Decision of the Court

‘The subject matter in
hand involves questions of great importance concerning balance of rights of
individuals and equities against the backdrop of paradigm changes brought
about by the legislature through the Act ushering in an era of transparency,
probity and accountability as also the increasing expectation of the civil
society that the judicial organ, like all other public institutions, will also
offer itself for public scrutiny.

‘Information is the
currency that every citizen requires to participate in life and the governance
of society. In any democratic polity, greater the access, greater will be the
responsiveness, and greater the restrictions, greater the feeling of
powerlessness and alienation. Information is a basis for knowledge, which
provokes thought, and without thinking process, there is no expression.
“Knowledge” said James Madison, “will forever govern ignorance and people who
mean to be their own governors must arm themselves with the power knowledge
gives. A popular government without popular information or the means of
obtaining it is but a prologue to farce or tragedy or perhaps both”. The
citizens’ right to know the facts, the true facts, about the administration of
the country is thus one of the pillars of a democratic State. And that is why
the demand for openness in the government is increasingly growing in different
parts of the world.

‘The source of right to
information does not emanate from the Right to Information Act. It is the
right that emerges from the constitutional guarantees under Article 19(1)(a)
as held by the Supreme Court in a catena of decisions. The Right to
Information Act is not repository of the right to information. Its repository
is the constitutional rights guaranteed under Article 19(1)(a). The Act is
merely an instrument that lays down statutory procedure in the exercise of
this right. Its overreaching purpose is to facilitate democracy by helping to
ensure that citizens have the information required to participate meaningfully
in the democratic process and to help the governors accountable to the
governed. In construing such a statute the Court ought to give it the widest
operation which its language will permit. The Court will also not readily read
words which are not there and the introduction of which will restrict the
rights of citizens for whose benefit the statute is intended.

‘Having posed the question
whether judicial ethics exist as such, Justice J.B Thomas had stated:

“We form a particular
group in the community. We comprise a select part of an honourable profession.
We are entrusted, day after day, with the exercise of considerable power. Its
exercise has dramatic effects upon the lives and fortunes of those who come
before us. Citizens cannot be sure that they or their fortunes will not some
day depend upon our judgment. They will not wish such power to be reposed in
anyone whose honesty, ability or personal standards are questionable. It is
necessary for the continuity of the system of law as we know it, that there be
standards of conduct, both in and out of court, which are designed to maintain
confidence in those expectations.” (Judicial Ethics in Australia, Sydney, Law
Book Company, 1988)

    ‘The right to information often collides with the right to privacy. The government stores a lot of information about individuals in its dossiers supplied by individuals in applications made for obtaining various licenses, permissions including passports, or through disclosures such as income tax returns or for census data. When an applicant seeks access to government records containing personal information concerning identifiable individuals, it is obvious that these two rights are capable of generating conflict. In some cases, this will involve disclosure of information pertaining to public officials. In others, it will involve disclosure of information concerning ordinary citizens. In each instance, the subject of the information can plausibly raise a privacy pro-tection concern. As one American writer said: one man’s freedom of information is another man’s invasion of privacy.

•     ‘It was Edmund Burke who observed that “All persons possessing a portion of power ought to be strongly and awfully impressed with an idea that they act in trust and that they are to account for their conduct in that trust.” Accountability of the Judiciary cannot be seen in isolation. It must be viewed in the context of a general trend to render governors answerable to the people in ways that are transparent, accessible and effective. Behind this notion is a concept that the wielders of power – legislative, executive and judicial – are entrusted to perform their functions on condition that they account for their stewardship to the people who authorise them to exercise such power. Well defined and publicly known standards and procedures complement, rather than diminish, the notion of judicial independence. Democracy expects openness and openness is concomitant of free society. Sunlight is the best disinfectant.’

[Secretary General, Supreme Court of India vs Subhash Chandra Agarwal: LPA No 501/ 2009: judgment pro-nounced on 12.01 2010: Delhi High Court FB]

    Public Cause Research Foundation (PCRF) Report:

PCRF (A Parivartan Initiative) is a public trust started by some RTI activists to encourage public information officers to think and act positively while dealing with RTI requests.

If the PIO denies information under the RTI Act because he has done something wrong and wants to hide something, it is understandable. However, a large number of officers are rejecting informa-tion, not because they have something to hide, but because they are culturally oriented to say “No”. Often, one comes across officers who would say, “Why should I give information to him? Why is he asking for information? What will he do with this information? Who is he to question me?” These questions are reflective of a mindset with which our bureaucracy has been working for decades. They are simply not used to being questioned by the public.

Likewise, RTI Awards seek to comparatively assess the performance of all information commissioners, so that the best practices could be highlighted. During 2009, PCRF studied 51,128 orders passed by various information commissions during the calendar year 2008 and received feedback from 8,400 appellants. The performance of each com-missioner was studied in great detail in term of disposals and pendencies, pro-disclosure attitude, compliance to his orders, deterrence impact and satisfaction ratio.

The awards have been instituted in three categories: Information Commissioner (to felicitate an information commissioner who has enabled access to correct and complete information to maximum appellants and strictly enforced the RTI Act); Public Information Officer (to felicitate information officers who have provided complete and correct information with maximum number of RTI applications within the prescribed time limit); and citizens (to felicitate those citizens who created maximum public impact by using the RTI Act).
 

The following is the executive summary of this awards exercise:

The Right to Information (RTI) Awards was instituted in the year 2009. One of its objectives was to comparatively assess the performance of all information commissioners. For this purpose, the performance of each commissioner was studied in great detail. The study revealed a highly uneven implementation of the RTI Act across the country. It also highlighted the best practices which some commissioners may like to emulate.

    1. Methodology: For the purpose of this study, orders passed in 51,128 cases during 2008, by 72 Information Commissioners and 14 combined benches from 25 Information Commissions (barring Uttar Pradesh, Tamil Nadu and Sik-kim), were analyzed. We found that in 35,930 cases (i.e., 68% cases), orders were passed in favour of disclosure. We wrote letters to these 35,930 appellants. We also interviewed many of them on phone. We asked all of them one question: Did they finally get information after approaching the Information Commission? Finally, we received feedback from 8,400 appellants who shared with us their experiences with the Commission.

    2. Orders in Favour of Disclosures: Nationally, for every 100 appeals and complaints filed in Information Commissions, orders in favour of disclosure were passed in 68 cases. Information was denied in 22% of the cases and 10% of the cases were remanded back. Mr. Anil Joshi of Chhattisgarh, Mrs. Gangotri Kujur of Jharkhand, and the combined benches of Chhattisgarh passed 100% of the orders in favour of disclosures. A total of 34 commissioners passed more than 90% of the orders in favour of disclosures. Among the states, Assam, Chhattisgarh, Arunachal Pradesh, Punjab and Karnataka passed more than 90% of the orders in favour of disclosure. However, 10 commissioners and four states passed less than 50% of the orders in favour of disclosures, Mr. Naveen Kumar from Maharashtra and Mr. C D Arha from Andhra Pradesh were at the bottom of the list, with less than 20% of the orders in favour of disclosures.

    3. Compliance of Orders: However, a favourable order from the Information Commissioner does not translate into information. Nationally, just 38% of the pro-disclosure orders could actually be implemented. In the balance 62% cases, the people did not get information despite a favourable order. Arunachal Pradesh has done quite well on this score. They could get more than 90% of their orders implemented. In addition to Arunachal Pradesh, Mr. A Venkatratnam of Goa, Mrs. Gangotri Kujur of Jharkhand and the combined benches of Assam and Nagaland could get more than 70% of their orders implemented. However, on the lower side, 44 commissioners could get less than 40% of their orders implemented. Mr. R Dileep Reddy and Mr. C D Arha of Andhra Pradesh, Mr. M R Ranga of Haryana and Mr. M M Ansari, Mr. M L Sharma and Mr. S N Mishra of CIC could get less than 20% of their pro-disclosure orders complied with.

    4. Non-compliance: Many commissioners close a case after passing orders in favour of disclo-sure— without ensuring compliance thereof. The appellant has to struggle with the concerned public authority for a few months to get the order implemented. After writing several letters and making several visits to the public authority, when the order is still not complied with, he makes a complaint to the commission. Many appellants get tired and do not file complaints again. Even when a complaint is filed, the same comes up for hearing in its due course after a few months, because most of the commissions have huge pendencies, thus causing hardships to appellants. Mostly, the complaint is disposed of without a hearing and with a letter to the public authority to comply with the Commission’s earlier order. The public authority still does not obey the order. Even if a hearing takes place in the Commission, the case is again closed with directions to the officer to provide information rather than taking any penal action. Mostly, the order is again not complied with.

    5. Continuing Mandamus: Some states follow the practice of “continuing mandamus”. They do not close a case after passing orders, but post hearings subsequently for compliance thereof. The case is not closed till the appellant reports satisfaction. These are Punjab, Uttarakhand, Bihar, Orissa, Karnataka, Arunachal Pradesh, Gujarat and some commissioners like Mrs. Gangotri Kujur of Jharkhand, etc. Their compliance rates are better than other Commissioners and Commissions. However, the problem with most of them is that barring a few, they have been quite soft with officers. Repeated non-compliance is ignored. As a result, in some cases, several hearings take place spanning over several months which leads to attrition and tires out the appellants. When the appel-lant stops coming, the cases are closed with the assumption that the appellant might have received all information. Therefore, continuing mandamus needs to be coupled with strict enforcement.

    6. Arrest Warrants: Arunachal Pradesh is the first and the only Information Commission in the country to have issued bailable arrest warrants under section 18(3) of the RTI Act for non-compliance of the Commission’s orders. Non-compliance of their orders is treated as a complaint under section 18 of the RTI Act. Section 18(3) of the RTI Act empowers the Commission to issue bailable arrest warrants and seek production of documents. Arunachal Pradesh has used this section quite effectively to get its orders implemented. Other commissions across the country may also like to invoke their powers under this section to improve compliance.

    7. Disposals: Mr. Vijay Baburao Borge and Mr. Naveen Kumar have disposed the maximum number of cases: 383 and 333 respectively, per month. However, they achieved this disposal by rejecting or remanding back almost 80% of their cases without hearings. Mr. Shailesh Gandhi stood out by disposing 270 cases per month, in the first few months, and more than 400 cases per month later. He could bring down his pendency from 12 months to less than 2 months. At the lower end are the north-eastern states, who disposed very few cases, because they get few appeals. However, there are some commissioners who disposed very few cases despite huge pendencies. Commissioners who disposed less than 10 cases per month, despite huge pendencies, are Mr. Dileep Reddy of Andhra Pradesh, Mr. Arun Kumar Bhattacharya of West Bengal, late Shri G G Kambli of Goa and Mr. R K Angousana Singh of Manipur.

    8. Imposition of Penalties: The RTI Act mandates that every violation of the Act “shall” be penalised unless there was a reasonable cause on the part of the PIO. The penalty amount has to be deducted from the PIO’s salary. However, just 2.4% of the recorded violations across the country were penalised. In 74% cases of recorded vio-lations, the Hon’ble Information Commissioners did not even question the PIO as to whether there was a “reasonable cause” or not. The PIOs were questioned in just 26% cases through show cause notices. However, as many as 65% of these show cause notices remained pending at the end of the year. Some 23% notices were dropped because the Commissioners found the explanations and excuses presented by PIOs in these cases as “reasonable”. The combined benches of Orissa imposed penalties in almost 30% of pro-disclosure cases. As an individual Commissioner, Mr. D N Padhi of Orissa was at the top, even though he imposed penalties on less than 11% of pro-disclosure cases. There are six Commissioners who imposed penalties in more than 10% of pro-disclosure cases. Nearly 50 Commissioners and 11 Commissions, including the CIC, imposed penalties in less than 2% pro-disclosure cases. What was alarming was the fact that there were 29 Commissioners and three Commissions who did not impose even a single penalty despite thousands of recorded violations.

    9. Pendencies: Huge pendencies have become such a severe problem in some states that it takes more than a year for a case to come up for hearing if it were filed today. Some urgent steps need to be taken to address mounting pendencies. States with more than a year’s pendency are Orissa, Madhya Pradesh, Maharashtra, UP and some of the Commissioners at CIC. Strict imposition of penalties will have a direct bearing on the number of appeals re-ceived at the Commission. When the RTI Act came into effect, officers were scared of violating it because of its strong penal provisions. But when they saw that the penal provisions were not being strictly enforced, they started taking RTI lightly. If PIOs do not take RTI Act seriously, the number of appeals at Commissions will increase exponentially. Therefore, the inflow of cases to the Commission can be reduced with strict enforcement of penal provisions.

    10. State of Records: In many Commissions, the state of records is not very healthy. Many Commissions do not even know for sure how many cases they disposed. At different times, they gave us different figures of disposals. Many Commissions do not have copies of all orders. Uttar Pradesh claimed to have passed 22,658 orders during 2008. However, they said that they do not maintain copies of all orders. Tamil Nadu said they had passed more than 40,000 orders but provided us with only 900 orders.

    11. Missing Records: The trend of PIOs reporting records to be missing or lost seems to be on the rise. In many cases, this is treated as a legitimate excuse for denial of information. However, in some parts of the country, when the Commissioners threatened police action, suddenly these ‘missing’ records came out, which means that “missing records” was merely an excuse given by the PIOs to deny information. Mr. Vijay Kuvalekar of Maharashtra has been very successful in forcing PIOs to trace out records in many cases when he threatened police action.

    12. Arbitrary Commissioner Strength: Commissioners seem to be appointed by state governments without reference to the pendency of that Commission. On one hand, we came across states like Arunachal Pradesh that has five Commissioners for 43 appeals, and on the other hand, we have Gujarat that has one Commissioner for a pendency of almost 5,000 cases. It is important to formulate some guidelines that state how much pendency a Commissioner should be appointed.