By Shonali Ghosal
Ghosal is a correspondent with Tehelka magazine, based in New Delhi, which published this article in its Dec. 24 edition. Following is an interview with Shailesh Gandhi, a Central Information Commissioner. (Reprinted with permission.)
The mere suggestion of any amendment to the Right to Information (RTI) Act, 2005, sends civil society into a tizzy. Perhaps this level of anxiety is necessary to protect the common man’s most important tool to hold the government accountable. But what if the RTI is dying, not because of government intervention but negligence?
The pendency of complaints and appeals in several states is on the rise, while the number of information commissioners in individual states is dropping. Andhra Pradesh, for example, had four in November 2010 against a maximum sanctioned strength of 11 but now has just a Chief Information Commissioner. This is despite several letters being dispatched by the commission to the state asking for immediate appointments. The total number of pending complaints and appeals, which was around 4,000 at the end of 2010, doubled to 8,296 on 31 October.
“The workload is too much for one person. We need at least five commissioners,” says CIC Jannat Hussain. But there’s still hope for RTI in the state with the Andhra Pradesh High Court recently ordering the state government to appoint commissioners within four weeks (the onus is on the state government to appoint State Information Commissioners).
Each state is allowed a maximum of 11 information commissioners including the chief, irrespective of factors like the number of complaints they receive. This in turn leads to higher pendency of cases in some, which threaten the very core of the RTI: the guarantee to receive information in 30 days. “They should not become like regular courts. Courts have failed because of pendency,” says VV Rao, convener of Social Audit Council on Information Right.
Workloads Rising
In Gujarat, where there were three commissioners till July, only one is left. Its website shows a total pendency of 7,668 cases until May. When TEHELKA asked for the latest figures, the commission refused, suggesting filing of an RTI. Ironically, the Tamil Nadu Information Commission, when contacted, also asked for an RTI application to give the information, which is readily available with most commissions. So much for proactive disclosure.
Rajasthan is worse off, with no chief since mid-April, when the last incumbent retired. It was only on 5 September that the sole Information Commissioner, T Srinivasan, was made the chief. “As per rules, there can be no hearing unless there is an SCIC,” says RP John, private secretary at the commission. For the four months that the commission came to a halt, they could only collect complaints. No disposals could be made, despite there being one information commissioner. “Because of that, our pendency is more than 8,200 but that’s obvious when the inflow outweighs the outflow,” says secretary JK Sachdeva.
Pendency is a problem even in states such as Maharashtra, which has five information commissioners (nine until earlier this year). But the volume of complaints and appeals is so large that the backlog, which was 15,812 in August 2010, shot up to 19,691 by June. But it’s not just the state government at fault, points out Punebased RTI activist Vihar Durve. “If Central Information Commissioner Shailesh Gandhi can dispose of 500 appeals a month, why are others disposing of just 150-200?” he asks.
The question is, how does one determine how many cases each information commissioner should be tackling? Jharkhand, which had a pendency of just 372 last year has now run up a total of 1,257 pending cases this year.
True, the Jharkhand Information Commission has just one commissioner at the moment but how does one know if he’s doing enough? What’s a good number? “A minimum of 5,000 per commissioner, per year,” says Gandhi.
Even at the Centre, there has been a threefold increase in pending cases from 6,820 as on 1 April 2008 to over 20,000 today despite Central Chief Information Commissioner Satyananda Mishra having written letters to the prime minister’s office asking for the vacancies to be filled up. “This (pendency) is only the backdoor way of killing the RTI. To frustrate the appellants and complainants till they give up,” says Hyderabad-based RTI activist CJ Karira. Of course, it may not be by design but by accident that RTI is choking to death.
Q&A with Shailesh Gandhi, Central Information Commissioner
“This slow poison will eventually destroy RTI”
CIC Shailesh Gandhi, who took over in 2008, tells Shonali Ghosal that the system can be fixed only if information commissioners take on more workload.
Excerpts From An Interview
Is the shortage of information commissioners responsible for killing RTI?
That’s not the only thing responsible. The bigger issue is that commissioners need to first establish accountability and dispose of far more cases than they have been. Three years ago, they were disposing of not more than 2,000-2,500 cases in a year. Even now, there are lots who do not manage even 1,000 per year. If we continue like this, then no number of commissioners will work.
What’s an optimum figure?
At the Central Commission, I’ve been disposing of over 5,000 cases per year. In the past three years, I’ve done over 16,000 cases. So it is possible to do that. There’s nothing unique about what I’m doing. If you look at the Central Commission until August 2008, five commissioners (working 30 months) have tackled 16,357 cases. If you go by that, then no number of commissioners will suffice, more so when the Central Commission is likely to get over 30,000 cases this year.
What is that figure based on? Do commissions forecast the expected number of cases a year?
No, that is my personal estimate. Commissions do not, as part of any policy, figure out how much work they are expecting, which is a huge drawback.
Isn’t an information commissioner accountable in terms of how many cases he/she disposes of in comparison to others?
Absolutely not. That’s exactly the point. A commissioner individually costs the nation, with even minimum paraphernalia, Rs 50-60 lakh a year. If you take my salary, my car, my driver and my house, all that costs the nation around Rs 30 lakh a year. That’s direct cost of Shailesh Gandhi with nothing else. But there are staff attendants and other facilities provided so including that, Rs 50-60 lakh is the minimum cost to the nation.
When commissioners cite reasons like misuse of RTI or that they get more applications because of the state’s high literacy rates, is that valid?
Basic lack of accountability, that’s the reason. Incidentally, this is not true of just the information commission but of all commissions in India. I’m not attacking the information commissions. I just feel that we all need to think carefully and realise that all our commissions together are our checks and balances of democracy. If they don’t function, the country has a serious problem.
Is it fair that the Centre fixes 11 commissioners despite the varying number of cases each state gets?
What should happen is the smaller states should not have so many. If a state commission doesn’t get more than 4,000-5,000 cases a year, even one commissioner should do.
Is there any particular state with a real imbalance?
Arunachal Pradesh is a bit of a joke. A survey said that Arunachal is the best commission in India. If a commission that disposes of 100 cases with six information commissioners is a great commission, the criteria is flawed. With what lens are we looking? If that’s how citizens and activists are going to look at things, it’s very sad.
What if there is a genuine shortage of commissioners?
If there are any shortcomings or problems because of which commissions are not able to deliver, make the information public, state your problems and ask for suggestions.
How do we rectify the situation? Can a norm apply to the commission?
Why not? When people say that for quasi-judicial bodies or judicial bodies, you can’t set norms, it is a flawed argument because in the RTI Act itself, we have a norm for first appellate authority that he must respond to an RTI application within 30 days. If he has a norm, why not the commission?
But Public Information Officers (PIOs) say that they have primary functions, which they are pulled away from because they are bound to reply in 30 days.
Absolutely. In fact, the commissioners have no other function while the first appellate authorities and PIOs do. And yet the commissioners say that we won’t be accountable and will not guarantee anything. Citizens must insist and commissioners must guarantee that at least 90-95 percent of cases will be cleared in 3-4 months or some such norm. Commissions must voluntarily set their norms and if they are not willing to, then citizens should ensure that a norm is set.
Doesn’t the commissioner have to take the initiative to change this situation?
They should take ownership of his work and position. Commissioners have to take it upon themselves to perform to their full output. Who else but the commissioner? Is the prime minister expected to go and look at everything in this country?
But why do you think it’s lax?
The commission doesn’t forecast its work, which it really needs to. The primary objective should be to deliver to citizens. We should assess and forecast our expected load and say what we need. And if you don’t get that, battle it with the government. Judiciary and quasi-judicial functions have no norms, people have accepted that they function this way and there need not be any norms. It’s become an accepted norm that you can’t ask us and we’re not accountable. Once that is established, it is easy for people to fall into that mould. They need to change that.
So there’s no cost-benefit analysis?
No, no one talks about it including the media. People aren’t thinking about these things and they need to. We need to have some norms, certainly some deviations but we aren’t drawing paintings or writing poems.
Is misuse of RTI such as harassing, a reason for the rising number of cases?
The category of people who only want to harass would be about 5 percent, so no, I don’t think that’s a valid explanation.
Can I file an RTI to find out how many cases have been disposed of?
Of course. Unfortunately, people are not even doing this. Neither citizens nor the media is bothering about this. We won’t need dilutions or amendments to the Act, this slow poison will eventually destroy RTI.
Shonali Ghosal is a Correspondent with Tehelka.
shonali@tehelka.com
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