victims’ families we had to talk to local grocery shopowners and community workers to collect information and to identify the bare bone facts in order to stitch them together into a reliable narrative.
Given the extremely poor response of the system to provide justice to the victims’ families, we believe, prevention is better than cure. It is better to put in place mechanisms to ensure that the possibility of attacks on RTI activists and users is mitigated. In the rare instance where such attacks occur, effective oversight mechanisms are necessary to ensure that the law enforcement agencies and the courts do their mandated jobs without any external influence or considerations.
Policy recommendations to prevent attacks on RTI activists and whistleblowers and swiftly prosecute and punish culprits whenever they occur:
• the Central Government must immediately bring into force the Whistleblowers Protection Act (WBP Act), which Parliament enacted in February 2014 wihtout making any of the retrograde amendments that were proposed in 2015;
• the State Government must urgently notify competent authorities to act upon complaints from whistleblowers including RTI activists who submit evidence-based complaints of wrongdoing and corruption in public authorities;
• the State Government must put in place a scheme for ensuring safety of RTI activists and whistleblowers by expanding upon the WBP Act to prevent such attacks, after widespread consultation with civil society actors, media representatives and citizen activists;
• Maharasthra’s Lokayukta Act must be reviewed in light of the provisions of the Lokpal and Lokayuktas Act, that Parliament enacted in 2013 to ensure alignment between the two laws and provide for an effective mechanism to act on complaints of corruption and other offences and irregularities committed by public servants;
• The human rights commissions at the State and national level must adopt a policy of treating all individuals who use RTI in matters of public interest or indulge in whistleblowing on corruption and wrongdoing in public authorities, as human rights defenders;
• The human rights commissions must use their powers under the Protection of Human Rights Act, 1993 to ensure professional and time bound investigation of cases of attacks on RTI activists and users and become observers of the ensuing criminal trials;
• As custodians of the fundamental rights guaranteed by the constitution the High Courts must put in place systems to seek reports from the respective courts to ensure fair and speedy trial of criminal cases pertaining to attacks on RTI activists and whisteblowers. Article 227 of the constitution empowers them with such wide powers of superintendence over the trial courts;
• Police departments and commissionerates must work in tandem with the State Information Commissions to develop protocols and training programmes for investigating officers to explore linkages with the RTI activism of victims of crime before filing their final reports or chargesheets before the courts for further action;
• Civil society groups must conduct capacity building programmes for RTI activists and whistleblowers who work without any organizational affiliation to engage in media advocacy in order to publicise the outcomes of their interventions. A fair amount of publicity for their work can act as a deterrent against possible attacks from vested interests;
• RTI activists and whistleblowers must be sensitized and trained to handle their RTI interventions in a professional manner without turning it into a one-on-one attack on officers or politicians or vested interests who may be involved in the wrongdoing. This can reduce the possibility of enmity taking root and obviate the possibility of murderous attacks on RTI activists and whistleblowers; and
• Governments must invest sufficient resources in developing the capacity of public authorities to proactively publish on their website all RTI applications, replies and information supplied to requestors including whistleblower complaints and action taken in such matters. When information about allegations of wrongdoing and of corruption become public knowledge through official channels, targeted attacks on RTI activists and whistleblowers are likely to be reduced.
*Click here to read full report