‘Only law for people weakened’: Nearly 2 decades on, gaping holes in RTI machinery

“Since 1947, the RTI (Right to Information) Act is the only law which was exercised by people. This is the only law under which officials are accountable… But in Jharkhand, that right stands withdrawn.”

Sunil Mahto, a Jharkhand-based high court lawyer and an RTI activist, lamented how the state’s information commission has been non-functional for the past four years due to the non-appointment of commissioners. 

Information commissions impose penalties on erring officials and hear second appeals. And in the absence of one, he said, public information officers who are mandated to provide information to RTI applicants have been “emboldened”. “They are now more unwilling to share information because they know there won’t be any repercussions for denial of information.” 

Jharkhand is only one among four states with a defunct state information commission. 

The RTI machinery, in fact, is struggling in many places across India. There are over 4 lakh pending appeals and complaints, and the backlog is increasing, suggests an annual report recently released by the Satark Nagarik Sangathan – a transparency outfit which had filed 174 RTI applications to arrive at these findings. 

This defeats the key objectives of the RTI law, which came into effect in 2005 after a long battle by members of a civil rights organisation, the Mazdoor Kisan Shakti Sangathan, in Rajasthan. It had all started with the outfit’s members crusading for minimum wages, and eventually requiring access to government documents and information to secure their rights. 

Delayed decisions

At least four state commissions in Jharkhand, Telangana, Tripura and Goa have neither commissioners nor chief commissioners. There are five states where commissions are functioning without their heads. Many are working at reduced capacity.

More than 4 lakh appeals and complaints are pending with the central information commission (CIC) and 28 state information commissions (SICs). For context, the Supreme Court has almost five times less pendency.

But not all complaints and appeals reach the hearing stage. Many are dismissed before being admitted. For example, Maharashtra returned 42 percent of the total 19,347 appeals or complaints because of deficiencies in formatting or lack of documents, thereby frustrating information seekers. There were not many who would re-submit the corrected appeal. For example, 96 percent of the appeals or complaints returned by CIC were not resubmitted by applicants.

The role of CIC and SICs is crucial in the RTI framework as denial of information by government authorities can be challenged before them as a second appeal. A huge backlog at these commissions results in delays for decisions. Orders of SICs and ICs can be challenged only in high courts and the Supreme Court.

The 2019 amendments to the act further weakened it. And the Digital Personal Data Protection Act, 2023, removed a section in RTI that dealt with personal information. Now DPDA has ensured that no personal information is shared. Earlier, under the RTI Act, denial of personal information was not absolute.

“Denial of personal information is one of the biggest threats,” said Shankar Singh, co-founder of MKSS.

As more and more people have started using RTIs, governments have realised that questions are not related to only pensions, wages or other personal issues, Singh said. “Now, bigger issues such as electoral bonds are raised through RTI. They can shake the foundation of governments. Because of this, governments are making efforts to weaken the act by not appointing commissioners,” he said.

Defunct machinery

Among the 29 SICs and CIC, Jharkhand’s has been non-functional for the longest period of time: more than four years. Tripura has the second-worst track record at over three years, followed by Telangana (19 months) and Goa (seven months).

Lawyer Mahto said a few petitions have been filed in the Jharkhand high court as a second appeal. “But how many can approach the high court? Not many. The high court did not decide on the second appeals but directed that as soon as the commission is formed, these second appeals should be heard on priority basis,” he said.

Just before the state election announcement, the Jharkhand government had issued an advertisement to fill up the posts. But with the model code of conduct, the process has come to a standstill, said Mahto. 

People have “no recourse to the independent appellate mechanism prescribed under the RTI Act if their right to information is violated” read the SNS report prepared by Anjali Bhardwaj, Amrita Johri, among others.

This is despite the Supreme Court 2019 order that proper functioning of commissions is vital for effective implementation of the RTI Act.

In addition, five commissions in Chhattisgarh, Maharashtra, Karnataka, Uttarakhand and Odisha did not have chief information commissioners.

The act mandates that each commission have 10 commissioners and a chief information commissioner. Despite this, several states and even the CIC are functioning with reduced capacity. For example, CIC has been functioning with just three commissioners, including its chief, for the past one year.

Backlog

The Maharashtra SIC, which has the chunkiest backlog at 1,10,000, has been functioning with just six commissioners. “The apex court, in its February 2019 judgment, had observed that given the large pendency in the Maharashtra SIC, it would be appropriate if the commission functioned at full strength,” read the report. However, the Supreme Court’s expectation from Maharashtra is yet to be fulfilled.

In the last five years, the backlog in 29 commissions has increased by around 80 percent, showed the report. From 2019 to 2024, the number of pending cases jumped from 2.18 lakh to 4.05 lakh.

Maharashtra has the highest number of pending cases, followed by Karnataka, Tamil Nadu and Chhattisgarh.

The SNS also estimated the time taken by each commission – depending on their monthly rate – to dispose of appeals and complaints. The estimate shows that at least 14 commissions would take one year to dispose of each matter.

Chhattisgarh would take the longest: five years and two months. Each matter in Bihar, Odisha and Arunachal has to wait for more than three years before hearing. It is two years in Punjab and Haryana.

Applications returned

The act does not prescribe any format in which an appeal or complaint could be filed before SICs or CIC. However, some states have prescribed rules on formats and lists of documents to be attached with the appeal or complaint.

Seven information commissions had returned appeals and complaints because of procedural deficiencies.

The CIC has returned fewer than 14,000 appeals or complaints against 19,347 registrations – clocking a return rate of 42 percent. Around 96 percent of these returned appeals or complaints were not resubmitted with correction.

“In this context, the practice being followed by the CIC and some SICs, of returning a very large number of appeals and complaints without passing any orders, becomes extremely problematic. It also 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,” read the report.

While many argue that imposing a penalty on public information officers for denial of information may work as a deterrent for officials who willfully deny information, ICs are empowered to impose such penalties, up to Rs 25,000. But such fines have been imposed in only 3 percent of the cases disposed of by ICs, according to the SNS analysis.

The first chief information commissioner, Wajahat Habibullah, believes that imposing penalties blindly may not necessarily bring about a change. “If challenged in courts, such penalty orders have to stand the judicial test too,” he said.

The RTI Act also prescribes SICs and CIC to publish their annual reports on their website. As many as 18 of the 29 ICs were yet to publish their annual report for 2022-23. 

Shankar Singh of MKSS said their fight to strengthen the act would continue. “One thing that requires utmost attention is that a copy of an RTI application should also be shared with the police station concerned in order to protect the applicant.” 

The Whistleblower Protection Bill has been pending with Parliament since 2014.

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