State Actions Undermine Right to Information in India

6 February 2012

Some Indian states are making it harder for applicants to use the Right to Information law, according to a series of recent news reports.

To the distress of RTI activists, states are:

–           imposing higher fees,

–           requiring statements of justification for requests,

–          asking that photographs accompany applications, and

–          making appeals administratively slower.

Higher Fees in Chhattisgarh

The Chhattisgarh Legislative Assembly has decided to charge Rs. 500 ($10) as a RTI application fee and Rs 15 ($0.30) as a photocopy charge for each page of information sought from the Assembly.

“The RTI Act clearly states that the fee charged should be reasonable to ensure that citizens are able to exercise their fundamental right. Keeping in view the spirit of the Central law, all governments and its bodies have prescribed uniform fees of Rs 10 and photocopying charge of Rs two per page,” reported Chetan Chauhan for The Hindustan Times.

The Chhattisgarh assembly would thus charge 50 times more for requests than those made to the state government.

“Increasing the fees is just one of the many innovative ways adopted by governments to bury RTI,” Chauhan wrote. “Another popular mode is not to appoint information commissioners so that an appeal of a RTI applicant is not heard and he or she gets frustrated.”

Chauhan continued:

There is not even single information commissioner in Andhra Pradesh since November 2011, Jharkhand and Rajasthan have one information commissioner and there are a couple of them in several states. The Central Information Commission (CIC) is slightly better with six information commissioners including the Chief Information Commissioner. As per rules, each information commission can have up to 10 members.

As a result, an average time taken to hear a RTI appeal range from 14 months to two years. By the time, the information commission decides the information sought losses its relevance. Many government departments are now deliberately denying information on flimsy grounds knowing well that it will take years for the information commission to decide an appeal.

Another report said the Assembly “will now consider an applicant’s intent before giving information under RTI.”

Prakhar Jain for Tehelka.com wrote, “This clearly goes against the RTI Act, which says that an applicant requesting information shall not be required to give any reason. But can intent be ascertained.

“The underprivileged will have to sacrifice a lot of money to file an RTI application. It goes against the spirit of the law,” says Shekhar Singh, a member of the National Campaign for People’s Right to Information (NCPRI), the NGO that was instrumental in bringing the RTI Act, reported Jain. “Veteran RTI activist Subhash Chandra Agrawal adds that this model would encourage other states to follow suit.”

The paper  recounted that Central Information Commissioner Shailesh Gandhi said, “Bad practices get easily copied and this is disappointing,” he says. “The intent clause is disrespectful of the law. The RTI Act talks of a reasonable fee and Rs 500 is not reasonable. These (legislative) bodies just don’t want to give information.”

The article also said:

This is not the first time that such a regressive step has been initiated by the Chhattisgarh government. In 2009, it limited the word count to just 150 and number of subjects to one for each RTI application. The restriction was also adopted by the Madhya Pradesh Assembly in 2010. “Restricting the subject to one is illegal under the RTI Act as it clearly provides for even partial transfer of application to other authorities if all the information is not available with one department,” says NCPRI’S Nikhil Dey.

Similarly, Prateek Pandey, an RTI activist of the Chhattisgarh Citizen Initiative, says there is lack of clarity. “Once I asked the former State Information Commissioner (SIC) to define ‘subject’ and he just smiled. If the SIC can’t answer that, how will a Public Information Officer? Everyone interprets it in his own way,” he says.

The SIC recently ruled against the “Speaker’s privilege” to deny information in the case of an applicant seeking audit reports of the accounts of the House and the applications received by it. Many MLAs have also been in the line of fire due to information obtained under RTI last year, which revealed that they had been receiving gifts such as microwave ovens, washing machines, etc., in violation of rules.

The way ahead is either to accept the decision meekly or wait for someone to fight it out in court saying that the notification is unreasonable and unlawful. Shekhar Singh says that this confrontation can be avoided. He gives the example of Manipur, where the government had introduced a similar rule and when the activists wrote to them, the state authorities reduced the application fee.

Rajasthan Regulations Challenged

In a related development, the Central Information Commission (CIC) in New Delhi has asked the Rajasthan High Court to revisit a requirement that the applicant must attach a self-attested photograph to the application and has to make several declarations in his plea, including a statement that the “motive for obtaining such information is proper and legal.”

The commission’s order came in response to an appeal by a Mumbai-based RTI activist, Sunil Ahya. Chief Information Commissioner Satyananda Mishra noted that these rules are “not in conformity with the provisions of the Right to Information (RTI) Act, 2005,” according to an article in The Indian Express.

The paper also reported:

Further, the rules of the Rajasthan HC in Section 5 (1) hold that “if the requested information does not fall within the jurisdiction of the authorised person, it shall be conveyed to the applicant in Form C as early as practicable.” The original rules, however, stipulate that if the information is not available with public information officer, he should transfer the application to the relevant public authority.

Goregaon resident Ahya approached the commission after he was denied information regarding the reasons for framing these rules. The panel noted, “Section 28 of the RTI Act vests the power to make rules in the competent authority in order to carry out the provisions of the Act; it does not give any power to the competent authority to frame rules to restrict the rights conferred by the Act.”

Longer Waits in Karnataka

In the state of Karnataka it will take an applicant a minimum of 75 days or more to elicit information from any department because of a recent procedural change.

The state is relying on a Supreme Court decision of Dec. 12, 2011, that an applicant who is denied information even after 30 days should first approach the First Appellate Authority (FAA) in the department concerned and file a complaint there before appealing to the Karnataka Information Commission (KIC).

“Armed with the order, the Karnataka government came out with a new arrangement, which provides an extra 45 days of grace period to the PIO [public information officer]. Any person who is denied information by the PIO within 30 days will be required to file a complaint with the FAA and wait for 45 days more,” according to The Deccan Herald.

The RTI Act, 2005, says that a PIO “on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within 30 days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9.”

The paper also reported that there is a backlog of 12,000 cases at the KIC.

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