A commission under siege
News Analysis by Vidhya Subrahmaniam, published in "The Hindu", Mar31,2007
On the one hand, the CIC is up against RTI activists. On the other, it is fighting a Government that wants it reduced to a toothless body.
EIGHTEEN MONTHS ago, Parliament passed the Right to Information Act (RTI Act), 2005. Hailed as a democratic coup, the United Progressive Alliance Government's showpiece legislation ventured where none dared to go — into the dark and forbidding world of India's secrecy-obsessed bureaucracy. The Act took practical shape with the constitution of the Central Information Commission — the final appellate authority vested with the powers of a civil court under the Act. It was clear from even a cursory reading of the Act that an autonomous, proactive CIC — able independently to interpret its provisions — was the life source of the Act.
Yet currently the CIC is fighting two paradoxical battles. On one side, the Commission is up against RTI activists with whom it supposedly shares a common passion — for uncensored, unfettered information. The rights activists accuse the CIC, mandated by the Act to promote openness, of behaving instead "like a government." It might have been an obstructionist GoI department they were taking on instead of a free and transparent Information Commission judging by the charges: a general air of indifference, unacceptable delays in holding hearings, refusal to invite appellants to hearings, deliberate and repeated misplacement of applications, summary disposal of cases, reluctance to penalise erring Public Information Officers, gross misbehaviour with appellants, and so on.
If this seems an irony, consider who the Commission is fighting on the second front: the very government that created the RTI Act, and by implication the CIC. At the core of the CIC-Government turf war is a key question: who will interpret the Act? The Government's case, expressed repeatedly and emphatically by its nodal RTI Ministry, the Department of Personnel and Training (DoPT), is that the CIC's role is essentially clerical, further that the Government must and will have the last word on anything and everything to do with the Act. In the course of a recent hearing at the CIC on the issue of file notings, Additional Solicitor General P.P. Malhotra argued that section 12(4) of the RTI Act, which empowered the Chief Information Commissioner and other Information Commissioners to act autonomously, was limited to executive functions such as "fitting coolers and air-conditioners or buying of furniture or stationery." Mr. Malhotra made it clear that the Central government was not obliged to take instructions from the CIC even if this was meant to secure compliance with the provisions of the Act (section 19). Far from it, under section 30, "the Central Government and not the Central Information Commission" had the powers to "remove difficulties in giving effect to the provisions of the Act." Plainly put, the Government was not only appropriating the right to interpret the Act as it saw fit, it was asserting its superiority over the CIC by virtue of being the Government. The CIC is not amused.
If the situation calls for a spirited fight back, RTI activists are not obliging. Rights activists, who lined up behind the CIC in August 2006, when the CIC-DoPT face-off over file notings began, no longer empathise with the Commission. Activists Arvind Kejriwal and Manish Sisodia have instead taken their fight right into CIC territory by setting up a kiosk, a sort of alternative CIC, outside the Commission's office in the Capital. The kiosk is a natural attraction for RTI appellants returning empty-handed from the CIC. Over the past month, the kiosk has collected some 200 complaints, 99 per cent of them accusing the CIC of deliberate inaction, some even insinuating a collusion between the CIC and the bureaucracy. An astonishing case they cite is of Pramod Gupta who was directed to file his appeal in the prescribed format. When he did that he was told to present four copies of the appeal. When he did that the CIC returned all four copies to him, admitting later that this was mistake and so why does he not go back where he started — to the same PIO who rejected his complaint. RTI activists have filed two cases against the CIC in the Delhi High Court, and plan to drag it to the court in at least 15 other cases.
A major grouse of the complainants as well as rights activists is that the CIC is loath to impose penalties on defaulting PIOs as compulsorily required by the Act. Says Mr. Arvind Kejriwal, "What distinguishes this Act and makes it enforceable is the penalty clause. In the initial days PIOs furnished information for fear of incurring the dreaded penalty. Today they no longer fear the Act thanks to the CIC's leniency with the penalty clause. If the bureaucracy is defying the RTI Act with impunity, the reason is the CIC." Commission officials admit that so far they have imposed penalties only in a small fraction of cases but say that these are early days, and soon they will be stricter with erring PIOs.
It does not help that the CIC has to contend with a hostile Government. The issue of file notings, over which the two sides took opposing positions, continues to fester. Through the CIC's first year in office, several division benches of the Commission had ruled in favour of file notings much to the chagrin of the DoPT, which insisted that notings fell outside the RTI Act and going on to explicitly state so in a posting on its website.
In August 2006, the confrontation enlarged into a full-scale war with the CIC's repeated instructions to the department to remove the "misleading" website posting. In response, the DoPT's legal department questioned the validity of decisions taken by individual commissioners, holding that the Commission's full bench must hear every case that came before it.
The CIC responded to the challenge by constituting a full bench, which on January 29, 2007, reiterated its long-standing position that the Act as it existed allowed file notings. At the hearing, the DoPT mounted an all-out offensive, questioning the CIC's power to interpret the Act, disputing its authority to issue directions to a department of the government, and insisting that it had acted within rights in putting up a website posting that contradicted the CIC's ruling on file notings. The website posting reflected the DoPT's view, the department's counsel said, adding, "It [CIC] cannot ban a public authority much less the Central Government from holding a certain view."
The DoPT's website posting continues to this day. Asked if it was the Government's case that file notings were a secret, Satyananda Mishra, secretary, DoPT, told The Hindu that this was indeed so. Mr. Mishra maintained that too much fuss was being made of file notings, which were irrelevant in the larger scheme of the RTI Act.
It is anybody's guess how this will go down with RTI activists who, in August 2006, successfully battled a proposed Government amendment to exclude file notings.
The pity is the CIC, bound hand and foot as it is, has taken some far-reaching decisions. Its principled position on file notings aside, in a landmark decision this week, it lifted the veil of secrecy surrounding the appointment of judges. The CIC ordered the disclosure of facts relating to the appointment of Justice Virender Jain as Chief Justice of the Punjab and Haryana High Court.
The Hindu : Opinion / News Analysis : A commission under siege