'Selection of information commissioners is arbitrary'

Information Commissioner Shailesh Gandhi sold off his business in 2003 to do something relevant. The Indian Institute of Technology-Mumbai alumnus soon became a prolific user of the Right To Information Act and filed more than 800 RTI applications.

He was appointed the Information Commissioner at the Central Information Commission, New Delhi, in 2008.

In this freewheeling interview with rediff.com's Priyanka, Gandhi says that appellants must understand that law describes 'information' as something which 'exists', and only those can be given out.

He also notes that the selection of information commissioners continues to be arbitrary and faulty.

Approximately how many RTI applications are filed in all states across the country in one year?

I feel 99 percent chances are that it is between 50 and 80 lakh applications per year. We don't have perfect count of it, but let me give you some figures:

Some of the state commissions published reports based on number of RTI applications filed in public authorities. Now, this is under-reporting because a lot of public authorities may not report to all the RTI applications filed with them. But the figures that come can never be an 'over-report' either.

The central commission had recorded that last year 550,000 RTI applications were filed in various central government bodies. The Maharashtra commission had recorded a similar figure for RTI applications filed in state government bodies.

Now, if you go by secondary data, the state of Uttar Pradesh has more appeals than both these taken together. And hence chances are the RTI applications are much more. Nonetheless, for Maharashtra state commission and central commission alone, the reported figure is about 11 lakh RTI applications in one year.

So, my own rough estimate is that probably 50 to 80 lakh RTI applications are filed every year in centre and state government bodies taken together.

How many RTI appeals does an information commissioner resolve in one year?

If my memory serves me right, we had resolved about 24,000 cases in one year, but we had eight information commissioners at that time. Now, there are only six. So, maybe we will resolve around 20,000 cases this year.

Do you think enough is being done?

No, absolutely not. This is something even I am concerned about, and is the primary reason why I chose to join the commission.

I couldn't have come here by choice; I came here because they asked me to join. My belief is that commissions must dispose whatever comes to them. For me, that is non-negotiable.

Not just the information commission, I am referring to all judicial and quasi-judicial systems in the country. Unfortunately, our judicial system doesn't work properly, and so most quasi-judicial organisations also think they don't need to. With this in mind, when I had joined, I had made a promise that in one year, I will make sure that the pendency of cases and appeals are not more than three months.

And I have been able to achieve this. Now, there is some change in portfolio and I have given some old cases which I am dealing with. But I will make sure again in another three months time that the pendency of cases will again be less than three months.

I will be completing three years as a commissioner now, and in this period I have personally disposed off over 15,000 cases, which is about 5,000 in a year. I believe it can be raised to 6,000 to 7,000 cases per year by each information commissioner. 

Of all the RTI applications that you receive, how many of these are filed by ordinary citizens, and not RTI activists, to know for instance, why one is not getting a license made on time or related to other day-to-day services?

I cannot give an exact percentile, but my guess is more than 80 percent are ordinary people. I have not done an analysis, so I am saying this based on my overall gut feel that about 70-80 percent of the appeals that reach me are made by ordinary people.

In my experience, I have observed that at our stage of appeals, 25-30 percent of these are based on RTI applications filed by RTI activists, rest are all ordinary citizens.  But their number could be much higher.

A lot of times, a common citizen files a RTI application and he/she does not know what to do next. He/she either doesn't know or he/she doesn't want to pursue. And I see lots of them.

When an ordinary person files a RTI application, is there any counseling or guidance cell to assist him/her on how to go about it?

It is not in the system, but there are a lot of citizen efforts, which help ordinary people. In Mumbai, I know dozens of them. In Delhi also there is a large number. People generally come to know these by word-of-mouth.

In Mumbai, for instance, people get to know that experts would be available for 2-3 hours every week to help them write RTI applications correctly. In Mumbai, there are at least 30 such centres, and typically, it is free of charge. And I am sure such things are there in various towns across the country.

The RTI act came with the mission to make sure that there is 'transparency and accountability in public dealings.' It is understandable that RTI makes workings transparent, but how does it fix accountability, because it does not punish anybody?

Let me try and explain how we make people accountable. Let's say, the information commissioners do not say in public how many cases they resolved or have taken up, it is very unlikely that anybody would question us.

When one puts out figures, it amounts to pressure to deliver. And we making the figures of how many cases have been resolved and how many cases are pending; all these figures are displayed publically. That itself creates pressure from citizens.

As far as I know, there is no judicial or quasi-judicial body in this country which talks of any kind of accountability of how much they will deliver. The central information commission has at least come up with a norm and said that each commission will dispose at least 3,200 cases in one year.

In totality, I feel transparency leads to accountability. For instance in the Commonwealth Games scam, the fact that there was some transparency at some level and we came to know about what was happening on the inside, which then helped to fix accountability.

But the 'accountability' factor is an indirect pressure; transparency is understandably has a more direct relationship?

Most certainly, I wouldn't deny that. But see this in a wider perspective; the fact that figures are being made public makes you feel that you have to be accountable, even if there is no public pressure.

When your performance is out there in the public, and if it is not good, people laugh at you if nothing else. And hence the human need to be praised and appreciated adds to the pressure to improve your performance or give greater accountability.

But do you think it will work on the thick-skinned politicians we have in the country today?

I feel you are being too harsh on a particular group. Corruption in this country is a much deeper problem. I feel the government is not in a position to deliver. Accountability is completely missing.

Nobody is really bothered when and what they deliver in almost all walks of life. Secondly, government procedures are so archaic and nobody is paying any attention to change them, modify or improve them.

Back to RTI, on what grounds can a RTI application be rejected? What kind of information cannot be sought and what kind of institutions are barred from giving information?

What can be sought under the RTI act is 'information' and there is a proper definition of 'information' in the law. In most simple terms, it has to exist. It sounds simple but very few people understand what 'information' is. And when somebody says it does not exist, they are not happy with it.

Government officials also do not understand what 'information' means. For example a 'clarification' is not 'information' and questions like -- 'what is the meaning of this law, are you working as per law, are you taking bribes,'; these are some of the most commonly asked questions, and none qualify as 'information' that can be sought. Information has to exist and a Personal Information Officer is obliged to give you what is on record. If it not mentioned on record, he will tell you so.

Second, one can ask for information only from a public authority. To put it simply all government offices are public authorities. Apart from this, any institution which is created by an act of Parliament or legislature is a public authority. For example, a university is notified by act of Parliament and it is a public authority.

There is another segment, comprising of bodies owned, controlled or substantially financed by the government sector, and information under the RTI act can be sought from them.

In my opinion any company where the government has more than 50 percent of holding, information can be sought. But it can also become tricky. For instance, a housing co-operative society is not controlled by government; it is not a public authority. However, if a registrar of housing society imposes an administrator to control a society, then it becomes a public authority, only as long as the administrator is appointed, because then it is being controlled by the government.

Some people also take the definition that all regulators are controllers, but this is a grey area and there are several rulings regarding this.

If a person wants to file an RTI application and he/she is not sure if it is a public authority or not, what should he/she do?

The person should anyway go ahead and file the RTI application; in 99 percent of the cases the body will say it is not a public authority.

They can file a complaint with the commission, but there should be some ground. If a body is saying it is not a public authority, I would expect a prudent citizen to think about it, if it really is a public authority and not coming rushing to the commission. Apply your own mind also. You have to go as per the law.

Section 3 of the RTI Act is the smallest and says that all citizens shall have the right to information. Section 8 (1) states what can be denied, there are ten exemptions granted. However, Section 8 (2) says if there is a larger public interest, then notwithstanding the exemption, information should still be given. But it has to be proved that there is a larger public interest. But these cases are very rare and very few commissioners are willing to stick their neck out.

Certain intelligence and security agencies which are identified by the government and are exempted under schedule 2 of the RTI act will not be covered except for a violation of human rights or corruption. These institutions, though part of the government, are exempted from the RTI, though I feel someday maybe we will see a change in the RTI Act.

Please share some practical tips for filing effective RTI applications.

Ideally, the shorter the RTI application, the more are your chances of getting information. And if you are asking a list of questions, most of them, I feel are counter-productive. Now, I am not talking about the law, the law does not prohibit you from writing a 100-page novel if you like. But please understand the PIO is also a normal human being like you and me.

In most cases, one can figure out what objective the RTI would be serving and hence the one can restrict the RTI to about 3-5 more focused queries.

A PIO is more likely to answer a short query, he is not too keen to answer long queries, and the first thing he wants is to put long queries away. For instance, if you ask 20 queries, the PIO also does not answer all of them and he might dodge the more important ones. What is important often gets missed.

I remember once an appellant in a case said he had not got the information he had asked for. His RTI application was 15 pages long, and the PIO had made a fair attempt to answer and to address them in about 25 pages of answers; he must have spent hours on it. 

I asked the appellant what exact information he wanted. As a rule I refuse to go through 20 pages because there are many others as well. He then asked his question in 20 words and I directed the PIO to give the information he was seeking.

See, I was myself a very prolific user of RTI and must have filed 800-1,000 applications. 95 percent of the times my queries including name and address have been on one page.

All queries have a purpose in mind; think clearly what record which will lead to your query and think of your query in terms of a record, not a cross examinations. Many times, people get into taunting moods, nobody is listening to them.

One poor PIO is not the whole government. There is a lot of anger against the government and they pour it all out in the RTI, but it doesn't help. It puts off the person who is reading. Also, most importantly, the queries should be understandable. Sometimes, I cannot understand what is being said in long paragraphs.

I often suggest to first-timers to form a query and ask a friend who doesn't know what you are thinking. If he can't understand, then the PIO will also won't understand it. Keep it short and keep it focused.

What is the biggest problem being faced by the central and state information commissions'?

It is the pendency of cases, especially in state commissions. The number of cases pending has already become 2-3 years in Orissa and I strongly feel that the time taken to dispose off cases should not take so long; it takes off the pressure off from PIO to give information.

You had once said that the selection of information commissioners is faulty. Why?

Absolutely, I do believe that my selection is faulty. See, there is no proper process being followed. In fact, the selections of members in many committees -- women and children commission and minority commissions formed in the country are faulty.

A few influential people just decide randomly. I feel a proper and transparent system should be followed for the selection. These commissions are the checks and balances of our democracy and all of these are done by completely random and arbitrary processes.

Therefore, checks and balances of democracy do not function. And so, all citizens must demand for a transparent process. These are strong positions, and if people are chosen wisely, it can make a huge change, which right now is not happening.

What do you feel about information commissioner and higher judiciary declaring their assets publically?

I wanted to declare my assets publically soon after I first joined, but it couldn't happen then. We brought this up again this year, and the current chief commissioner said all information commissioners should declare their assets, which was posted online a few months ago. 

Judges are also declaring their assets, many of them are still not declaring, though. But this is how pressure is built up. At one time nobody did, only gradually people have started declaring their assets publically and many others are following them.

I had once received an RTI where the appellant wanted the assets of the President of India to be known publically. The PIO said he does not have such any such information, hence it could be given out.

As I had said, the information has to be existent to be given out. When the matter came before me, I put in a line there which read -- 'now that everybody is talking of transparency and the PM, ministers and judges have put up their assets publically, it would be nice if the President also considers doing it.'

I can't order the President; it is not in my powers. But in one month, the President has put up her assets. And now she has done it, subsequent Presidents will also keep doing it. This is how pressure is built up.

Image: Shailesh Gandhi