It is more than three years that the Right to Information Act ( RTI in common parlance ) was brought into existence purporting to create ‘an information dispensation regime in which information can be accessed by any citizen in an affordable and convenient manner.’ It was but natural that independent assessments would be made to assess the implementation of the RTI Act in order to identify the bottlenecks and set an agenda for corrective action. It is also obvious that such assessments are best made by institutions of some standing in order to carry any conviction with the citizen at large, and to be of some practical use in particular to ( i ) the ‘appropriate governments’ and ( ii ) the ‘State Information Commissions’. One such assessment has been recently brought out by a New Delhi-based society PRIYA ( Society for Participatory Research in Asia ), an International Centre for Learning and Promotion of Participation and Democratic Governance. This essay discusses some of its findings in so far as they relate to Uttarakhand and actions which deserve to be taken by the various stake-holders. In near future more evaluations are expected to appear as the Government of India itself has engaged international consultants and there are others who have taken on themselves to undertake similar evaluations.
PRIYA Study: Accountability in public realm
Undertaken by PRIYA under its on-going programme entitled ‘Governance Where People Matter’ supported by several international funding agencies like Cordaid, IDS, SDC and Sida, a study, entitled “Accessing Information under RTI : Citizens; Experiences in Ten States” covers ten selected districts of Bihar, Gujarat, Haryana, Jharkhand, Kerala, Madhya Pradesh, Orissa, Rajasthan, Uttar Pradesh and Uttarakhand. According to PRIYA the RTI Act, 2005 expands the meaning of ‘accountability’ in India. Accountability has been traditionally regarded as a compliance and counting, assigning performance indicators and safe-guards against corruption and inertia. Accountability, hitherto, limited to cross checking, verifications, inspections, audits etc by the government bodies has been brought into the public realm by the RTI Act. The public can make government institutions accountable by actively taking up vigilance roles at different levels. The relationship between the use of RTI Act and the strengthening of ‘public vigilance’ has been clearly established.
This might interest a vigilant and informed reader of this column to learn that during the hearing of an important appeal Uttarakhand Information Commission was informed that while there exists a legislation to ensure that all public authorities get financially audited there had been no Rules to govern the modalities of ensuring effective implementation of the audit reports by the audited public bodies. It is only in 2004 that Uttar Pradesh has notified the Rules in this regard and in Uttarakhand we became aware of even this fact only through this appeal filed ? Certainly, the Commission is now following it up with the Finance Department but the moot issue highlighted remains that the financial accountability has remained so thoroughly neglected during all these years !
The effectiveness of the Public Accounts Committees ( the PACs) of our State Assemblies is a function of the over-all effectiveness of our Legislative functioning, a subject although relevant but which this writer would hesitate to enter at this state of his employment. It is with this backdrop that the study under review has tried to find answer to a query, “Are citizens able to get information easily under the Act ? ”, or “ Is the Act being implemented effectively ?”.
A Sequel Study of 2007
PRIYA had previously undertaken a similar study in 2007 wherein, respondents were civil society organizations ( NGOs, RTI activists and media persons ) who had been working on RTI in 21 districts of eight states. In the present study the respondents are RTI users from the ten districts of ten states. While the respondents in the two studies have been different, the indicators which have been used in the two studies, are similar. The indicators of the 2007 study were:
( i ) the availability of directory of PIOs,
( ii ) the self-disclosure by Public Authorities,
(iii ) the response of PIOs to citizens,
( iv ) the rate of application and additional fees,
( v ) the mode of payment, simplicity of RTI rules,
( vi ) the response of First Appellate Authorities, and
( vii ) the response of State Information Commissions
The 2007 study had highlighted the dominance of retired IAS officers in the SICs, non availability of directory listing PIOs, poor self-disclosure by Public Authorities, non- cooperative and hostile PIOs and lackadaisical SICs as the key bottlenecks in the implementation of RTI Act. Exactly one year later through this study PRIYA tries to find out whether the bottlenecks identified one year ago have been addressed or not ?
The Findings of 2008 Study
The data on the questionnaire was collected from December 2007 to January 2008 from citizens who had used the RTI, the sample size of the study was fixed at four hundred and twenty and an effort was made to make the sample as representative as possible i.e., variety in terms of geographical regions ( rural and urban contexts ), gender, socio economic profile and education of the respondents. The data from the SICs was collected from January 2008 to July 2008. The study has been divided into three sections:
( a ) Citizens Access to Information,
( b ) Response of the Appellate Authorities ( First Appellate
Authorities and State Information Commissions ), and
(c ) Evaluation of performance of State Information Commissions.
The highlights of the findings show a mixed state of progress across the board, however, the Study is helpful in delineating an agenda for the immediate future and thus serves a positive purpose.
Citizens’ Access to Information
The study shows that a list of PIOs or a directory of PIOs at the district level was simply not available in the majority of the states, except in Haryana and Uttarakhand. It has been concluded that citizens have a difficult time in filing applications at the appropriate offices. As many as 78 % of the respondents have found the rate of application and additional fee reasonable but the mode of payment of fees in Bihar, Kerala, MP, Gujarat and Orissa was restrictive. It was found quite broad-based in Haryana, Jharkhand, Rajastahn, UP and Uttarakhand.
Karnataka, Punjab, Orissa, MP and HP have made the application procedure complex by making identification proof mandatory, limiting the application to 150 words, requiring a separate application with respect to each subject and each year etc. It has been correctly concluded that such complex procedures for filing RTI applications deter citizens from seeking information. Uttarakhand respondents, however, found both the rate of application and additional-fee quite reasonable and expressed their satisfaction with the broad-band of payment base and mode. These restrictions must be removed and the procedure ought to made RTI compliant viz., as conditions-free as is practically feasible, in short, citizen/applicant –friendly.
An important insight thrown up by this study relates to the disclosure that as many as 68% respondents said that they were able to get the information only after facing a number of difficulties in filing applications; citizens mostly approach the gram panchayat, block development office, Deputy Commissioners’ office and Zila Parishad for accessing information, and nearly 90% and more respondents in Bihar, Haryana, Jharkhand, MP, Kerala and UP said that self-disclosure manual was not available in the public authorities.
Uttarakhand PIOs would be gratified to note that 77.78 % Uttarakhandi respondents acknowledged that they received the information sought by them, and much more importantly, as many as 92.86 % of them had received the sought for information within the stipulated time limit of 30 days ! As this kind of statistics is not captured by the monthly returns prescribed by the Information Commission itself it has also come as a pleasant revelation to the Commission itself, much more so as the respondents belonged to a remote hill district of the state, Chamoli. Yet another revelation, again not captured by the prescribed monthly returns, is the fact that Uttarakhand ( 85% ) shares the top honors with Gujarat ( 72% ), where a significant percentage of respondents reported visiting the concerned department ‘only once’ for accessing information, as contrasted with say the lowest two, Kerala ( 4.4 % ) and Rajasthan ( 15.15% ). In Bihar ( 20%) and Gujarat ( 13.21 ) the respondents visited the offices more than 10 times ! All stake-holders need to immediately put in place a very effective mechanism whereby the applicant is provided all permissible information inside 30 days, with costs, and maximum 45 days, at the appellate level free, as provided by the Act.
Responses of the Appellate Authorities
The study demonstrates that a significant percentage of RTI applicants do not go in for First and Second Appeal as they feel it would not be of any help and they would be unnecessarily wasting their time and resources on the appeal process. It reveals that out of a small percentage of citizens who do file a First Appeal, as many as 70 % of the respondents were still unable to get the information. Similarly a significant percentage of citizens going in for Second Appeal were still unable to get information.
A significant finding of this study is that the percentage of citizens not going in for First Appeal in Bihar ( 19.44 %), Kerala ( 20%) and Jharkhand ( 29.42%) was significantly high, whereas those going in for First Appeal in Haryana and Uttarakhand ( both 66.67%, and not 76% as mistakenly reported in the narrative ) was significantly high. What has not been analyzed surprisingly is why is it as high as 100%, both in MP and UP ? The analysis is also silent in not connecting it with the reply returned in by the respondents in reply to a query asking, “ Did you get the Requested information after 1st Appeal ?.” The table given in Figure 1.1 at page 54 of the study actually leads us no where, as it is 100% as ‘No’, for both UP and Uttarakhand and 80% ‘Yes’ for MP.
The conclusion of the study regarding the phenomenon observed related to the filing of the 1st Appeal and response thereto is that ‘it reflects the pessimism of respondents who feel that nothing is going to change in India, so why should they waste their time and resources in running after a lost cause.’ Further, ‘As a significant percentage of respondents did not go in for First Appeal, hence, there was no question of going in for a Second Appeal i.e. to the SIC. So the respondents left the relevant column blank.’
Several issues related to the legal requirements embodied in the Act connected with the First Appeal, viz., a preference to take a perceived short-cut of exercising the ‘Complaint-route of section 18’, ambiguity of applicability of provisions contained in section 18 vis a vis section 19(1), utter indifference on the part of the public authorities/ state to put in place a satisfactory mechanism of hearing the ‘First Appeals’ by the Departmental Appeal Authorities, the practice of the First Appeal Authorities to deal with the first appeals as if these are ‘representations’ of administrative nature rather than quasi-judicial proceedings, and so on, are what could be termed as the soft-belly of the RTI Act regime. Disposal of First Appeals by the First Appeal Authorities in a manner satisfactory to both i.e. the applicant as well as the public authorities easily rates as one of the few grey-areas of the RTI Act, calls for RTI Act compliant but out-of-the-box innovations and best practices to be devised and operationalised by the State Information Commissions. Government of India ( DoPT) has also issued Guidelines for the officers designated as first appellate authority in April 2008 and stressed the need to do so ‘keeping in view the principles of natural justice’.
Not only the study omits to mention some of the contentious issues listed above but it also fails suggest what all needs to be done either by the appropriate governments or other ‘competent authorities’, including suitable amendments in the sections 18 and 19(1) of the Act itself or framing of remedial Rules, to redress the existing situation. The Information Commissions are therefore left with the options of either giving suitable directions in this regard in matters which do come up under section 19(3) before it, as a Second Appeal, or encourage institution of a large number of complaints under section 18, thus further enfeebling the lacuna which exists under the Act, in total disregard of the provision which allows a second opportunity to all public authorities for furnishing information. Three years’ experience of addressing the existing ‘grey area’ should have been adequate to short-list actionable guidelines/ amendments / notification of appropriate rules, which as it happens has not taken place.
Evaluation of Performance of State Information Commissions
The study has shown that the disposal rate of Appeals of Haryana, Rajasthan, UP and Uttarakhand SICs is between 77 to 93%, which has been rated as good. It has also been mentioned that the disposal rate of complaints by the Haryana and Uttarakhand SICs is above 90%, the highest. The study also covers other aspects like penalties imposed and disciplinary actions recommended by the SICs and which reveals a lot about SIC’s over-all performance. Those who are interested in further or fuller details are advised to visit www.pria.org or contact info@ priya.org in this regard. Some of the conclusions arrived at or areas of concern not adequately addressed by the study could have been avoided had the organization taken the trouble of following a consultative process instead of asking for information indirectly or through the use of RTI itself, as has been done in this instance. All in all, however, the study provides a useful external insight into some of the aspects related to implementation of the RTI Act easily one of the major initiatives of India in ushering in transparency and accountability in the functioning of thousands of public authorities.
Roles of the Central, State Government and the SICs
It is indeed difficult to disagree with the observation of the study that non-action on the part of the SICs in the face of large-scale denial of information in some of the states is cause of serious concern, the long wait of four to six months before the SICs for hearing is causing the citizen to feel that filing a Second appeal is a waste of time and resources and the casualness of the SICs, the apex body for ensuring compliance of RTI also raises questions about their functioning. The Study, however, also hastens to add that the blame for the poor implementation of the RTI in the states cannot be entirely laid on the SICs, as they also face tremendous budgetary, infrastructural and man-power constraints.
The central and the state governments, the study concludes, would do well to ( i ) provide for necessary resources and staff to the SICs, ( ii ) appoint Information Commissioners ( ICs) as the number of complaints and appeals are mounting exponentially, and ( iii ) stop paying just a lip-service to transparency and accountability in governance by not strengthening the RTI delivery – regime.
By all accounts, if the ever increasing number of applications, complaints and appeals under the RTI are any indicator, the bar has certainly and irreversibly been raised, in so far ( i ) as transparency demanded from all public authorities in their functioning, ( ii ) management of records, ( iii ) suo-moto declaration of the way they function and decide issues and take policy decisions, ( iv ) make appointments and payments from public exchequer, or verily ( v ) do or even not do, what is expected of them, is concerned. Notwithstanding certain grey-areas the ‘ Idea RTI’ has established itself very firmly and a citizen now feels empowered that he or she has something which can be used to assert the various rights which have been promised in the Constitution itself, through various other statutory ‘Rights’ which existed either mostly on paper or were quite difficult and time-consuming to access. The RTI, among other things, has come to be perceived as the ‘right Means to a Right promised.’
Speaking of Uttarakhand the Uttarakhand Information Commission has received very encouraging response from all possible stake-holders and it particularly feels encouraged to observe a clear shift from the earlier ‘individual-problem centered applications’ to ‘public-problem centered applications’, focused on improving the over-all efficiency, accountability and transparency in the functioning of various public authorities functioning in the state.
The UIC perceives it as its prime responsibility to ensure that whatever grey-areas do exist in the existing RTI Act are so interpreted and resolved that they are willingly complied with by both, namely the applicant-citizen and the provider-public authority. It would like to function and be known as a ‘Fair-Referee’, above every thing else.
The good news in 2009 is that the Central Government has finally taken a decision to directly assist financially both the State Information Commissions and the state Training institutions to take up steps to address various shortcomings in the field of awareness generation, sensitization, advocacy and training of staff.