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"People who have no interest and love for transparency and many people who oppose transparency have become Information Commissioners."

Jun 08, 2012

On the eve of the famous yet controversial RTI Act finishing seven years, Shailesh Gandhi, Information Commissioner, takes stock of the Act and what he sees as the way forward in a conversation with OneWorld South Asia.

OWSA: 12th May, 2012 was the seventh anniversary of the Right to Information Act. This is an appropriate time to take stock of this historical law. How do you assess its journey in last seven years?

Shailesh Gandhi: The Right to Information Act has empowered individuals who had no power earlier. This is its biggest achievement. I think it was a problem that was associated with our democracy. People had the right to cast their votes, but they weren’t able to do anything for the next five years. They had no say in governance. There was an impression that public representatives would return to talk to you after five years and will give you a bottle of liquor. Citizens had no power at all. If someone wanted to exercise the power or ask a question, then they had to do it in a collective or organised manner. The more power you had, the more reach you had and you were heard more.

Shailesh Gandhi CIC Credit SG.jpg

According to me, every citizen should feel sovereign in people’s rule. The Right to Information has brought about that transformation. People (read public servants) have now started feeling that they will have to listen to the every single citizen; answer their queries. And if these queries are not answered, a penalty can be imposed else, one’s salary may be cut. This is a slow process. I am not saying that everything has happened. But what I see happening, is that citizens are now regaining their dignity.

Going further to that, it is generally seen that a citizen who goes inside a government office comes out with a feeling of helplessness and anger. Right to Information was a tool to correct this problem of our democracy. This is a big step in that direction.

OWSA: The Government and Indian Prime Minister Dr Manmohan Singh have been mulling for a critical review of the Right to Information Act. What is your opinion on it?

SG: Those who have power are feeling uncomfortable; they think that they are losing their power. People are questioning them. The people who wielded power earlier on, never realised this, while the right to information was being debated. No one understood the power, neither politicians, nor judiciary or bureaucracy.

Most of the laws in our country become redundant in a few years because they are not implemented properly. So, these people understood this Act to be on the lines of other such legislations. We have given many rights – the right to life, right to food, right to live. But we have left our citizens with the right to stay hungry and naked.

I feel these people never realised its power. But interestingly, people have adopted the Right to Information Act. It doesn’t depend on a government department or a programme for promotion. It never had a leadership. So, it provided a voice to individual citizens. What I have seen is that the people can file RTI queries while sitting at home. If I want to apply for information under the Right to Information Act, I can do it individually. I don’t need someone with me. Because of this, it has a wide reach now.

When people started criticising this Act and were seeking amendments in the Act, then protests from the citizens were seen across the country. There was no organisation or leader to lead this. No one can claim that it has happened because of a leader. So, people in power are feeling anxious because the common man is now standing up for his right.

However, I agree that people are misusing this Act. But that is at very low scale. Few citizens have got aggressive because of this Act. But I think that is not appropriate. We should use our rights in a responsible manner. It happens in every movement.

I feel that review of this Act should happen but from a point of view of strengthening it. It has been quite evident that whenever debates of reviewing this act start then it was found that the government, judiciary and bureaucracy always wanted to weaken this Act. That is why people associated with the Right to Information oppose any move of reviewing this Act. It should ideally be reviewed when it becomes so powerful that no one dares weakening it.

OWSA: So, What according to you are the areas of improvement?

SG: There are three major threats to this Act. The proliferation of this Act is going on well now. These threats are now visible. If we don’t address these threats, RTI will die in the next five to ten years. If it is able to continue, it will transform our democracy.

From the point of view of curtailing this Act or amendments or making it ineffective, the RTI Act faces very little threat from governments and bureaucracy.

But it has more at threat from judicial processes because most of the progressive decisions are stayed. Every public authority takes a stay on such decisions, that too on government’s expense. And then, it takes five to six years to complete the judicial processes. Citizens don’t have power to follow it up. According to me, threat is from judicial stays and processes.

There is also some danger from Information Commissioners and Information Commissions. In states where RTI is popular and people are using it effectively, pendency has increased. Cases are not heard and consequently, decisions are also not taken. There are few states like Odisha and Uttar Pradesh where it appears that the pending cases will be heard only after three or four years. If it starts taking two to three years to hear a pending case, then this Act is going to die.

In central government, Central Information Commission is hearing cases that are pending from last one or one- and-a-half year. That too, when RTI has completed seven years only. With expansion of the Right to Information Act, appeals and complaints are increasing. After five years or by 2016, I believe that the number of pending cases in the central commission would be around 80,000 to 1,00,000. If these cases are not tackled soon enough, the Right to Information Act would become redundant like other Acts, as has happened in past.

OWSA: What are the biggest problems and challenges being faced by the central and state information commissions? Is it shortage of staff, more number of cases? What it is?

SG: According to me, government and its various departments must not complain about the increasing number. They cannot say that the number of cases is increasing so they can’t work. For sake of an example, the police may one day say that they can’t work because numbers of cases are increasing.

Up to an extent, this is correct that there is a dearth of resources and staff in many commissions including the central commission. But I think, information commissions should take responsibility for this. Information commissioners are among the most paid public servants of this country. So they should take the ownership for this.

The information commissioners of the government are saying that they don’t have enough resources and they are not able to work properly. Then, I think this is their responsibility to initiate a public debate and ask government to shut down these commissions. So, there is no solution until they take its ownership. I believe that this is the responsibility of these commissions.

For example, I myself hear more than 5000 cases in a year. Most information commissions in the country dispose 0ff 1000 to 2000 cases. At the most, they solve 3000 to 3500 cases in a year. However, solving 5,000 to 5,500 cases is possible. If they start disposing off at this rate and start understanding that delivery is their responsibility then the whole situation will change.

OWSA: A report released by CHRI says that 90 per cent of the serving Chief Information Commissioners are retired bureaucrats. At the same time around 66 per cent of the information commissioners are bureaucrats. This raises two questions:Would it be right to say that the red-tapeism and related bureaucratic bottlenecks that have been behind much lack of transparency over decades of India’s history have permeated the information commission machineries in the country?

SG: Up to an extent, this is correct. But according to me, the biggest problem is age. Most of the information commissioners are quite old. Most of them belong to the age group of 60 years or above.  Most of them take it as a post-retirement job. So I think younger people should be given a chance. Bringing accountability and transparency in their work is important. And people who have a relation (read those who understand) with the transparency and accountability should be appointed as Information Commissioners. They are committed to transparency.

OWSA: The second question then is, what is its impact?

SG: People who have no interest and love for transparency and many people who oppose transparency have become Information Commissioners. Most of the commissioners come from political appointment which doesn’t have any set procedure.

In fact, there is a selection process for the selection of a driver and peon in our Information Commission but there isn’t any process for the appointment of an information commissioner. It is done on a purely arbitrary manner. Most of the commissions including the information commission have become place for the appointments of political favourites. This is a wrong method and should be corrected.

OWSA: Indian Prime Minister Dr Manmohan Singh was once quoted saying that the “RTI must not end up discouraging honest, well-meaning public servants from giving full expression to their views”. Do you agree?

SG: I completely disagree. According to me, if I work honestly then I don’t see any problem in being open. Even once the Chief Justice of India had said that judges spend a lot of time on (answering) Right to Information. For instance, Public Information Officers in my office are instructed to provide information that is available on the record and for the information which is not available they just need to inform that the particular information is not available. There is nothing in it other than this.

If someone has a problem in providing the information which is available on the record then it must be a mistake. Mistakes should come out.

The biggest strength of the Right to Information is that it brings out the mistakes. There is a lack of trust among people and the government. People should be informed of what is happening and they can criticise when they feel. Government officials should think positively about criticism whether it is correct or not. This mind-set, that the people and truth obstruct work, exists because citizens are not the emperors in democracy.

The mind-set of the people in power is that they are always right. This is against the basic understanding of democracy. This understanding hasn’t developed in some of the prominent people of this country. If the Right to Information Act continues, then this understanding will develop among the public representatives and those who have power. It is important.

OWSA: You have been advocating for an effective Jan Lokpal Bill (Public Ombudsman) in India. Do think that it should cover private companies and NGOs?

SG: The information commissions of the country are not capable of dealing with the complaints, although at present only public authorities which includes some private firms fall under the purview of this Act. It would become tough to implement this act if private firms and NGOs are included. We don’t have the machinery to implement simple orders.

As I said, when something big happens, they obtain a court stay on it. We don’t have the capacity to implement penalties either. There is a reason behind this. This isn’t an allegation on commissions today; the entire government machinery is not capable of fulfilling the expectations of the people. We need to bring about such capability. My belief is that the government machinery would be happy if this Right to Information Act meets the same fate like other legislations. I don’t have any objection if everyone becomes transparent. But if the governments and public authorities become transparent then it would be good for this country.

OWSA: Any three points that you would like to suggest for strengthening this Act?

SG: My first suggestion is to bring the Information Commissioners up to the mark where they are completely transparent. They should commit to ensure the disposal of complains within three or four months. I think this is required. Secondly, a budget can be allocated but it would not work without the support of the first. So, it would be proper if budgets are given to the information commissions and they were free to choose the way they want to spend the money.  Thirdly, I think the Information Commissioners should be selected by a standard defined process. I believe that the age of most of the Information Commissioners should be less than 55 or 60 so that they can work with full capacity. They should have some understanding of transparency. No one is bothered if the person has some interest in the position of an information commissioner.

OWSA: An IIT Bombay graduate, founder and CMD of a company, leaves all this to become an RTI activist and finally a Central Information Commissioner who is going to retire in July. What inspired you to become an RTI activist.

SG: Becoming an Information Commissioner was a fluke. There isn’t any process to appoint an information commissioner. As far as my association with the RTI Act is concerned, it happened almost 15 years ago when I was 50. I had gone to participate in an alumni function where one of professors said, “Look, when you were here in college then would criticise society, government and social structure. So what is your opinion now?”

I thought that I should say that it is pathetic. But at the same time, a second thought struck me that when I used to criticise it at the age of 20, then it was ingrained that we could do better. We can form a better society and will do it.  At the age of 50, I had that responsibility to create that society. I mean that generation of people. I also had this feeling that we have failed. But then, who should be blamed? Then I started thinking that it is important to do something. Then I planned to sell my business and thought of doing something socially relevant. I sold my business in 2003. At the same time, someone told me that Maharashtra has enacted a good RTI Act in 2003. When I used it for five or six times, I started understanding that this could be the biggest change agent for this democracy. As I mentioned earlier, it empowers every citizen, that too without involving in politics. It has nothing to do with that. You need not agree with someone. So it can fill this gap in our democracy. In 2003-04, when I started using it and training people, it became clear that RTI would have a long-lasting impact on this democracy.

OWSA: What is next after your retirement on 7th July 2012?

SG: I will return to Bombay and will start working as an RTI activist and other issues like governance unless the RTI Act becomes hollow. I am hopeful that it would not become hollow. I would organise people to change the existing system for setting up a better and responsive RTI regime of the government.

OWSA: Shailesh, Thank you for giving us your time. We hope people would join you in your efforts.

SG: Thank you. I hope that each and every individual would make efforts to empower this Right to Information Act. If we lose this opportunity then this opportunity will not come after five to ten years. It is important to spread this message to everyone. Every citizen should commit to save the democratic fabric of this country. I would like to share a slogan that I have given. Mera Bharat Mahaan Nahi Hai, Par Yeh Dosh Mera Hai – My country is not great. But I am to blame for this.

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