The Modi government has ‘gagged’ the Parliament from asking questions during the upcoming Monsoon Session. Though, after a massive hue and cry, it has allowed unstarred questions (which can be answered with written responses and ministers need not orally answer them in the House) to be asked. But no supplementary questions can be asked. So if a response is evasive or unsatisfactory, well, bad luck.
India’s Opposition called it a “murder of democracy in the name of a pandemic.” Many autocratic regimes have used this pandemic as a chance to grab even more power and escape accountability. While MPs have their most important privilege curtailed inside Parliament, the people of India are also facing a similar situation.
People can hold their governments accountable using the Right to Information Act. Introduced by the UPA-1 government in 2005, this law has been a huge success, despite many failed and a few successful attempts to reign in this pro-people law. Most people use this law to solve problems related to their passports, ration cards, cut down red tape in government paperwork and some, like me, also to keep a check on their governments. But in the past few months, the government has virtually shut down any answerability by illegally and on untenable grounds, rejecting RTI applications asking information related to the pandemic and anything else that may be embarrassing (Article 370, CAA, UAPA, NIA, etc).
In today’s “new India,” questioning the government can be a slippery slope and we can be branded “anti-nationals,” “busybodies” or “meddlesome interlopers.” So you can see why governments hate this time-bound legislation. Before I explain about my PIL that I’ve filed in the Madras High Court, a brief introduction about the RTI Act.
Under the RTI Act, a three-tier system for ensuring answerability is established. The first tier is the Public Information Officer (PIO) of a public authority, who is required to furnish information within 30 days.
If the information is not received within that time or if the information is unsatisfactory to the applicant, they may file a first appeal to the First Appellate Authority (FAA), which is the second-tier of the system and is a senior-level officer in the PIO’s department. Such first appeals are to be decided within 30 days or a maximum of 45 days by the FAA.
Again, if the applicant is not satisfied or does not receive a response, they may file a second appeal or a complaint before the Central/State Information Commission (CIC/SIC). It is the third and final tier in the system and has powers to punish the PIO with either a fine up to Rs 25,000 or disciplinary action in more serious cases.
Coming back to the PIL.
The Madras High Court has issued notices to the Centre, the Tamil Nadu government, the Central Information Commission and the Tamil Nadu State Information Commission (TNSIC) in response to my PIL, filed through advocate MV Swaroop, seeking various directions for improving the right to information (RTI) regime and for facilitating RTI applications and hearings related to the pandemic. The division bench of Justices MM Sundresh and R Hemalatha have posted the matter for further hearing on 17 September.
First, let us talk about the pandemic-related issues for which I have requested the court’s intervention, in the interim.
1. Pandemic-Related Issues
The petition points out that since the average waiting time for a case to be heard by the CIC and Tamil Nadu SIC is almost two years, several important pandemics related RTI second appeals, including those filed under ‘threat to life and liberty’ are not being heard on priority by these commissions. If this continues, most cases will become infructuous or pointless in future.
Under Section 7(1) of the RTI Act, a Public Information Officer (PIO) is also mandated to furnish information to an applicant within 48 hours if it relates to ‘life and liberty’ of an individual. This timeline has become necessary in the present pandemic wherein an applicant may seek information on the availability of beds, testing parameters, emergency medical services or even decision-making process since it has huge implications on public health and safety. “However, in the event, such PIO does not release the information sought for, there is no efficacious remedy available for the applicant to receive such information within such time that may be suitable for him to use it and make decisions,” the PIL contends.
What led to Prime Minister Narendra Modi’s knee-jerk decision to dramatically announce a national lockdown from midnight of 24 March, without giving any time (but just four hours) for people to prepare? How is our data, collected through the Aarogya Setu app, being used? Will I be wrong to say that all these questions have to be answered now and not after two years when Aarogya Setu is forgotten?
As my first interim prayer, I have requested the court to order these commissions to constitute a special COVID bench to hear matters relating to the pandemic and dispose them off, preferably within 15 days. A lot can change in 15 days during a pandemic. This is all the more necessary since there are no fixed guidelines for securing an urgent hearing on such time-sensitive matters in these commissions. And for all I know, the TNSIC is not even functioning since March. Ironically, they don’t reply to RTI applications either.
As my second interim prayer, I have requested the court to order the DoPT to give effect to a CIC order, passed on 22 April 2020, by Information Commissioner Vanaja N Sarna directing DoPT to device an online mechanism for implementation of Section 7(1) ‘life and liberty’ clause. She had suggested that a unique email ID be created by all public authorities to accept such time-sensitive RTIs, especially in the wake of the pandemic.
As expected, the DoPT did not act. Almost five months have passed and replying to my RTI query seeking to know what steps have been taken to implement this order, the DoPT’s PIO Under-Secretary Rakesh Kumar in a five-worded cryptic reply said that “the matter has been noted.”
What he forgot to mention is that it has been duly noted and kept in a cold-storage, again due to the pandemic (the same excuse!). And then the government criticises people for rushing to the courts on anything and everything!
Now, coming to the larger issues plaguing the RTI regime.
2. Guidelines for Fixing Time-Frame for Disposal of Cases in Commissions
As of date, there are around 36,000 cases pending in the CIC. A figure for TNSIC is not known since the information is not available in the public domain and was also not provided under RTI by the TNSIC. But as per an estimate, it could be somewhere around 10,000. Such large pendency of cases defeats the very purpose of the RTI Act, where time is of the essence.
Due to this, it takes almost two years for a case to be heard by the commission. People seeking information about their ration cards, passports, government paperwork and government’s decision-making process cannot be kept waiting for two years.
The information must be provided when required the most, else it comes to little use. It is important to note that 99 percent of the cases in the Information Commissions hardly involve complex legal arguments. They are, at best, decided within 10-15 minutes by the Information Commissioners. For such matters, it is almost cruel to keep people waiting for two years. The situation is worse in TNSIC as there is no mechanism to track cases and unlike the ‘first-come-first-serve’ system followed by the CIC to hear cases, there is no such system in the TNSIC.
The PIL requests the court to order DoPT (for CIC) and Tamil Nadu Personnel and Administrative Reforms Department (for TNSIC) to issue guidelines (obviously after consultations with civil society members) fixing timeframe for disposal of cases in both the commissions. The PIL takes the support of a Supreme Court judgment in the matter of Anjali Bhardwaj vs Union of India of 2019 where the Court had observed that “the RTI Act is time-bound legislation and prescribes statutory timelines for providing information and that Central/State Information Commissions ought to decide the appeals/complaints within the shortest time possible, which should normally be a few months from date of service of complaint or appeal to the opposite side.”
The PIL also takes the support of two similar judgments of the Karnataka HC and Calcutta HC in the matter of Jayaprakash Reddy Vs Union of India & Ors of 2015 and Akhil Kumar Roy Vs Bengal Information Commission & Ors, which had fixed an upper limit for deciding of second appeals/complaints.
3. Guidelines for Fixing Time-Frames for Disposal of Cases Pertaining to ‘Life And Liberty
If an applicant files an RTI application under Section 7(1) ‘threat to life and liberty’, the PIO should, ideally, provide the information within 48 hours. But the Act gives PIO the liberty to decide whether such an application in-fact constitutes a threat to one’s life and liberty or not. But what if the PIO wrongly decides that it is not? Or the PIO ignores such an RTI and treats it as a regular RTI? In such a case, “there is no efficacious remedy for the applicant to get access to such information,” the PIL states.
The FAA has an upper limit of 45 days to decide first appeals but the RTI Act does not prescribe any separate, tighter deadline, like in the case of PIO, to dispose of first appeals relating to life and liberty. The commissions, too, are not prescribed any fixed deadline to dispose of such cases that are urgent and time-sensitive.
In an RTI reply to me, the CIC has admitted that it has no guidelines for reducing the pendency of cases. Also, the commission does not clearly distinguish between second appeals and complaints filed under threat to life and liberty, which should clearly be prioritised.
To fix this lacuna in the law, the PIL prays the court to order DoPT and TN Personnel and Administrative Reforms Department to issue guidelines fixing time-frames for urgent and timely disposal of life and liberty first appeals before FAAs and second appeals/complaints before the Information Commissions. This will ensure that cases of this nature are treated on a different footing and with more urgency than regular RTI applications, as was envisaged and intended by Parliament.
(Saurav Das is an RTI activist and freelance journalist. This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)