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April 28, 2020

By: Venkatesh Nayak

While Governments at the Central and State levels have leaped back to the era of sharing information with the citizenry on a "need to know" basis, thanks to the threat posed by COVID-19 epidemic, all but one of the 29 Information Commissions established under The Right to Information Act, 2005 (RTI Act) have shut down. During the first and the second phase of the lockdown imposed by governments, we, at CHRI, conducted a rapid telephonic survey of Information Commissions established across India. While the Central Information Commission (CIC) resumed hearings in appeal and complaint cases from 20th April, 2020, its counterparts in the States are not yet functional. Our findings from the rapid telephonic survey are given below, followed by a submission as to why transparency and accountability are indispensable during public health emergencies like the COVID-19 epidemic.

Findings from our Rapid Survey of Information Commissions

During the first and the second phase of the COVID lockdown imposed by Governments, my colleague, Ms. Shikha Chhibbar, Programme Officer with CHRI's Access to Information Programme, made phone calls over five days, to all State Information Commissions (SICs) across the country.  I spoke with a few citizen activists, journalists and a State Information Commissioner as part of this exercise. Click here for the status update of Information Commissions

Our findings from the rapid telephonic survey are given below:

• The CIC started working in right earnest during the first phase of the lockdown to resume case hearings 20th April, 2020 onwards. Apart from internal consultations, it also held two rounds of external consultations with civil society advocates and former Chief Information Commissioners about its plans for resuming work. The Cause List displayed for the week beginning 20th April shows that the CIC scheduled hearings through audio conferencing in at least 337 cases. At close of business on 25th April (Friday), decisions in 279 cases had been uploaded on its website. We are only placing their statistical data in the public domain without making any comment about the contents of the decisions. We did not have to call up the CIC because information about its working is already available in the public domain.

• Only the SICs of Haryana Rajasthan and Uttarakhand were open during the first phase of the lockdown, with barely 1-2 staffers each. A security guard answered the phone in Haryana saying that none of the staff were present due to the lockdown. The Uttarakhand SIC was manned by a couple of junior level staffers who were unsure about when the SIC would resume work.

• During the second phase of the lockdown (which is in force at the time of writing this report) nobody picked up the phone at the Uttarakhand SIC. An individual present at the office of the Haryana SIC, who did not identify himself. stated that hearings might be resumed after the lockdown ends. 

• During the second phase of the lockdown my colleague was able to get through to the SICs in Andhra Pradesh  Goa, Telangana and Tamil Nadu as well. The Goa SIC had started working with a couple of junior level staffers who were unsure when hearings would resume. They said, none of the ICs nor the senior staff were attending office. Only one staffer was attending office in each of the SICs of Andhra Pradesh, Telangana and Tamil Nadu. All of them said they were unsure of the exact date on which the hearings would resume in their respective SICs.  Goa and Telangana SICs were being manned by a lady staffer each.

• During the second phase of the lockdown, we learnt from a senior woman journalist of her experience with the Assam SIC. The SIC was open but the lone staffer refused to accept the second appeal which she wanted to submit. He is said to have told her that there was no certainty when the SIC would resume work. However when my colleague called up the Assam SIC office during working hours of both phases of the lockdown, nobody picked up the phone. 

• The Odisha SIC was also closed and none of its landline numbers were functional. My colleague tried their Helpline No. advertised on their website. Nobody responded to the call.

•  In the Sikkim SIC, nobody answered the calls made to their landline numbers. When my colleague called up the mobile number of the Secretary advertised on the website, a gentleman stated that he was no longer working in that position. Next my colleague called up the mobile no. of the State Chief Information Commissioner (SCIC) advertised on the website. The individual who answered the call stated that he was not the SCIC of Sikkim! He also indicated that the SIC would not resume work until the lockdown is lifted in May. The SIC's website lists the mobile telephone nos. of 32 individuals working there, starting with the SCIC down to the safai karamchari (janitor).

• Nobody responded to the calls made to the landline numbers of other SICs during both phases of the lockdown. 

• Five SICs, namely, those of Assam, Bihar, Goa, Rajasthan and Uttar Pradesh are headless. The State Chief Information Commissioner's post remains vacant since several months in these bodies.  

• The SICs of Bihar and Madhya Pradesh do not have functional websites either. They could not be located through any Internet Browser. The website of the SIC of Nagaland was functional until recently. However it has become inactive during the lockdown period. 

People's right to know is part of the fundamental right to life and liberty

Recently, we have come across a line of thinking which emphasises access to health care facilities and the implementation of the relief and rehabilitation packages announced by governments over and above people's right to information. Protecting lives, it is said, is more important than providing access to information from government records. This school of thought misses an important justification for people's right to know, during these difficult times. The fundamental right to access information is not only a part of the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India. People's right to know is also deemed to be a part of the fundamental right to life and liberty. 

More than three decades ago, the Supreme Court of India said people's right to know is part of their right to life guaranteed under Article 21 of the Constitution. In the matter of  Reliance Petrochemicals Ltd vs Proprietors of Indian Express Newspapers Ltd., [AIR 1989 SC 190], a two-Judge Bench comprising of Justice S. Ranganathan and Justice Sabyasachi Mukharji (as he was then) held as follows:

"34...We must remember that the people at large have a right to know in order to be able to take part in a participatory development in the industrial life and democracy. Right to know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age in our land under Article 21 of our Constitution. That right has reached new dimensions and urgency. That right puts greater responsibility upon those who take upon the responsibility to inform." (emphasis supplied)

Sixteen years later, in 2004, another Bench of the Apex Court comprising of Justice Ruma Pal and Justice B. N. Srikrishna reiterated this view. In the matter of Essar Oil Ltd vs Halar Utkarsh Samiti & Ors. [AIR 2004 SC 1834], the Court held as follows:

"There is also a strong link between Article 21 and the right to know particularly where "secret Government decisions may affect health, life and livelihood". The role of voluntary organisations as protective watch-dogs to see that there is no unrestrained and unregulated development, cannot be over-emphasized." (emphasis supplied)

While the right to information deemed to be a part of Article 19(1)(a) is guaranteed only for citizens and is subject to the reasonable restrictions listed under Article 19(2) of the Constitution, the right to know which is a part and parcel of Article 21 is available to any person irrespective of nationality and is subject only to procedure established by law. The RTI Act was enacted to give effect to people's right to information under Article 19(1)(a) of the Constitution. No other law has been enacted to give effect to the people's right to know which is a part of their right to life. The absence of an enabling law does not weaken or extinguish the fundamental right itself. Public authorities have a duty to promote, protect and fulfill the right to know which forms a part of the right to life as well. This obligation becomes more pronounced and urgent during a public health emergency.

Importance of transparency and accountability during the time of COVID-19  

The challenges posed by COVID-19 have acted as brakes on the regime of transparency established by the RTI Act. On the one hand governments have gone back to the era of sharing information with people on a "need to know basis" and on the other, they have redoubled their efforts to make citizens and communities more transparent about their activities and behaviour to the State, through a variety of methods including specially designed mobile applications. All of this is happening  when people are unable to demand information as a matter of right as they would before the spread of the COVID-19 epidemic. The power equation between State agencies and the citizenry, which the RTI Act sought to place on an even keel, has become more skewed in favour of the former. 

The lockdown has effectively prevented citizens from filing RTI applications by post. Post Offices are refusing to accept mail that requires transportation outside the same village, town or city. Few Governments have put in place online RTI submission facilities like those at the Centre, and in Maharashtra and Delhi. Media reports and ad hoc helpline numbers are unable to effectively substitute the regime of transparency and accountability established by the RTI Act in which citizens play an active role as seekers of information. The COVID lockdown has turned most of the citizenry into passive consumers of information that the administration releases on a need to know basis.

Lakhs of migrant workers are either in government or privately run camps due to quarantine restrictions or because borders between States are closed for passenger traffic. There is very little data in the public domain about their numbers and well being across the 718 districts in the country. Media reports indicate at a woman was allegedly gangraped after being put in a quarantine facility in a school. It is not enough to prosecute the perpetrators. it is more important to book the authorities who took the decision to sequester her there without providing adequate security. Fixing accountability requires transparency of all action taken by the authorities before and after this terrible incident. 

State-wise data about the movement of food grains and other essentials is available in press releases put out by the concerned departments, but there is no transparency about distribution data at the district and fair price shop level. Complaints of diversion of food grains or allegations of inadequate or total lack of supplies meant for the poor are surfacing from many places. There is very little information about governmental action to curb such activities which strongly presuppose the continuation of corruption even during these trying times. 

Dashboard statistics have replaced comprehensive and actionable information- be it testing figures or relief distribution. By the Government's own admission there is only 40% outreach in the PM Ujjwala Yojana meant to ensure access to LPG cylinders to underprivileged households. Reporting what the concerned Minister said during the review meeting is a good start. But publishing the list of beneficiaries who have been served and the nature of difficulties in reaching out to others is crucial for the purpose of ensuring transparency and accountability in the implementation of this scheme.

Corona testing equipment purchased by the Government is turning out to be faulty. There is hardly any detail in the public domain about the decision making process or who has been held accountable for approving purchase of poor standard testing kits. A district-wise consolidated list of COVID-19 treatment facilities is also not available for the whole country. Reports of hospitals turning away non-COVID patients who require urgent health care are also surfacing. Apart from  warnings issued, it is not known what disciplinary action has been taken against such institutions. 

Scores of healthcare workers are contracting COVID-19 infection amidst complaints of inadequate distribution or poor quality of personal protective equipment (PPE). Front line health care professionals are losing their lives one by one trying to save other patients. There is no information about who is being held accountable for not providing adequate protection to the country's primary line of defence against the virus. Merely extolling their virtues or expressing admiration through sound and light shows amounts to tokenism, when accountability is the need of the hour.

Police highhandedness in enforcing restrictions on people's movement are surfacing everyday. There is no information about action taken against security personnel who beat up people, particularly the poor who are out in search of food and drinking water. Nor is there follow-up information about what the police do after arresting miscreants for attacking frontline healthcare workers. This is only a sampler of the hundreds of reasons why more transparency and accountability are required during these difficult times.  

Role of Information Commissions during public emergencies 

Our rapid survey shows, Information Commissions across the States have abdicated their role as champions of transparency when they are needed the most. As oversight bodies established under the RTI Act. they are the only agency easily accessible to citizens for dealing with complaints of lack of transparency at both micro and macro levels of government action. Given the restrictions on people's movement imposed by the lockdown, this is the time to press governments to comply with their duty of proactive information disclosure emphasised under Section 4 of the RTI Act. 

In all possibility, the lockdown and the consequent restrictions on people's movement are likely to continue for a much longer period. SICs must get their act together. They must start functioning in the manner of the CIC even during the lockdown. Granted, that hearing all pending appeals and complaints might be     

difficult in the absence of telephone numbers of involved parties, to conduct audio conferencing. But many appellants submit their contract numbers in their appeal and complaint letters. These may be identified from the papers already registered with the SICs and such cases may be prioritised for scheduling hearings. Many SICs are already saddled with huge pendency figures. The lockdown has only added to this burden. There is no reason why work cannot be resumed in the manner of the CIC after taking due precautions to prevent the Commissioners and their staff from attracting the viral infection. 

Even more important is for the SICs to establish a mechanism for receiving inputs from the citizenry about lack of transparency of government action at the State, district, tahsil and village level. In order to do this, they must return to work, open up their offices, advertise widely that they are open to addressing verbal complaints about lack of transparency at various levels of the administration through phone calls. They must get their staff to work their telephone lines round the clock, at least during working hours. Even though the RTI Act is silent about the Information Commission's powers to act on their own, they can act on emails or even verbal inputs received through phone calls from affected citizens and communities and issue advisories to governments to improve access to information. It is high time SICs come up with out of the box solutions in consultation with local transparency advocates and resume their role as champions of transparency in government.

Governments in the States of Assam, Bihar, Goa, Rajasthan and Uttar Pradesh must act quickly to fill up the vacant SCIC posts. Similarly, other vacant posts of Information Commissioners at the Central and State level must be filled up on a war footing. Transparency is not a privilege meant for less troubled times. The need for transparency is heightened during public health emergencies like COVID-19. Improving transparency at the macro and the micro level will boost people's confidence in the intentions and ability of governments to tackle such emergencies. This is the pressure valve that will ensure that hidden tensions among people worst affected by the lockdown do not explode.

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