Right to Information: Ailing RTI and trailing governance

Courtesy: Special arrangement

When RTI was enacted, it envisaged a world of transparency and accountability. The Right to Information Act was passed by the parliament on June 15, 2005, and came into effect on October 12, 2005. Sixteen years have passed since this Act was implemented, but it is mired in multiple controversies and is still out of bounds for the common man it is intended to serve.

RTI activist from Delhi, Gopal Prasad, claims he has filed more than 7000 RTI applications ever since the inception of the Act. During the pandemic, Prasad states that there were multiple instances where officials had grossly misused the RTI provisions to deny information to the applicants.

"I had filed an RTI application during the pandemic. The first appellate authority wrote a letter to me stating that physical hearings would not take place because of Covid-19. The appellate authority, in its letter, invited me to take part in an online hearing via zoom meeting on the 17th. But the catch here is, this letter was sent to me by the first appellate authority on 14th night at 8:04 p.m, and I was asked to take part in the zoom meeting on 17th, and it specially mentioned that I had to send my mobile number and email id by 15th before 2 p.m, only then I will be sent the email invite of the zoom link. The first question is, how do they expect me to comply with this demand when they send me a letter at the last minute. The second point is what was the need to seek my email id and mobile number when these details were already mentioned in my application. It may sound very simple, but through my experience since the last so many years, I have learnt that the authorities employ various tactics to deny information to the applicant. In this case, it was clear that they did not want me to take part in the online hearing in the first place", stated Gopal Prasad.

The RTI website brought out by the Department of Personnel and Training is not centralised, and it does not accept applications for public authorities under the State governments, including the Government of NCT Delhi. The main website notes: "Please do not file RTI applications through this portal for the public authorities under the State governments, including the government of NCT Delhi. If filed, the application would be returned, without refund of the amount."

In the last many years, several RTI activists have been harassed, threatened, assaulted and murdered in India. There have been several studies that point towards the number of people victimised for the simple reason that they had filed an RTI petition seeking information.

The most recent was the attack on RTI activist Amra Ram Godara in Rajasthan's Barmer district. According to Godara, nails were pierced on his legs, and he alleges that he was forced to drink urine. Godara was allegedly attacked for exposing corruption in Gram Panchayat Kampuliya in Barmer. Godara had asked many questions relating to the Mahatma Gandhi National Rural Employment Guarantee Act and the Pradhan Mantri Gram Awaz Yojana, which he believes is the reason that led to his victimisation.

According to the data published by the National Campaign for People’s Right to Information (NCPRI), 213 RTI activists and their kin were threatened and harassed from 2005 to 2020. The data reveals that 164 people had faced assault, and 96 people were killed because of their activism. These numbers are believed to be just the tip of the iceberg as the agency reveals that the data they had acquired only pertains to the news reports that were published by the mainstream English media.

Their disclaimer reads: “The actual numbers are probably significantly higher. This indicative list only attempts to capture the numbers reported in the English media. Those not reported or reported only in vernacular media might be left out of this list.” According to the NCPRI data, Gujarat and Maharashtra top the list with the maximum number of people killed because of their RTI activism.

A picture of the writer of this article and whistleblower of Vyapam scam Ashish Chaturvedi, along with a policeman who provides him 24X7 security owing to persistent threats following his activism

Even the central RTI website run by the DoPT is so poorly maintained that it has no provision to register new users. The Internet Freedom Foundation had recently filed an RTI petition on the disallowance of new users to register on the government’s RTI website. As a response to the RTI query, the National Informatics Centre under the Ministry of Electronics and Information Technology replied, stating that they do not have any material information on changes made to the RTI portal.

In response to our RTI on the disallowance of new users to register and the UI change, @NICMeity has said they do not have any material information on changes made to the RTI portal.

Join us on our forum and advance the conversation!https://t.co/0vMcEwr0GE

— Internet Freedom Foundation (IFF) (@internetfreedom) December 24, 2021

The reply to the RTI filed by the Internet Freedom Foundation states as follows: “No material information is available in the records of the answering officer to the questions in the RTI application. Please note that under the RTI Act, 2005… the CPIO is not required under the Act to create information or to interpret information or to give opinions on hypothetical situations or predict future actions.”

RTI received by the Internet Freedom Foundation from the NIC, DoPT | Courtesy: Internet Freedom Foundation

The online RTI system is still not implemented in most states. During the first and second waves of Covid-19, many RTI applicants could not access information because of challenges related to the manual filing of RTIs during the lockdown and thereafter. While the online system makes it easier for the citizens to file RTI applications and pay RTI fees, till date, even in states where the online system is in place, many key departments don’t fall under the online ambit of RTI.

RTI activist Subhash Agarwal Special arrangement

Another problem plaguing the RTI activists is that the names of seasoned RTI activists are misused by miscreants, and there is still no regulation that provides protection to these activists from such offenders. Subhash Agarwal, an acclaimed RTI activist responsible for bringing the Chief Justice of India’s office under the purview of the RTI Act, claims that on multiple occasions, miscreants have used his name for filing RTIs since he is a seasoned RTI activist.

“I have faced this multiple times. Many people are using my name and sending RTI applications because they feel that if the RTI goes in my name, they will get a reply. The government should bring in some rules to protect RTI activists like me from such impersonators,” said Subhash Agarwal.

The RTI Act of 2005 has resulted in unravelling several scams in India, including corruption cases like the Vyapam scam, the Indian Red Cross Society Scam, Commonwealth Games scam, 2G scam, Adarsh scam, amongst others. But according to Subhash Agarwal, many people still don’t know the relevance and the critical clauses of the RTI Act.

Agarwal notes, “My experience with the Central Information Commission office has been outstanding. If our application has merit, then sometimes I have seen that we don’t even have to say anything. The Commissioner mostly will speak on our behalf to the responding public authority. But for all this to happen, one needs to draft the RTI petition well. I really feel this is where most people lose out as they do not have the experience or expertise to draft good RTI petitions. I feel that there must be courses at the school level itself that trains our younger generation to take advantage of the RTI Act. This must be part of our school curriculum”.

According to Gopal Prasad, awareness is the need of the hour. “When the Prime Minister, the Chief Ministers and other respective ministers place advertisements worth crores of rupees in newspapers and television channels showcasing their achievements, the question is why are there no advertisements or awareness campaigns regarding the Right to Information Act?”

While awareness is a significant concern, another issue gripping the RTI ecosystem is the pendency of appeals. “Earlier, Dr Jitender Singh had said in a written reply in the Lok Sabha that thousands of complaints and appeals were pending before the Central Information Commission. He had said that in 2019-20, 35000 appeals and in 2020-21, around 38000 appeals and complaints were pending before the CIC. I am talking about only appeals here. On an average, appeals are sent by 5 out of 100 applicants. So you can imagine the severity of the problem,” said Prasad.

Agarwal states that, as they say, justice delayed is justice denied; information delayed should also be seen as information denied. Section 4 (1) (a) of the RTI Act notes that the government must maintain records in a duly catalogued and indexed manner and that all records must be computerised so that people can be given access to such records. But despite this rule, many government records in the country are yet to be digitised. And most delays usually stem from the non-computerisation of govt documents.

RTI activist Gopal Prasad | Special arrangement

Third-party information

While non-digitisation is one of the bottlenecks in making RTI more accessible to the common man, there are certain clauses within the RTI itself that act as a deterrent to information dissemination. For instance, Section 2 (n) of the RTI Act, 2005 defines a third party as a “person other than the citizen making a request for information and includes a public authority”. This invariably means that the term ‘third party’ could point to someone who is neither the appellant nor the respondent. In situations where one is asking for information that is not related to one’s own activities but pertaining to other people (third-party), then the information cannot be provided without the third party’s consent to the disclosure. This often ends up with the authorities refusing to provide the information citing the consent denied by the third-party. The situation gets even more complicated if the third-party is diseased and information sought need not be provided unless the public information officer sees a ‘larger public interest’ in providing such information.

It is clearly stated in the provisions of RTI section 8(j) that the information relating to third parties should not be denied if the information is justified in the wider public interest. Since it is the public information officer’s discretion to decide what ‘larger public interest’ is in a specific context, information could be conveniently denied on this ground too. This calls for a deeper and more comprehensive rethinking about clauses on ‘third-party’ and what could be clearly defined as ‘wider public interest’.

Courtesy: Special arrangement

Privacy and National Security

Section 24 of the RTI Act exempts many security and intelligence organisations from ordinary obligations of transparency like other public authorities. But they are still duty-bound to divulge information if the information sought falls under the ambit of corruption or human rights violation. Despite this, most requests are plainly rejected whenever any RTI related information is sought from these organisations. In most cases, when the applicant is asked to certify if the information sought pertains to human rights violations or allegations of corruption, the department concerned, that usually takes advantage of this provision of the law, is under no burden to prove that the divulging of the information hampers national security. Most often, Section 8(1) (h) of the RTI Act is cited to deny information in many of these cases. This section deals with information that would impede the process of an investigation or the apprehension or the prosecution of the offenders.

Official Secrets Act vs Right to Information Act

The withholding of information from the public has its roots dating back to British rule in India. The Official Secrets Act was enacted in 1923 during British colonial rule. The Act makes it punishable to indulge in any activity that involves helping an enemy state against the interest of India.

Over the years, the OSA has been misused by successive governments. It is one of the most draconian laws that we have inherited from the British Raj and has often attracted attention for its notoriety. The OSA has many provisions that are too ambiguous, often leaving room for its misuse. Some provisions of the OSA implicate whistleblowers and investigative journalists who work in the interest of the public.

Some other provisions of the OSA directly coincide with the provisions of the Right to Information Act. According to clause 6 of the Official Secrets Act, any information from a government office can be considered official information. Therefore, this directly overrides the freedom the Right to Information Act provides concerning access to information from government offices. But the Supreme Court has held that whenever there is a conflict between OSA and RTI, the RTI Act will override the OSA.

During the UPA-1, the second administrative reforms commission spearheaded by Veerappa Moily submitted a report “Right to Information: Master Key to Good Governance”. This report recommended the repealing of the Official Secrets Act and substituting it with a chapter in the National Security Act, containing provisions relating to official secrets. But this was downrightly dismissed by the government, citing that the OSA was the only law at the disposal of the government to deal with cases related to espionage, wrongful possession and communication of sensitive information detrimental to the security of the country. To date, no effort has been made to repeal the oppressive provisions of the Official Secrets Act. Even the freedom provided by RTI is also being diluted by refusing to give to the public at times even basic information related to government policies and the functioning of government departments.

Courtesy: Special arrangement

Filing RTI could be done seamlessly if there is better awareness of the existing facilities that make it easier for the common man. For example, if you are sending a query addressed to the central government from selected 4500 postal offices across the country, there is no need to pay RTI fees. We have around 1,60,000 post offices in the country, and right now, this facility is available in less than 3% of our postal offices. There is a need for extending this facility to more post offices so that there is a comprehensive geographic and demographic representation.

Also, the current system of different RTI websites for each state needs to be scaled -up bringing it all within a centralised framework replete with automated response systems in place that will keep the applicant informed about the status of the RTI application and updates. Such a system could eliminate the misuse of RTI, says Subhash Agrawal.

While this ensures meticulous and unhindered filing of RTI applications across the country, it is equally essential to ensure that it is handled with due diligence at the other end by the respective information officers. Since much depends on the integrity, knowledge and discretion of the information officers when it comes to upholding the spirit of RTI, the appointment of such officers must be done purely on the grounds of merit and not based on their allegiance to the government in power, says Gopal Prasad, RTI activist.

Recently, in Haryana, RTI activists had staged a demonstration outside the State Information Commission office in Chandigarh, accusing the state government of murdering the RTI Act by appointing state information officials and first appellant authority officials who were close to the ruling dispensation.

Not long ago, the Prime Minister, in one of his rallies, had said that very soon, every Indian will have a mobile handset and that every village in India will have high-speed optical fibre network connectivity soon. But unfortunately, while the government has decided to ensure that all Indians have access to mobile phones and internet connectivity, there have been very few efforts made to ensure that the information revolution related to transparency and good governance reaches the common man.

The right to information must be treated as the fundamental right of every citizen. While transparency reduces corruption, access to information empowers the citizens and helps them make informed choices. But we still need to go a long way to free RTI itself from the inherent forces that control its unrestrained functioning.

Ashish Chaturvedi is an RTI activist and a whistleblower of the Vyapam scam. He has faced numerous threats to his life ever since he became a complainant in the Vyapam case in 2014. More than 50 people connected to the Vyapam scam have died under mysterious circumstances ever since the scam was unravelled. Ashish Chaturvedi has been attacked 20 times, and the Madhya Pradesh police provides him 24x7 security because of the threats.