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The Right to Information (RTI) law was enacted in 2005 to provide a practical regime for people to exercise their fundamental right to information by accessing information from public authorities. Under the RTI law, Information Commissions (ICs) are the final appellate authority and are mandated to safeguard and facilitate people’s fundamental right to information. ICs have been set up at the central level (Central Information Commission or CIC) and in the states (state information commissions).
In a judgment dated February 15, 2019 (Anjali Bhardwaj and others v. Union of India and others (Writ Petition No. 436 of 2018)), the Supreme Court held that information commissions are vital for the smooth working of the Right to Information law: “24) ……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.” The Court held that the number of commissioners required should be determined on the basis of the workload of the commission and gave directions to ensure timely appointment of information commissioners.
Commissions have wide-ranging powers including the power to require public authorities to provide access to information, appoint Public Information Officers (PIOs), publish certain categories of information and make changes to practices of information maintenance. ICs have the power to order an inquiry if there are reasonable grounds for one and to “require the public authority to compensate the complainant for any loss or other detriment suffered” commissions have been given powers to impose penalties on erring officials for violations of the Act.
The RTI law has empowered people in India to meaningfully participate in democracy and hold their governments accountable. Estimates suggest that every year 4 to 6 million (Peoples’ Monitoring of the RTI Regime in India, 2011-2013 by RaaG & CES, 2014) RTI applications are filed across the country. The law has been used extensively in the last 20 years to hold governments and functionaries accountable for corruption and lapses in the delivery of essential services and secure access to basic rights. It has also been used to question the highest authorities of the country on their performance, their decisions and their conduct.
Unfortunately, 20 years after the RTI Act was implemented, experience in India suggests that the functioning of information commissions is a major bottleneck in the effective implementation of the RTI law. Large backlog of appeals and complaints in many commissions across the country have resulted in inordinate delays in disposal of cases, which render the law ineffective. One of the primary reasons for the backlogs is the failure of central and state governments to take timely action to appoint information commissions to the CIC and state information commissions, respectively. In October 2023, while hearing a petition regarding vacancies in information commissions, the Supreme Court noted that the failure to fill vacancies is leading to a situation where “the right to information which is recognized under an Act of Parliament becomes a dead letter.”
Commissions have been found to be extremely reluctant to impose penalties on erring officials for violations of the law. Further, the transparency watchdogs themselves have not had a shining track record in terms of being transparent and accountable to the people of the country.
An analysis of information accessed under the RTI Act from 29 information commissions across India, and information sourced from the websites and annual reports of information commissions throws up some very concerning findings. The findings discussed below are from the Report Card of Information Commissions in India, 2023-24 brought out by Satark Nagrik Sangathan.
Under the RTI Act, information commissions consist of a chief information commissioner and up to 10 information commissioners.
Seven out of 29 ICs were found to be non-functional for varying lengths of time during the period under review, with all posts of commissioners being vacant — Jharkhand, Tripura, Goa, Uttar Pradesh, Telangana, Madhya Pradesh and Chhattisgarh. In the absence of functional commissions, information seekers have no reprieve under the RTI Act if they are unable to access information as per the provisions of the law.
The Jharkhand IC has been defunct for more than five years — since May 8, 2020, leaving people seeking information from public authorities under the jurisdiction of the Jharkhand SIC with no recourse to the independent appellate mechanism prescribed under the RTI Act if their right to information is violated.
Several ICs were headless and/or functioning without adequate number of commissioners during the period under review. These included the CIC, Maharashtra, Karnataka, West Bengal, Chhattisgarh, Bihar and Tamil Nadu.
The SIC of Maharashtra was functioning with just five information commissioners till more appointments were made and the number of commissioners was increased to eight. Due to the commission functioning at a severely reduced strength, the number of pending appeals/complaints rose at an alarming rate. As of June 2024, the SIC had a backlog of nearly 1,10,000 appeals/complaints — the highest in the country.
The report found that the CIC had been working with only 3 commissioners (Chief + 2 commissioners) for nearly one year, even as 8 posts lay vacant. These 3 commissioners were appointed in November 2023, on the eve of the CIC being rendered defunct as all the then incumbent commissioners were set to demit office. The backlog of appeals/complaints stood at nearly 23,000 cases.
The non-appointment of commissioners in the ICs in a timely manner leads to a large build-up of pending appeals and complaints.
The number of appeals and complaints pending on June 30, 2024, in the 29 information commissions, stood at 405,509. The backlog of appeals/complaints has increased significantly in recent years.
Analysis of the data on the backlog of cases in ICs and their monthly rate of disposal for the period under review, reveals that the Chhattisgarh SIC would take five years and two months to dispose a matter. A matter filed on July 1, 2024 would be disposed in the year 2029! For SIC of Bihar, the estimated time for disposal would be four and a half years while for Odisha, nearly four years.
The assessment showed that 14 commissions would take one year or more to dispose a matter.
Inordinate delays by ICs in disposing appeals/complaints violate the basic objective of the RTI Act. Long delays in the commissions render the law ineffective for people, especially for those living at the margins, who are most dependent on government services (and therefore need information the most).
Several commissions were found to have returned appeals/complaints without passing any orders during the period July 2023 to June 30, 2024.
The CIC returned nearly 14,000 appeals/ complaints while it registered 19,347 during the period under review — 42 per cent of the appeals/complaints received by the CIC were returned (This figure excludes appeals/complaints which were returned due to being time barred/ duplicates or because they pertained to SICs)! The CIC website discloses how many appeals/complaints were re-submitted to the CIC after addressing deficiencies. The data reveals that nearly 96 per cent of the cases which were returned to the appellant/ complainant were not re-submitted to the CIC by them.
The SIC of Bihar returned 11,807 appeals/complaints which is more than what it registered during the same period — 10,548.
The practice being followed by the CIC and some SICs, of returning a very large number of appeals and complaints without passing any orders, is extremely problematic. It creates an apprehension that this is perhaps a way of frustrating information seekers in a bid to reduce backlogs in ICs since many people, especially the poor and marginalised, would feel discouraged and often give up if their appeal/complaint is returned — over 95 per cent of the cases returned by the CIC were not re-submitted to the commission. Commissions must facilitate and assist people in the process of registering their appeals/complaints, rather than summarily returning them.
The RTI Act empowers the ICs to impose penalties of up to Rs 25,000 on erring PIOs for violations of the RTI Act. The penalty clause is one of the key provisions in terms of giving the law its teeth and acting as a deterrent for PIOs against violating the law. The assessment found that ICs imposed penalty in an extremely small fraction of the cases in which penalty was imposable. In fact, commissions appear to be reluctant to even ask the PIOs to give their justification for not complying with the law.
For the period July 1, 2023, to June 30, 2024, of the 23 commissions which provided relevant information, penalty was imposed in a total of 3,953 cases. Analysis of the figures for 20 ICs (which provided information on both the number of cases disposed and the number of cases where penalty was imposed) shows that penalty was imposed in just three per cent of the cases disposed by the ICs and the analysis showed that penalties were imposed only in five per cent of the cases where penalties were potentially imposable. The ICs did not impose penalties in 95 per cent of the cases where penalties were imposable.
Non imposition of penalties in deserving cases by commissions sends a signal to public authorities that violating the law will not invite any serious consequences. This destroys the basic framework of incentives built into the RTI law and promotes a culture of impunity.
The performance of many ICs, in terms of publishing annual reports and putting them in the public domain, was found to be dismal. The analysis revealed that despite the statutory obligation, many of the commissions have not published their annual reports on time.
As of October 12, 2024, 18 out of 29 ICs (62 per cent) had not published their annual report for 2022-23. In terms of availability of annual reports on the website of respective ICs, 33 per cent of ICs had not made their latest annual available on their website.
The authors work on issues of transparency and accountability and are associated with the National Campaign for Peoples’ Right to Information and Satark Nagrik Sangathan
Views expressed are the authors’ own and don’t necessarily reflect those of Down To Earth