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India RTI Act – The right to reject, deny, obfuscate

Activists at a candlelight walk in Vijayawada in 2015 to condemn the killing of whistleblowers.   | Photo Credit: CH. VIJAYA BHASKAR

 

We might have the best information access laws in the world, but our RTI users are mostly stonewalled and sometimes killed

A month had passed since Prime Minister Narendra Modi’s demonetisation announcement, but Venkatesh Nayak, a Right to Information (RTI) campaigner, was appalled to see people still queuing up outside banks, some as early as 4 a.m. By then, news of people dying from sheer exhaustion had started streaming in. Nayak wanted to know just how the decision, which put citizens through so much mystifying hardship, was taken behind the secretive walls of government.

So he did what he knew best: he filed a series of RTIs—requesting the cabinet note on demonetisation; the minutes of the RBI’s board meetings; records of all communication with the government; and copies of representations received from persons or organisations while the decision was being deliberated. He even questioned how cabinet ministers had deposited their ‘cash in hand’ and where they had queued up. A bit cheeky, yes. But these questions were on the minds of many citizens too.

Unsurprisingly, nearly every RTI application Nayak filed was rejected by different arms of the government. The RBI, in particular, turned stonewalling into an art form, citing everything from ‘threat to life’ to ‘national security’, to deny information to dozens of applicants. The central bank even created an in-house ‘disclosure policy’, unilaterally creating a list of items that it would not disclose information about, in complete contravention of the RTI Act.

In such cases, the Information Commission is supposed to step in. But although Shailesh Gandhi, a former Central Information Commissioner himself, sent a complaint to the Central Information Commission (CIC), it was returned with a note saying there was no RTI application attached.

The ‘other’ box

“But how can a complaint be in the form of an RTI application?” Gandhi asks. “Right from the top, there is a culture of non-transparency,” he says.

HALL OF SHAME
  • Since the RTI Act came into force in 2005, hundreds of public-spirited citizens have been attacked to prevent the information they sought from becoming public. Not everybody who is attacked, harassed or threatened is a seasoned activist. Sometimes, just one RTI application from a concerned citizen can lead to harassment or life-threatening assault. International NGO Commonwealth Human Rights Initiative recently curated a ‘Hall of Shame’ documenting these attacks on RTI activists, and the figures are staggering: since 2007, 65 RTI activists have allegedly been killed, 157 attacked and 168 threatened.
  • In the last one year alone, seven activists were allegedly killed:
  • P. Veerabhadraiah, 46, February 2017 in Nellore, Andhra Pradesh – The RTI convener was found dead between two railway tracks.
  • Suhas Haldankar, April 2017 in Pune, Maharashtra – The activist, who exposed civic lapses, was killed by concrete blocks hurled at him
  • Ali Hasan, 38, December 2016 in Sonipat, Haryana – The activist, who sought information on work done by the village sarpanch, was beaten to death
  • Javantraj Parasmal, 59, June 2016 in Chennai, Tamil Nadu – The activist, who had tracked corruption in the city corporation, was hacked to death
  • Srinath, 36, December 2016 in Mysuru, Karnataka – The activist had uncovered information about the illegal allotment of land and was found stabbed to death
  • Bhupendra Vira, 61, October 2016 in Mumbai, Maharashtra – The RTI activist, who was probing illegal constructions by a corporator, was shot dead at home
  • Mohan Waghmare, 48, February 2017 in Yavatmal , Maharashtra – The eye witness to the murder of RTI activist Digambar Pajgade was found murdered in his house

And that culture shows in the statistics. According to CIC’s annual report released last month, of all the cases in which an RTI application was rejected, nearly 40% didn’t even cite a relevant section of the RTI Act under which the information was denied. These denials are all categorised under a nebulous field called ‘other’. The Prime Minister’s Office walone rejected over 2,200 RTIs in this fashion in 2015-16. Perhaps some of those applications were indeed frivolous. But there were several cases where the information sought was just uncomfortable—touching, for instance, on topics such as demonetisation.

It is staggering that we still know next to nothing about the process that led to a decision that affected every citizen in this country. And especially so because we live in a democracy with one of the best information access laws in the world. It is an unfortunate testament to the limits of the RTI Act, which turns 12 this year. “Unfortunately, we are going back to an era of disclosure on a need-to-know basis, not a right-to-know basis. This is what the RTI Act was supposed to change,” says Nayak.

Meant to usher in an era of greater transparency, the RTI Act was supposed to make the process of truth-seeking easier, and thus lead to more informed public debate. Indians file nearly 60 lakh (or six million) RTIs every year, the highest number of such information requests in the world. Compare this to the 3.5 million Freedom of Information requests filed each year in the U.S., a country where the law has been in force for over 50 years. Anyone in India can file an RTI by simply logging on to rtionline.gov.in.

Mallikarjun Bhaikatti was assaulted by Shiv Sena workers after he exposed an illegal construction case in Latur in 2015   | Photo Credit: PTI

‘Headache-wala law’

This quirky law has been at the centre of much that has happened in the country over the past decade and has almost single-handedly catapulted high-level corruption to the heart of public discourse and imagination.

It has also often served as a barometer of the nation’s mood, with citizens resorting to sarcastic queries. A few months after Modi took office, an RTI applicant wanted to know if the promised achhe din had indeed arrived. Other petitions have asked: Has the Prime Minister read the Constitution? Was there a certificate course on patriotism available somewhere? And, as a mark of protest after multiple RTI requests were denied, a recent one asked if the government was prepared for a zombie invasion.

But the official machinery has learned to fight back. “RTI is seen as just another headache-wala law,” Nayak says. Since people protest each time an attempt is made to formally amend it, the bureaucracy has begun to adopt strategies to stall, stonewall, delay and obfuscate, he says.

And, as an RTI user, I have experienced every single one of these tactics myself. When Modi made a series of foreign trips early in his term, I, like many others, had asked for details about expenses. The PMO’s response? Write individually to embassies in 11 foreign countries. Later, in the middle of the marketing blitz unleashed at the launch of the Swachh Bharat Mission, when several Ministers and party leaders swept Delhi’s streets for the cameras, I asked how many brooms the government had bought for the purpose. The petition was not even acknowledged for three months. As an RTI user, you quickly learn that it can be a game of cat and mouse.

One of the toughest RTI battles I have foughtwas in trying to access the income tax returns of the erstwhile Tamil Nadu Chief Minister Jayalalithaa after she was convicted by a trial court in the disproportionate assets case.

A person’s tax returns are private and kept out of the ambit of disclosure under the RTI Act—unless, that is, an applicant can show overwhelming public interest that mandates such disclosure. I set out to prove just that, since a sitting Chief Minister had been convicted by a court for corruption.

Within days of the income tax department writing to Jayalalithaa and her aide, Sasikala, seeking their opinion (since it is private information), an auditor showed up at the IT department’s office asking for my address and phone number in order to have a “friendly conversation”. An honest and upright tax officer refused to divulge the details. My information request was, of course, eventually rejected.

Friends of Ram Kumar Thakur, who was killed in 2013 for investigating the diversion of MGNREGA funds, gather in protest   | Photo Credit: MEETA AHLAWAT

Murdered for asking

Apart from official denials, my biggest worry was my mother, an employee of the Tamil Nadu government. Her constant nightmare was that one of my RTIs would land up on her desk.

But I am among the lucky ones. Other RTI users have had to face far worse. Over 50 RTI activists have been murdered in the last decade, according to an analysis by the National Campaign for Peoples’ Right to Information (NCPRI).

They have been shot down; their houses have been demolished; they’ve been ostracised; and mowed down by vehicles. The figures are staggering: since 2007, 65 RTI activists have allegedly been killed, 157 attacked and 168 threatened.

Just early this month, a Pune-based RTI activist, Suhas Haldankar, was stoned to death with concrete blocks by a gang of over 10 people. Haldankar’s crime was exposing corruption and inefficiency in municipal civic services, for which a former corporator decided to exact revenge after losing his ward seat in the municipal election, according to media and police reports.

But despite the steady toll on the edifice of India’s experiment with transparency, no one has come to the defence of those like Haldankar—least of all the government and information commissions. Many more have been assaulted or threatened for the simple act of seeking information from their government. No one has come to their defence either.

There is also another vicious factor at play: the assumption that RTI users are ‘frivolous’ and ‘time-wasters’. “That is why there is no public outrage. People feel it is legitimate to kill and attack these people. These are after all just blackmailers,” Gandhi says.

This atmosphere of hostility and intimidation has impacted how RTI is leveraged. For instance, only around 54,000 cases of corruption were recorded in the entire country from 2000 to 2015 and a mere 19% of those cases ended in conviction, according to a study by the Commonwealth Human Rights Initiative (CHRI).

New rules, old tricks

In fact, the controversial new RTI rules of 2017, which were put out for public comment recently, state that appeals filed before an information commission (an RTI appeal is filed before a commission if a government department denies the original request) would become void with the death of an applicant, a provision that many activists have termed as a “death sentence” to those seeking controversial information.

The surest way to muzzle transparency would be to eliminate an information seeker whose appeal is pending, since that would ensure the information never gets released. Such a rule would violate the CIC’s own 2011 resolution, which states that if a complaint regarding assault or murder of an information seeker is received, the CIC could examine the pending RTI application and order the concerned department to “publish the requested information suo motu on their website.” The proposed new rules also include other onerous provisions like a 500-word limit on each RTI application (first proposed by the UPA government).

“It will be a regressive step if these new rules are pushed through,” says Anjali Bhardwaj, co-convenor of NCPRI. “For example, there is a new requirement to authenticate and verify accompanying documents [at a time when self-attestation is becoming the norm]. This will only make the process of using RTI more cumbersome and difficult, especially for the poor and marginalised who constitute the vast majority of users. Some of these new rules would only aggravate existing problems instead of solving them,” she says.

That has been the case with almost every single intervention made by governments in the realm of RTI over the years, with the constant threat of weakening existing provisions or making the process extra difficult.

“Everybody in power dislikes RTI,” says Gandhi. The only defence against a recalcitrant state apparatus, within the scheme of India’s information transparency regime, is the information commission. But many of the State-level commissions and the one at the Centre are saddled with pendency worth several years, are under-staffed, denied adequate resources and often loaded with former bureaucrats who have spent a lifetime guarding the very information they are now supposed to weigh in on about releasing.

“Commissions have been largely responsible for the decline in the effectiveness of RTI,” says Gandhi. “A lot of citizens are finding that if the public information officer in a government department is not providing answers, they have no recourse.”

Venkatesh Nayak’s team at CHRI recently studied 7,000 decisions the CIC issued over the April-June quarter of fiscal 2015-16. In nearly 40% of the cases, the commission merely issued a one-line order that stated: ‘no further intervention required’. “That means people who have sometimes waited for up to three years to reach that stage (after filing an appeal) get no answers,” Nayak says.

Besides, surveys by the Research, Assessment and Analysis group (RaaG) show that close to 70% of the information sought by people through RTI is information that should have already been in the public domain under the proactive disclosure clauses of the Act.

Therefore I am

But people still keep trying; they still keep asking questions. Because, as Amrita Johri of NCPRI points out, this is still the only law that gives us a sense of justice. “You at least get a response from the government,” she says. “An acknowledgement that you exist. That you have a grievance.”

“This is one of the few things that might save our democracy from slipping into something completely unaccountable,” says Nayak. “People should ask questions. People should demand access to information. Unfortunately, today, asking questions has become problematic.”

But that wasn’t always the case. The Indian independence movement, for instance, gained its early impetus in the late 1890s due to an economic history of the country written by a former civil servant Romesh Chunder Dutt, who pored over government records, asked questions about where India’s money went, and persistently followed the trail no matter where it led. We have a tradition of asking questions, a tradition so deep-rooted that Ministers and Prime Ministers have to at the very least pay lip service to the RTI Act.

“After all, what is government all about?” asks Nayak. “It is an administration that is run in association with and as a response to people’s aspirations.”

And those aspirations find a voice not just when one votes, but also every time a set of questions get written down and sent to those who govern us. As a country, we have again begun to ask questions—regularly, relentlessly, and often against great odds. The answers can’t be hidden for too long.

The writer is a data journalist currently associated with the Indian Institute for Human Settlements as an Urban Fellow.

http://www.thehindu.com/society/the-right-to-reject-deny-obfuscate/article18302448.ece

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Comment (1)

  1. K SHESHU BABU

    The rights activists are being harassed and even killed. RTI activists should be protected from being attacked

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