The decline of India’s right to information regime, in four charts

From almost always having a head to being headless. From five-year terms for key staff to three-year terms. From rules that didn’t leave room for interpretation to an overriding provision for the government. From hardly ever rejecting applications on the grounds of documentation to doing so in large numbers. That’s the arc the Central Information Commission (CIC), one of the key cogs in the implementation of the Right to Information (RTI) Act, has travelled in the last few years.

On 21 October, a plea was filed in the Supreme Court to urgently hear a public interest litigation on the government dragging its feet in appointing a CIC head and filling other vacancies. About a week later, news broke that the government had promoted an existing member, Yashvardhan Kumar Sinha, to head the CIC and filled one of the five vacancies. The government notification is awaited, but the new appointee, journalist Uday Mahurkar, has confirmed his appointment on Twitter. The appointments have attracted controversy after the dissent note of Adhir Ranjan Chowdhury, the Opposition member in the high-powered selection committee, came to light. Among other things, Chowdhury questioned the choice of Mahurkar, “an open supporter of the ruling party”, whose name was not there in the original list of applicants.

The controversy over the appointments mark a new low for the RTI appeals body. But the decline of the institution has been underway for long. The problems start at the very top. In the first nine years since it was formed in 2005, the CIC was headless for all of 10 days. Since 2014, it has gone headless for 464 days. In each top appointment since, there has been a break, with the longest being in 2014 and 2015.

Under the nine years of UPA, there were five CICs, and they averaged a tenure of 623 days. Under NDA, there have been five CICs, with an average tenure of 374 days. Under the original rules, the CIC had a fixed tenure of five years (including their time one level below) or till they turned 65, whichever came earlier.

This changed in October 2019, when the government reduced the fixed tenure from five years to three. In addition, the government also withdrew the parity in compensation with the Chief Election Commissioner and gave itself powers to relax rules for CIC staff. Activists say these changes eroded the CIC’s authority and autonomy.

Under the current rules, the CIC can have one chief and 10 information commissioners (ICs). If the news of the latest appointments is correct, then there will be five ICs, still leaving a vacancy of 50%. The plea in the Supreme Court cites similar issues of vacancies and selections even at the state information commissions.

Rising case pendency at the commission suggests that the appeals body is in urgent need of more commissioners. The CIC takes up two kinds of cases. The first is appeals on the information shared under the RTI Act by various government entities. The second is complaints relating to the inability to file an RTI or refusal to give information. In October 2017, the CIC had 24,287 appeals and complaints pending before it. In October 2020, this figure had increased by 52% to 36,894.

Between 2015-16 and 2018-19, the CIC cleared an average of 26,681 cases a year. In other words, it is currently carrying a pendency of 15-18 months.

When the last head Bimal Julka demitted office on 26 August, the work allocation at CIC was revised. Of the 93 government ministries and institutions, 24 were assigned to Sinha. This included key ones like the prime minister’s office and the ministry of home affairs. Of the five ICs currently in position, Sinha has the highest caseload of 9,393 cases.

The caseload of CIC has been increasing despite it returning a growing number of appeals since 2015. It can do so under Rule 9 of the RTI Rules, 2012, citing “deficiencies” in documentation. Previously, the practice at CIC was to register appeals and ask the applicant to make good any deficiency before the hearing.

Thus, in 2013, the CIC did not invoke Rule 9 even a single time. In 2014, it invoked this rule on 39 occasions. In 2015, this shot up to 15,355 cases. It has stayed in five digits since. In other words, for every two cases the CIC registers, it is rejecting one appeal on the grounds of inadequate documentation.

RTI activists say such returns discourage applicants. After all, India’s RTI Act was enacted in 2005 to facilitate flow of information to ordinary citizens, who are unfamiliar with bureaucratic jargon and have no other means to demand accountability from officials.

Data on the CIC dashboard shows that of the 28,350 cases that were returned by the CIC between June 2018 and October 2020 for deficiencies in documentation, about 77% were not refiled. For an institution meant to democratize information, this should be a cause for deep concern.

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