The story so far: In 2005, the Right to Information Act painted a revolutionary picture: empowered citizens holding a fundamental democratic right to know how their governments use money and power. It had the potential to “change the contours of democratic governance in India,” activist Aruna Roy wrote. Now, the legislation risks being reduced to a “dead letter” if governments do not fill up vacancies in the 26 Information Commission (IC) offices, the Supreme Court cautioned the government earlier this month.
India’s RTI Act, cultivated to protect people’s rights and hold the government accountable, has fallen into redundancy, a petition before the Supreme Court says. Information Commissions do not have enough officials to respond to cases as they pile up, festering into huge backlogs, delays, secrecy and inevitably impeding a citizen’s right to hold the state accountable. This regime of transparency now lies clogged, with many bodies no longer accepting RTI requests, the petitioners added.
The Central Information Commission (CIC), the figurative custodian of RTI’s spirit, is functioning without a Chief Commissioner. Further, four Information Commissioners at the CIC are set to retire on November 6, creating a gap that will leave the CIC defunct for the first time since the RTI Act was passed, co-petitioner Anjali Bhardwaj wrote on X, saying it would be a “gross violation of peoples right to information.”
Similar concerns have been raised by activists over the years; it was revived recently when the Act was amended for the second time in five years with the passing of the Digital Personal Data Protection Bill. A blanket ban on disclosing “personal information”, ushered in with the 2023 Amendment, would further pave the way to powerful officials evading accountability, the National Campaign for Peoples’ Right to Information (NCPRI) warned earlier this year. Others argue that similar bureaucratic bottlenecks, developed under the heedless gaze of ICs, have undone the promise of RTI.
“...in the entire scheme provided under the RTI Act, existence of these institutions [ICs] becomes imperative and they are vital for the smooth working of the RTI Act.”Supreme Court in Anjali Bhardwaj and others v. Union of India and others
The state of Information Commissions
India has about 25 State Information Commissions (SICs) and one Central Information Commission (CIC). The RTI Act mandates that each Commission have one Chief Information Commissioner, and up to 10 Information Commissioners. The number of information commissioners would depend upon the workload, “as may be deemed necessary”, the Supreme Court said in 2019 while ruling on a PIL about defunct ICs.
There is a huge chasm between sanctioned posts and realised posts: ICs in India operate at a reduced capacity or without a Chief Information Commissioner and at times are defunct, according to the NGO Satark Nagarik Sangathan. In a 2022 report, the NGO assessed information on the number of commissioners, the status of appeals and complaints sitting before ICs, and the quantum of penalties. Two commissions (Jharkhand and Tripura) were defunct between 2021 and 2022.
“For the last 29 months, people seeking information from public authorities under the jurisdiction of the Jharkhand SIC have had no recourse to the independent appellate mechanism prescribed under the RTI Act if their right to information is violated,” the report stated. At least six ICs were functioning without a chief officer. Several others did not have the required staff to address a rising number of appeals and complaints; Maharashtra saw a 100% increase in backlog in three years, and it would take approximately five years and three months for the SIC to dispose of these cases. The Central Information Commission, had it appointed three commissioners, might have made some headway with its 26,800+ caseload.
A 2020 report by Transparency International found that during the pandemic, one-fourth of information commissioner posts were vacant, and women held only eight out of 165 posts.
The Supreme Court in February 2019 reiterated that “the proper functioning of commissions with an adequate number of commissioners is vital for effective implementation of the RTI.”
Why are there vacancies?
The demand-supply gap of information commissioners reflects an appointment process that has stalled over the years, the 2022 report found. Appointments were not made in a timely manner, and not at the scale needed to meet an IC’s workload. Taking note of the CIC’s four vacancies, the Supreme Court in December 2019 directed the Union Government to fill all positions within three months.
The government failed to comply: by 2021, it had only one new commissioner, and the existing commissioner was elevated to the position of Chief. “This is particularly concerning given the humanitarian crisis induced by the COVID-19 pandemic, which has made people, especially the poor and marginalized, even more dependent on government provision of essential goods and services like healthcare, food and social security. Without access to relevant information citizens are unable to get their rights and entitlements and corruption thrives,” the report pointed out. SICs across Assam, Bihar, Rajasthan and Uttar Pradesh not only remained chief-less during the lockdown but also had minimal staff present. Public information appeals regarding health data, the exodus of migrant workers, and finances under the PM Cares Fund were subsequently ignored.
The lack of a Chief Information Commissioner adds to the issue. Under the RTI Act, the Chief supervises and manages information; coordinates with dispatch staff and engineers; and directs the flow of operations. During crises like the pandemic and lockdowns, when millions of families depended on government welfare schemes, the RTI Act requires the Chief to cater to the urgent need for accurate information about available hospital beds or essential drugs. India’s CIC retired in August 2020.
Up until the 2019 Amendments to the RTI Act, a CIC would hold a five-year fixed term and comply with terms of service, a status equal to the “Chief Election Commissioner and that of a Supreme Court judge,” journalist Saurav Das wrote in The Hindu last year. Post the amendment, the union government can decide the tenure and salary of commissioners, thus also governing the independence of the ICs.
An additional challenge is how IC appointments happen and who is usually appointed. The RTI Act called for commissioners to be appointed from diverse backgrounds, requiring them to be people of “eminence in public life;” experienced in “law, science and technology, social service, management, journalism, mass media or administration and governance;“ and not “hold any other office of profit or (be) connected with any political party or carrying on any business or pursuing any profession.”
The nomination pool is narrow, since advertisements for ICs are put out only in two English and Hindi-language newspapers. Further, the charge of identifying “eminent people” lies with the Search and Selection Committees. In 2018, the Union Government formed a committee to fill vacancies in the CIC, comprising the Prime Minister, Union Minister Arun Jaitley, three Secretaries to government offices (who are IAS officers) and the then-director of the Institute of Economic Growth. The Committee received 68 applicants, with at least four women, and shortlisted four candidates. All of them were retired bureaucrats, and no one met the areas of specialisation specified under the RTI Act and reiterated by the Supreme Court. Three out of the four shortlisted candidates had, curiously, not applied at all. No government document specifies the eligibility criteria applied to filter through and select applicants.
Several reports have found that Search and Selection Committees favour male, serving/retired IAS officers, with these positions becoming a “parking lot for retired civil servants.” As of 2022, 58% of officers were government officials and 15% were former judges. And out of the 130 CICs at that time, 87% were retired government officers. The representation of women in ICs was particularly stark: no woman headed an IC as of October 2022.
Activists also say that a lack of political will to strengthen ICs, along with absent monitoring mechanisms, make for poor record- keeping and implementation of RTI guidelines.
What are the immediate concerns?
Vacancies directly translate into increased pendency and inordinate delays in disposing of cases. As of September last year, at least three lakh pleas awaited attention in ICs. This does not include data from ICs that lie defunct, such as Tripura and Jharkhand. Given the backlog and monthly disposal rate, it would take the West Bengal State Information Commission 24 years and three months to dispose of a complaint filed on July 1, 2022.
Moreover, at least 44% of RTIs were filed to access information that should be proactively available in the public domain as per Section 4 of the RTI Act, as per a 2018 study. Suo moto disclosures have reduced over the years. Four years ago, CIC passed orders seeking details of RBI’s willful defaulters and the Prime Minister’s education qualifications. “Now, the CIC has become more like a walking dead institution, where records will show that not a single order for disclosure has been forthcoming in matters of public importance,” Mr. Das argued.
The 2020 report also noted that the “relative[ly] lackadaisical attitude of the authorities towards the information seekers as RTIs are transferred from one public authority to another.” An RTI filed to seek details of COVID-19 treatment facilities across districts was flung across departments. Rama Nath Jha, the director of Transparency International India, told The Hindu earlier that in addition to the way commissioners are appointed, the casual attitude of local officers “while rejecting RTI applications are major challenges in the 17-year journey of RTI in India.”
ICs, sans efficiency and without qualified people, create a culture where corruption, leniency and secrecy thrive, experts say. The Satark Nagarik Sangathan report found commissions did not impose penalties in 95% of cases where penalties should have been levied, letting errant officials off the hook. Long delays often mean that officials who engage in bribery or corruption may have already retired by the time the case is taken up. The IC’s affected mode of operation, which violates the “transparency” mandate of the RTI Act, is governed under a “new jurisprudence,” Mr. Das added. This system is characterised by a long waiting time, delegating matters to ministries, and ignoring requests under the guise of national interest, thus creating “additional hurdles in a citizen’s quest for accountability.”
In the absence of well-oiled Information Commissions, people in distress are unable to obtain necessary information on social security programmes and healthcare facilities, activists say. The 2023 Amendment further deters people’s access to social welfare by impeding social workers from conducting ‘social audits’ of ration distribution among beneficiaries. The transformative potential of RTI lies in empowering citizens, promoting good governance and carving channels to access social welfare goods, all of which are imperilled if the guard-post is not manned.