Tilting the Balance of Power: Adjudicating the RTI Act

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The writing of this report has proved to be both challenging and rewarding. At the very start, the prospect of understanding, assessing and critiquing orders! of the high courts and the Supreme Court overwhelmed us, especially as none of us were trained lawyers. However, our belief that the rationale of decisions made by public institutions must be accessible and comprehensible to an average citizen, gave us the confidence to persist. The recognition of our own averageness gave us the credentials to investigate.

The first immediate task was to construct the sample and have the sample orders surveyed for content and rationale. In total, a sample of nearly two thousand information commission orders, and nearly three hundred high court orders, were surveyed by a team of researchers. We ourselves studied over thirty Supreme Court orders, including all those that adjudicated on the RTI Act, and then verified and analysed the findings of the survey done by the research team. This proved to be a larger task than we had anticipated. Apart from the sheer volume, we found some other factors inhibiting our efforts at verifying and analysing these orders. The judicial profession has, over the years, developed an exclusive language with a vocabulary that is not widely known. Of course, so have other professions, so you no longer have a heart attack but a myocardial infarction, and this is not the result of a narrowing of arteries, but of stenosis. The labels seem more challenging than the disease! There were many similar examples in judicial orders. Our favourite one was "lis", which for many weeks we thought was a mistyped "list". However, when we came across this typo once too often, we consulted a legal dictionary (our Word software continues to show it as a typo) and discovered that it meant "A law suit; an action; a controversy in court; a dioute...".2 Perhaps the time has come for public institutions and professionals to speak in a language that can be easily understood by the public.

As we started beginning to understand what various judicial orders meant, we also started realising that there was a lot of inconsistency across judicial orders, especially of the high courts. Different high courts, and sometimes even the same high court, held positions that seemed to the hapless average citizen to be contrary, if not contradictory. As the RTI Act is a national law and people residing in one state can, and do, apply for information from another state, this meant that they had to be familiar with the adjudications of each high court so as to understand what was required, and what was possible. The fact that IC orders also suffer from the same malaise, and additionally each state and each competent authority can have their own rules, threatens to make the filing of an RTI application a task that only rocket scientists can perform. It might be worth discussing, publicly and among the concerned institutions, how this problem can be tackled. The second major challenge we faced in trying to understand these various orders was the fact that many of these orders, especially those of information commissions, were cryptic and neither contained basic information about what was being adjudicated upon, nor the rationale for the decision. Often, even the provision of the law that was applicable was not mentioned. For orders of the information commissions, there was the further challenge that many state ICs gave orders only in the state language, and no translations were available either in English (which is the language of the higher courts), or in Hindi. In this report we have mostly used the terms "order" and "judgement" interchangeably. 2 Interestingly, before we finally discovered the legal meaning, we also came across another disconcerting meaning of "Lis": "laughing in Silence".

As we started forming an understanding of the body of judicial and commission orders, we found evidence in support of some common apprehensions about the RTI adjudicatory process. For example, across the board we found a hesitation in imposing legally mandatory penalties for clear and established violations of the RTI Act. This was rampant among the information commissioners, but not totally absent among the higher judiciary. We also found huge delays among information commissions, often without good reasons.

Proactive disclosure, we found, continued to be a weak area and the commissions continued to look the other way. Equally disturbing was the focus on proactive disclosure purely through the web, even when nearly three fourths of the Indian population, the one that most desperately needs access to information, has no internet connection. Of significance was our realisation that despite the RTI Act mandating that public authorities must proactively publish all relevant facts while formulating important policies or announcing the decisions which affect public, and proactively provide reasons for all administrative or quasi-judicial decisions, public authorities were not following this dictum. In fact, even when specifically asked for, information regarding why certain decisions were taken was hard to come by, made worse by an incomprehensible tendency, among many PIOs and information commissioners, to maintain that under the RTI Act you cannot ask for reasons or for an answer to the question "why?". We also confirmed that there was a fast-growing tendency among PIOs to illegally "transfer" RTI applications to other PIOs in the same public authority, thereby not only converting a single application into a dozen or more, but also starting an endless run-around. Though there are progressive judicial orders holding such a practice to be illegal, most information commissions do not seem to have taken note of this. Similarly, we discovered an increasing tendency among commissions, especially the Central Information Commission, to revert complaints and appeals to first appellate authorities and even to PIOs, totally in disregard to the letter and spirit of the RTI Act.

Perhaps the most disturbing of the various regressive tendencies observed among the adjudicators was the propensity to ignore legally mandated, and universally applicable, public-interest overrides on exemptions to the disclosure of information. Most orders (commissions and the judiciary) did not even mention this, leave alone apply it and, in some cases, it appeared as if the adjudicators were unaware of the relevant provisions of the law. Similarly, the legally mandated and universally applicable provision that information that cannot be denied to Parliament or to a legislative assembly, cannot be denied to an RTI applicant was mostly ignored and rarely mentioned. The data gathered for this study confirmed that adjudicators were by and large not insisting on the legally mandated provision of redacting exempt information from documents and records, and disclosing the remaining bits. In fact, is some orders, the presence of exempt information in a portion of the record was explicitly cited as the basis for withholding the disclosure of the entire record. There was also evidence that most adjudicators were ignoring the legal requirement for PAs to provide information free of charge, where a delay had occurred. Others were prescribing arbitrary limits to the number of pages that need be given free, in direct violation of the law. A widely prevalent lapse was the unwillingness to put, as required by law, the onus of proof and justification on the PIO, both in appeals and in complaints. This often led to adjudicatory proceedings and hearings relating to the RTI Act following the traditional path of the applicant being called upon to prove that the information being asked for was not exempt from disclosure, or that the RTI Act was violated, and without any acceptable grounds, by the PIO.

The Right to Information (RTI) Act has undoubtedly been one of the most empowering legislations for the people of this country. It has been used extensively for a range of issues: from holding local governments and functionaries accountable for lapses in the delivery of essential services and the safeguarding of basic rights and entitlements, to questioning the highest authorities of the country on their performance, their decisions, and even their conduct. The RTI Act has thereby started the process of redistributing power from the elite few to the general public, and initiated the task of converting India into a true democracy. Being one of the few legal instruments in India that empower the people to regulate the government, in contrast to most others that empower the government to regulate the people, the RTI Act has been continuously attacked and persistent efforts made to weaken it or to make its implementation increasingly ineffective. Earlier studies done by RaaG and others3 have studied in detail the various challenges faced in the proper implementation of this Act. This study focuses on some of the most critical institutions charged with the responsibility of ensuring that the RTI Act continues to promote transparency and accountability of governments at all levels, and thereby strengthen democracy. These are the independent adjudicators, essentially the information commissions, the high courts, and the Supreme Court of India. Though the functioning of information commissions has been examined in some of the earlier studies referred to above, these mainly focussed on the statistical and administrative parameters, in terms of how many complaints and appeals were received by each commission, how long did it take to dispose them off, in what proportion of the cases did the commission allow the disclosure of all or part of the information sought, and how many penalties did it impose. There was also an effort to assess the profile of information commissioners and to assess the adequacy of the budgets and the staff of commissions. Admittedly, some of this has also been done in this study, but the main focus here is to analyse the quality of the orders of the commissions and of the courts, and to understand the implication that these orders have on the transparency regime in India.

Background and genesis: This study is partly a continuation of the ongoing efforts to record and analyse the implementation of the RTI Act in India. But its timing, structure and methodology has been significantly influenced by emerging concerns about the failure of transparency regimes to effect sustained and progressive systemic changes in the process of governance, rather than just addressing complaints and grievances, relating to specific issues, that continue to recur despite increased transparency. While investigating reasons why a flourishing RTI regime in India, with more RTI -applications being filed than in any other country in the world, was not resulting in greater and more rapid systemic changes in governance, the initial focus was on public authorities and the assumption was that they were not doing what was required to learn lessons from the huge number of RTI applications that were being filed, or converting whatever lessons were being learnt into systemic changes and improvement. Though this assumption still holds good, and is being separately investigated, in the process of investigating this it became increasingly obvious that the adjudicatory bodies also had a much greater impact, than earlier recognised, in inhibiting progressive systemic changes. Hence this study.

Purpose and objectives: The overall purpose of this report, and of much of the research done for it, is to improve the quality of governance in India, especially in terms of its impact on the oppressed and marginalised sections of society. Specifically, this report looks at how to make the RTI Act more effective for improving governance, especially by bringing about systemic changes, through better adjudication. Towards that end, this report analyses orders and directions of the Supreme Court, along with recent orders of the various high courts, pertaining to the RTI Act. In addition, a sample of orders of information commissions are also analysed. Details of the sample and the sampling methodology are described in the Statement of Methodology below.

The objectives of this report, or what it hopes to achieve, are many. Foremost is the hope that the analysis and critique presented here provokes a public debate on the manner in which the RTI Act is being understood and interpreted by the adjudicators. Underlying this hope is the belief that in India there is inadequate informed public feedback to adjudicators, on interpreting and applying legal provisions critical to the upholding of fundamental public interest. Consequently, adjudicators, especially the higher judiciary, are denied access to an informed public debate. This is especially critical as the higher judiciary in India not only adjudicate on matters of law, on which they undoubtedly have great expertise, but on many other matters on which they could well benefit from the views of the public and of experts among the public. This lack of informed public debate also results in a sense of powerlessness and frustration amongst the public, as adjudicators give orders regarding matters that intimately concern them, without the basis and rationale behind the order being subjected to a public debate. Such a debate, apart from clarifying the various possible viewpoints, also helps the public to understand the various issues involved, and to understand the rationale of an order, even where they are not in agreement with it. Therefore, the first objective of this report is to facilitate such a public dialogue on issues related to the RTI Act, which mostly are of great interest and concern to the general public, and which are being adjudicated by information commissions, and in some cases by high courts and even the Supreme Court.

Undoubtedly, the judiciary and other adjudicating agencies must be objective and unbiased, and not be swayed by prevailing public opinion, however overwhelming. But surely the cause of justice would be furthered if the judiciary was privy to all sides of well-reasoned arguments that members of civil society sought to present, and to the pertinent facts they highlighted. If analysis of adjudicatory orders presented in this report are kept in mind and considered by judges of the Supreme Court and high courts while adjudicating on RTI related issues, then another major objective of this report would be fulfilled. Obviously it is not expected that all judges will agree with every point made in this report. However, if the issues raised here and raised in the larger public debate, that will hopefully be provoked by this report, are kept in mind, it would be one way of ensuring that the people of India, who in many of these matters are collectively an interested party, get their right to be heard, thereby satisfying an important principle of natural justice. Another primary objective of this report is to reach out to information commissioners to alert them on the common errors that have crept into many of their orders, and raise issues that need further detailed consideration. The findings of this report suggest that trends set by earlier commissioners often get emulated by new commissioners in the same commission. For example, the original commissioners in many of the information commissions, from the time they were set up, were hesitant to impose penalties4 and this tendency has been emulated by most, if not all, of their successors.

**Contents and Sample Pages**

The writing of this report has proved to be both challenging and rewarding. At the very start, the prospect of understanding, assessing and critiquing orders! of the high courts and the Supreme Court overwhelmed us, especially as none of us were trained lawyers. However, our belief that the rationale of decisions made by public institutions must be accessible and comprehensible to an average citizen, gave us the confidence to persist. The recognition of our own averageness gave us the credentials to investigate.

The first immediate task was to construct the sample and have the sample orders surveyed for content and rationale. In total, a sample of nearly two thousand information commission orders, and nearly three hundred high court orders, were surveyed by a team of researchers. We ourselves studied over thirty Supreme Court orders, including all those that adjudicated on the RTI Act, and then verified and analysed the findings of the survey done by the research team. This proved to be a larger task than we had anticipated. Apart from the sheer volume, we found some other factors inhibiting our efforts at verifying and analysing these orders. The judicial profession has, over the years, developed an exclusive language with a vocabulary that is not widely known. Of course, so have other professions, so you no longer have a heart attack but a myocardial infarction, and this is not the result of a narrowing of arteries, but of stenosis. The labels seem more challenging than the disease! There were many similar examples in judicial orders. Our favourite one was "lis", which for many weeks we thought was a mistyped "list". However, when we came across this typo once too often, we consulted a legal dictionary (our Word software continues to show it as a typo) and discovered that it meant "A law suit; an action; a controversy in court; a dioute...".2 Perhaps the time has come for public institutions and professionals to speak in a language that can be easily understood by the public.

As we started beginning to understand what various judicial orders meant, we also started realising that there was a lot of inconsistency across judicial orders, especially of the high courts. Different high courts, and sometimes even the same high court, held positions that seemed to the hapless average citizen to be contrary, if not contradictory. As the RTI Act is a national law and people residing in one state can, and do, apply for information from another state, this meant that they had to be familiar with the adjudications of each high court so as to understand what was required, and what was possible. The fact that IC orders also suffer from the same malaise, and additionally each state and each competent authority can have their own rules, threatens to make the filing of an RTI application a task that only rocket scientists can perform. It might be worth discussing, publicly and among the concerned institutions, how this problem can be tackled. The second major challenge we faced in trying to understand these various orders was the fact that many of these orders, especially those of information commissions, were cryptic and neither contained basic information about what was being adjudicated upon, nor the rationale for the decision. Often, even the provision of the law that was applicable was not mentioned. For orders of the information commissions, there was the further challenge that many state ICs gave orders only in the state language, and no translations were available either in English (which is the language of the higher courts), or in Hindi. In this report we have mostly used the terms "order" and "judgement" interchangeably. 2 Interestingly, before we finally discovered the legal meaning, we also came across another disconcerting meaning of "Lis": "laughing in Silence".

As we started forming an understanding of the body of judicial and commission orders, we found evidence in support of some common apprehensions about the RTI adjudicatory process. For example, across the board we found a hesitation in imposing legally mandatory penalties for clear and established violations of the RTI Act. This was rampant among the information commissioners, but not totally absent among the higher judiciary. We also found huge delays among information commissions, often without good reasons.

Proactive disclosure, we found, continued to be a weak area and the commissions continued to look the other way. Equally disturbing was the focus on proactive disclosure purely through the web, even when nearly three fourths of the Indian population, the one that most desperately needs access to information, has no internet connection. Of significance was our realisation that despite the RTI Act mandating that public authorities must proactively publish all relevant facts while formulating important policies or announcing the decisions which affect public, and proactively provide reasons for all administrative or quasi-judicial decisions, public authorities were not following this dictum. In fact, even when specifically asked for, information regarding why certain decisions were taken was hard to come by, made worse by an incomprehensible tendency, among many PIOs and information commissioners, to maintain that under the RTI Act you cannot ask for reasons or for an answer to the question "why?". We also confirmed that there was a fast-growing tendency among PIOs to illegally "transfer" RTI applications to other PIOs in the same public authority, thereby not only converting a single application into a dozen or more, but also starting an endless run-around. Though there are progressive judicial orders holding such a practice to be illegal, most information commissions do not seem to have taken note of this. Similarly, we discovered an increasing tendency among commissions, especially the Central Information Commission, to revert complaints and appeals to first appellate authorities and even to PIOs, totally in disregard to the letter and spirit of the RTI Act.

Perhaps the most disturbing of the various regressive tendencies observed among the adjudicators was the propensity to ignore legally mandated, and universally applicable, public-interest overrides on exemptions to the disclosure of information. Most orders (commissions and the judiciary) did not even mention this, leave alone apply it and, in some cases, it appeared as if the adjudicators were unaware of the relevant provisions of the law. Similarly, the legally mandated and universally applicable provision that information that cannot be denied to Parliament or to a legislative assembly, cannot be denied to an RTI applicant was mostly ignored and rarely mentioned. The data gathered for this study confirmed that adjudicators were by and large not insisting on the legally mandated provision of redacting exempt information from documents and records, and disclosing the remaining bits. In fact, is some orders, the presence of exempt information in a portion of the record was explicitly cited as the basis for withholding the disclosure of the entire record. There was also evidence that most adjudicators were ignoring the legal requirement for PAs to provide information free of charge, where a delay had occurred. Others were prescribing arbitrary limits to the number of pages that need be given free, in direct violation of the law. A widely prevalent lapse was the unwillingness to put, as required by law, the onus of proof and justification on the PIO, both in appeals and in complaints. This often led to adjudicatory proceedings and hearings relating to the RTI Act following the traditional path of the applicant being called upon to prove that the information being asked for was not exempt from disclosure, or that the RTI Act was violated, and without any acceptable grounds, by the PIO.

The Right to Information (RTI) Act has undoubtedly been one of the most empowering legislations for the people of this country. It has been used extensively for a range of issues: from holding local governments and functionaries accountable for lapses in the delivery of essential services and the safeguarding of basic rights and entitlements, to questioning the highest authorities of the country on their performance, their decisions, and even their conduct. The RTI Act has thereby started the process of redistributing power from the elite few to the general public, and initiated the task of converting India into a true democracy. Being one of the few legal instruments in India that empower the people to regulate the government, in contrast to most others that empower the government to regulate the people, the RTI Act has been continuously attacked and persistent efforts made to weaken it or to make its implementation increasingly ineffective. Earlier studies done by RaaG and others3 have studied in detail the various challenges faced in the proper implementation of this Act. This study focuses on some of the most critical institutions charged with the responsibility of ensuring that the RTI Act continues to promote transparency and accountability of governments at all levels, and thereby strengthen democracy. These are the independent adjudicators, essentially the information commissions, the high courts, and the Supreme Court of India. Though the functioning of information commissions has been examined in some of the earlier studies referred to above, these mainly focussed on the statistical and administrative parameters, in terms of how many complaints and appeals were received by each commission, how long did it take to dispose them off, in what proportion of the cases did the commission allow the disclosure of all or part of the information sought, and how many penalties did it impose. There was also an effort to assess the profile of information commissioners and to assess the adequacy of the budgets and the staff of commissions. Admittedly, some of this has also been done in this study, but the main focus here is to analyse the quality of the orders of the commissions and of the courts, and to understand the implication that these orders have on the transparency regime in India.

Background and genesis: This study is partly a continuation of the ongoing efforts to record and analyse the implementation of the RTI Act in India. But its timing, structure and methodology has been significantly influenced by emerging concerns about the failure of transparency regimes to effect sustained and progressive systemic changes in the process of governance, rather than just addressing complaints and grievances, relating to specific issues, that continue to recur despite increased transparency. While investigating reasons why a flourishing RTI regime in India, with more RTI -applications being filed than in any other country in the world, was not resulting in greater and more rapid systemic changes in governance, the initial focus was on public authorities and the assumption was that they were not doing what was required to learn lessons from the huge number of RTI applications that were being filed, or converting whatever lessons were being learnt into systemic changes and improvement. Though this assumption still holds good, and is being separately investigated, in the process of investigating this it became increasingly obvious that the adjudicatory bodies also had a much greater impact, than earlier recognised, in inhibiting progressive systemic changes. Hence this study.

Purpose and objectives: The overall purpose of this report, and of much of the research done for it, is to improve the quality of governance in India, especially in terms of its impact on the oppressed and marginalised sections of society. Specifically, this report looks at how to make the RTI Act more effective for improving governance, especially by bringing about systemic changes, through better adjudication. Towards that end, this report analyses orders and directions of the Supreme Court, along with recent orders of the various high courts, pertaining to the RTI Act. In addition, a sample of orders of information commissions are also analysed. Details of the sample and the sampling methodology are described in the Statement of Methodology below.

The objectives of this report, or what it hopes to achieve, are many. Foremost is the hope that the analysis and critique presented here provokes a public debate on the manner in which the RTI Act is being understood and interpreted by the adjudicators. Underlying this hope is the belief that in India there is inadequate informed public feedback to adjudicators, on interpreting and applying legal provisions critical to the upholding of fundamental public interest. Consequently, adjudicators, especially the higher judiciary, are denied access to an informed public debate. This is especially critical as the higher judiciary in India not only adjudicate on matters of law, on which they undoubtedly have great expertise, but on many other matters on which they could well benefit from the views of the public and of experts among the public. This lack of informed public debate also results in a sense of powerlessness and frustration amongst the public, as adjudicators give orders regarding matters that intimately concern them, without the basis and rationale behind the order being subjected to a public debate. Such a debate, apart from clarifying the various possible viewpoints, also helps the public to understand the various issues involved, and to understand the rationale of an order, even where they are not in agreement with it. Therefore, the first objective of this report is to facilitate such a public dialogue on issues related to the RTI Act, which mostly are of great interest and concern to the general public, and which are being adjudicated by information commissions, and in some cases by high courts and even the Supreme Court.

Undoubtedly, the judiciary and other adjudicating agencies must be objective and unbiased, and not be swayed by prevailing public opinion, however overwhelming. But surely the cause of justice would be furthered if the judiciary was privy to all sides of well-reasoned arguments that members of civil society sought to present, and to the pertinent facts they highlighted. If analysis of adjudicatory orders presented in this report are kept in mind and considered by judges of the Supreme Court and high courts while adjudicating on RTI related issues, then another major objective of this report would be fulfilled. Obviously it is not expected that all judges will agree with every point made in this report. However, if the issues raised here and raised in the larger public debate, that will hopefully be provoked by this report, are kept in mind, it would be one way of ensuring that the people of India, who in many of these matters are collectively an interested party, get their right to be heard, thereby satisfying an important principle of natural justice. Another primary objective of this report is to reach out to information commissioners to alert them on the common errors that have crept into many of their orders, and raise issues that need further detailed consideration. The findings of this report suggest that trends set by earlier commissioners often get emulated by new commissioners in the same commission. For example, the original commissioners in many of the information commissions, from the time they were set up, were hesitant to impose penalties4 and this tendency has been emulated by most, if not all, of their successors.

**Contents and Sample Pages**