AMENDING THE RTI ACT

As an activist in the field of right of information, 25 Jul 2019 is a red letter day for me. It was on that day that the first amendment to the Right to Information Act, 2005 cleared the last hurdle in the Rajya Sabha. After approval by the President of India it is now law.

Before proceeding further let us understand what these amendments are.

Firstly, sections 13(1) and (5) and 15(1) and (5) between them provide for chief information commissioners and information commissioners to have a fixed tenure of 5 years or up to 65 years of age whichever is earlier and also salaries, allowances and other terms and conditions of service as applicable to the Chief Election Commissioner /Election Commissioners at the Centre and Election Commissioner/ Chief Secretaries to the Government in the states.

The amendment have done away with the fixed term of 5 years and also empowers the Union Government to revise the salaries, allowances and other terms and conditions of service of the information commissioners, including the chief.

The first thing that should be obvious is that these amendments in no way affect the right of citizens to get the information under the Act. Shockingly, some of the well known names in the field of right to information are propagating exactly the opposite. That is, the government is undermining the sunshine law and that no information is going to be made available in future. 

An online petition condemning the amendments, initiated by former information commissioner of the Central Information Commission, Shailesh Gandhi, and supported by the likes of Aruna Roy, Nikhil Dey, Anjali Bharadwaj etc has been signed by 186,078 citizens as of 1143h on 12 Aug 2019. This certainly necessitates questioning their knowledge of the law as it is and even more so, their motivation.

Shailesh Gandhi is the only RTI activist who had the opportunity to enforce the law as an information commissioner. But horror of horrors, the worst decision in a 2^nd appeal I have in my files is also his. The 2^nd appeal was against the Public Information Officer and First Appellate Authority of the Central Information Commission itself. It was regarding the status of 4 appeals I had filed in two lots of two each. Though I had not received any information the information commissioner had dismissed the appeal stating that all available information had been provided. For more details readers may go through my blog ‘RTI Act-Shailesh Gandhi and Schopenhauer's Law of Entropy’ at

http://raviforjustice.blogspot.in/2012/06/rti-act-shailesh-gandhi-and.html.

The job of an information commissioner is simpler than that of a munsif. Since the RTI Act overrides all other laws these commissioners are bound only by the RTI Act and the rules made by the competent authorities for its implementation.

The RTI Act is also the simplest of laws in India. It is simple, concise and unambiguous. And it is these qualities that enable even laymen to identify when the information commissioners play foul. And the biggest foul played by these commissioners is failing to impose the mandatory penalty @ Rs 250/- per day of delay in providing the information sought.

Even when the information commissioners order information sought to be provided, proving both that the information was held with the public authority and the delay, they ‘fail’ to impose the mandated penalty which by this time would be the maximum at Rs 25,000/-. A power point presentation available at cic.gov.in/sites/default/files/2017/ac/s18-3.pptx shows that only in less than 4 percent eligible cases is penalty actually imposed. Just imagine the loss to the exchequer due to this delinquency of the information commissioners alone. Worse, this has actually resulted in the subversion of the law totally.  

In an application, dated 1/10/2007, under the RTI Act I had sought some information pertaining to the construction of railway road over bridges in a division. I did not get it. Ms Annapurna Dixit who considered the appeal directed the railways to provide the info and I got it on 13/6/2009. But she too failed to impose the Rs 25000/- penalty. She took only the period from the date of her decision to the date of providing the information for calculating the penalty, which was only Rs 7000/-. In spite of this shortcoming and the fact that the procedure was not exactly proper, this decision remains the best decision I have in my records. Readers can read the details in my blog http://www.slideshare.net/raviforjustice/the-best-order-by-an-information-commissioner-under-the-right-to-information-act.

Cut to 2013. I sought an update on the same list of bridges as was provided to me in 2009 plus some more details of a particular bridge under construction in my town. Forget about getting any information I did not get even acknowledgements for the application and 1^st appeal. Vijay Sharma, the Chief Information Commissioner, who considered the 2^nd appeal in July 2015, simply dumped the main requirement and just directed the public authority to provide part of the information sought of the bridge in my town. No penalty imposed. Details are available at http://raviforjustice.blogspot.com/2015/08/prosecute-vijay-sharma-chief.html.

Sec 219 of the Indian Penal Code provides for punishing public servants in judicial proceedings with up to 7 years of imprisonment for making decisions contrary to law. The actual wording is :

Section 219. Public servant in judicial proceeding corruptly making report, etc., contrary

to law

Whoever, being a public servant, corruptly or maliciously makes or pronounces in any stage of a judicial proceeding, any report, order, verdict, or decision which he knows to be contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

The only deterrent for the common citizen to approach the courts is the cost and delay involved. And this is what is being exploited by these information commissioners.

Thus the current amendment is not only a mandatory step in the right direction to curb wasteful expenditure but also would help to avoid dead wood accumulating in information commissions. If the status, pay and perks of the information commissioners are equated to munsifs then the young blood that would be infused could even give new life to the RTI Act, which is now definitely on ventilator.

Inducting young blood is only part of the requirement. The competent authorities will also have to use Sec 27(2)(e) of the RTI Act to specify the rules of procedure, including time frames, to be adopted by the Information Commissions in deciding the appeals. This, in some detail, is given in the blog at http://raviforjustice.blogspot.in/2017/04/rti-rules-2017redrafted-by-rti-activist.html.

In an article- As UT, J&K Now Falls under Central RTI Act 2005, but Problems Remain-published in Moneylife (https://www.moneylife.in/article/as-ut-jk-now-falls-under-central-rti-act-2005-but-problems-remain/57878.html) Vinita Deshmukh had brought out two good provisions in the JK RTI Act, 2009. One was that the information commissioners were required to decide appeals within 120 days and the other was for a provision for the first appellate authority to make a reference against an errant PIO to the information commission to impose a penalty.

Strictly speaking there needs to be provisions for the 1^st appellate authorities to impose the penalties, prescribed in Sec 20 of the Act, on the Public Information Officers and for information commissions to impose penalties on defaulting 1^st appellate authorities. As of now the 1^st appellate authorities are seen only as introducing delays and acting like post offices with no application of due diligence. For the effective implementation of the law such fine tuning is very much required. But for now the current amendment is definitely better than nothing.

12 Aug 2019