What right to information?

An RTI request could be a matter of life and liberty. Even when it is not, PIOs should be disposing it of in time – a reality check as RTI Act enters its 10th year

jasleen

Jasleen Kaur | January 12, 2015 | New Delhi


Sumitra Devi has used the RTI to seek her pending pension.
Sumitra Devi has used the RTI to seek her pending pension.

Delhi winter can be harsh, really harsh. All the more for a pavement dweller living on alms. The smile on the wrinkled face of Sumitra Devi, 70, will, however, never tell you the story behind her daily struggle. She lives under the sky outside the Lal Gumbad camp, a slum settlement behind the lush green locality of Panchsheel Park in south Delhi. Devi did have a roof over her head and her own clothes were enough to keep her warm. But that was two winters ago.

Then too life wasn’t exactly a bed of roses for Devi, but it wasn’t one of thorns either. A widow, Devi used to live in a one-room rented house inside the camp. Her two daughters are married and stay in the same camp with their families while her only son died a few years ago. Her life was entirely dependent on the widow pension of '4,500 that she used to receive every three months (Rs 1,500 a month) from the department of women and child welfare, Delhi government. It was not a stately sum, but was enough to meet her basic needs of food and medicines besides the house rent.

In April 2012 Devi’s pension was abruptly stopped. The government did not even inform her why it had been stopped. Devi’s landlord was considerate and allowed her to stay in the house for a couple of months even without paying the rent. But with no money in hand, she was eventually forced to leave.

Since June 2012 she has been homeless, depending on others for her basic needs. “For the first few months I kept asking them (the department officials) if there was something I needed to submit, they said even they did not know the reason behind it,” says Devi.

Despite many visits to the office of the department at Lajpat Nagar in south Delhi, and later at the department’s headquarters in north Delhi, officials did not provide any information on why her pension had been stopped. The last pension she received was on March 6, 2012 of '4,500 for the January-March quarter. “Ever since the pension has stopped I have suffered immensely. Even for basic necessities I am dependent on others. It was never so before.”

Meanwhile, on August 4, 2012, Devi opened an account in a nationalised bank, Syndicate Bank, with the help of a local civil society group Satark Nagrik Sangathan (SNS), a citizen’s group working to promote transparency and accountability in government functioning and to encourage active participation of citizens. For another 10 months she kept visiting the department but there was no help in sight.

On June 7, 2013, with the help of SNS, she filed an application under the Right to Information (RTI) Act, seeking details about the status of her pension, reasons why she was not receiving her pension, the designation and office address of the official/s responsible for the same and to whom she could file the complaint.

She received the response to the RTI on July 3, 2013 saying “your pension may have been stopped by the head office.” Further, the PIO said that the reason why the pension “may have been stopped” was because she had not transferred her account from a post office to the bank.
The public information officer (PIO) at the department provided an incomplete answer, says Amrita Johari working with SNS. “From the RTI reply it appears that the PIO is basing the response on guess work by stating that the pension ‘may have been stopped’ rather than providing factual information as per the records of the department. Also, 10 months before filing the RTI, Devi had opened a bank account in Syndicate Bank.” She had also submitted a copy of the passbook of her post office account through which she had been receiving pension earlier and a copy of the passbook of her bank account.

Following the ambiguous response to her RTI application, Devi filed the first appeal with the central information commission (CIC) on July 19, 2013. According to the RTI rules, the first appeal should be disposed of within 30 days. Devi, however, did not receive an order within the stipulated time. She then filed the second appeal on August 27, 2013. The hearing of the second appeal was held on August 11, 2014, a year after it was filed.

In the meantime, through the order of the first appeal, dated September 30, the appellate authority directed the PIO to provide complete information within 10 days. However, till date she has not received any information.

The department of women and child welfare had, in Devi’s case, violated section 4 of the RTI Act by not proactively displaying the list of beneficiaries in the office and not informing her about the reasons for its administrative decision to stop her pension. The commission, during the hearing of the second appeal in August 2014, viewed this as a serious lapse on the part of the PIO.

It said that a poor, uneducated and old pensioner should not be expected to get updates about the shifting of accounts through newspapers or by accessing internet. The commission said that not providing her the information in response to the RTI application was a serious dereliction of duty on the part of the public authority and thus a violation of her right to information. The commission directed the respondent authority to inform the appellant within 15 days from the date of receipt of the order, as to when they would pay all the dues of her pension, which would be '43,500 (pension of 29 months) or whatever amount is due from the date of last payment, along with simple rate of interest.

The commission also asked the department to compensate Devi by paying '5,000 to her for stopping her old-age pension. The commission further observed that such RTI requests was a case of “life and liberty” and the respondent authority should have responded to this within 48 hours and that the stand taken by the authority for stopping her pension for not having a bank account was unreasonable and unacceptable.

Not so proactive at disclosing

The headless and non-functional information commissions, huge pendency of appeals and complaints at the centre and in states, and non-compliance of commission’s order. These are some of the obstacles the RTI Act, which will complete 10 years in October 2015, is currently battling with. And what has been most notably defied by public authorities is the proactive disclosure that is mandatory under Section 4 of the Act. It has been over nine years since RTI has been implemented but the government departments are still hell-bent on official secrecy.

A recent study by RTI Assessment and Advocacy Group (RaaG) and Samya-Centre for Equity Studies, in collaboration with National Campaign for People’s Right to Information (NCPRI), highlights an alarming picture of various facets of the RTI Act. The section on pro-active disclosures is particularly distressing, it says.

Perhaps, that is the reason that the information which should have been in public domain for making it easier for many like Devi as a matter of right, is being fought for and delivered grudgingly, as a favour.

The report says nearly 70 percent of the applications seek information that should have been proactively made public without citizens having to file an application. And 49 percent applications sought information which should have been disclosed under section 4 of the RTI Act or other similar sections in other laws.

So how difficult is it for the government to disclose the information through various platforms? Even if the government had the will, it would be almost impossible under the current circumstances, says Shailesh Gandhi, a former information commissioner at CIC and an RTI activist. “There is lack of will, I am not denying that. But they do not even have the administrative structure for that,” explains Gandhi who admits CIC is equally at fault for not playing its role in ensuring transparency. He says even the CIC did not have a record of the number of RTI applications it received or the number of orders it passed.

Gandhi says most people in power do not like transparency. Consequently, different mechanisms have been built to thwart RTI. “For instance, in Maharashtra state departments, responses (to RTI applications) are poorer than what they used to be even when PIOs are aware that a former information commissioner [Gandhi] is asking for it.” He adds there has been stagnation in the growth curve of the RTI act.

“Under the CrPC (criminal procedure code), a law, 436 A, was passed in 2006, which says undertrials in prison who cannot afford their bail can be released on a personal bond if they have served half of their punishment. But it was not being implemented. I asked for the information from the state government through an RTI. Later, the government put the information on the Maharashtra prison website. But all the information was in zeroes. When I enquired, I found that it is mainly because the prisoners’ records are not maintained.” He added that digitisation of records can certainly help in automatic disclosures.

The study also highlighted that state information commissions (SICs) are imposing penalties in less than 4% of the cases. While the total number of pendency of RTI cases is about two lakh appeals and complaints, only in less than 0.5% (214) cases penalty has been imposed for delay in providing information. This then becomes the prime reason for the law not being taken seriously. The highest number of penalties has been imposed in Maharashtra, Karnataka and AP.

The study also highlights that the RTI Act was largely used as a last resort to get the otherwise unresponsive government to act on their complaints. Shekhar Singh, one of the architects of the RTI Act, says, “If information commissioners start imposing penalties there will be a tremendous pressure on PIOs and this would also bring down the number of appeals.”

Gandhi concurs. “In the beginning, there was a certain fear of the CIC and its commissioners, of penalty and others, among the PIOs but it is lower now. By and large commissioners have not been fulfilling their roles.”

Gandhi points out at some danger signals which, if not taken care of, will harm the existence of the Act. “Six commissioners in 2011 at the CIC had a higher disposal rate than the seven at present.” With a backlog of over a year, Gandhi says if the trend continues it will soon turn into a judicial system, which an average citizen would be afraid to approach.

“When I was at the CIC, a resolution was passed that a minimum 3,200 cases have to be disposed of in a year. But not even a single commissioner is doing that. I did it but I was always criticised for not giving good decisions and many said that I do it because I am not a bureaucrat. Today, the chief information commissioner of Maharashtra, who is a former chief secretary of the state, is disposing 600-700 cases per month, which is over 7,000 cases a year. It is certainly an achievable task even for a bureaucrat as well,” he says.

Headless commissions

Headless commissions at the centre and across many states are also a matter of great concern as it weakens the system. Anjali Bhardwaj, an RTI activist and a member of NCPRI, says, “while the chief information commissioner at the CIC is responsible for the overall management of the commission, the vacancy is causing further backlog.”

She says one of the reasons for the delay in appointment of the chief information commissioner is that there is no recognised leader of
opposition, who is an essential member of the selection committee. The committee consists of prime minister, leader of opposition and a union cabinet minister. But in case the LoP is not recognised, the law allows authorising the leader of the single largest opposition party in parliament, she adds.

Devi’s fight continues


It has been about three years of struggle and continuous running from pillar to post but Devi is still unable to get her dues. There has been no compliance of the CIC order dated September 26, 2014, so far. She has filed a complaint against the non-compliance of the CIC order. Even though she is hopeful about things working in her favour one day, she is not sure how long her winter will be.
 

Rajwati’s story sums up a decade of RTI: some relief and then non-compliance

Rajwati, living in the Lal Gumbad camp, is an Antyodaya Anna Yojana (AAY) card holder. She is entitled to ration, including 25kg wheat at '2 per kg, 10 kg rice at '3 per kg and 6 kg sugar at '13.50 per kg every month. But in February 2012 Rajwati and eight others in the camp stopped getting ration. The government records, after a computerisation exercise, showed their cards were invalid. An RTI application was filed on behalf of the nine AAY card holders in March 2012 seeking information about the status of their ration cards on which they had stopped receiving their monthly foodgrain entitlement.

Rajwati, a housewife, says it was difficult to run the house as her husband, a daily wager, earns only about '5,000 a month. She has three daughters and a son. “It was a difficult time. We asked our relatives to help us. For many days, my children went to bed on empty stomachs.”

In April 2012, the PIO said the ration card numbers mentioned in the RTI application were incorrect and that the cards were invalid whereas only the digit ‘0’ was missing from the beginning of each number. Later, it was found that the table, in the government records, had been made in Excel and the programme automatically removes ‘0’ if it is entered as the first digit of a number. Even on the department website zero was missing from the beginning of each ration card number.

After filing two appeals, in Februrary 2013 the CIC gave its order directing the PIO to rectify the error in the computers and ensure that the cards became active within 20 days. After the CIC order, Rajwati and others started receiving their rations.

The CIC also directed the PIO to compensate all the card holders with an amount of '1,500 per month for 12 months (starting from March 2012 to February 2013) for the loss suffered by them due to the wrong replies given under RTI. They are, however, yet to receive it. The department, meanwhile, filed a writ petition in the high court, seeking to get the CIC order quashed.

jasleen@governancenow.com

The story appeared in January 1-15, 2015, issue

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