In Bihar, The Systematic Gagging Of India’s Sunshine Law

09 Nov 2020 15 min read  Share

At least 17 activists who regularly used the Right To Information Act to expose corruption in Bihar have been murdered since 2008. Hundreds face false cases. One activist has been in prison since March, with 14 cases against him. Neither the government nor the police responds to requests for protection

RTI activist Hemant Kumar's 81-year-old father, Mahesh Prasad Singh.

Updated: Nov 20, 2020

Muzaffarpur: Out to meet a friend at a restaurant in Muzaffarpur in the northern state of Bihar on the evening of 5 March this year, Right To Information activist Hemant Kumar suddenly found himself surrounded by policemen in civilian clothes. News of Kumar’s arrest reached his 81-year-old father, Mahesh Prasad Singh, only the following morning. The family would find out that Kumar had been kept through the night at the Maniyari thana, or police station, located 12 km from Muzaffarpur town, and presented before a magistrate on 6 March.

Kumar was accused of kidnapping Ajay Kumar, an advocate based in Vaishali district, about 30 km from state capital Patna and more than 60 km from Muzaffarpur. The complaint had been filed six months earlier by the advocate’s wife, in September 2019, and did not name a suspect. But she told a magistrate that she suspected Hemant Kumar’s involvement, and he was arrested. He was granted bail later.

But Kumar is still in jail, first in Muzaffarpur and later in Bhagalpur, his family unable to meet him owing to restrictions due to Covid-19. Since 2012, Bihar police has lodged 14 cases against Kumar, including 10 cases in 2020. These include charges of cheating, threatening, extorting money and at least two serious cases, one for allegedly outraging the modesty of a woman and another under the Protection of Children from Sexual Offences (POCSO) Act, 2012, for allegedly assaulting a minor girl. Kumar was granted bail in these two cases too.

According to his family, the cases against Kumar are all fabricated. “They were filed at the behest of Bihar’s former Director General of Police Gupteshwar Pandey,” said Mahesh Prasad Singh. The family said the then DGP targeted Kumar after a series of exposes the latter facilitated regarding corruption in the state police during Pandey’s six-year tenure as Additional Director General of Police (ADG), Deputy Inspector General of Police (DIG) and as Inspector General of Police (IG) in Muzaffarpur zone.

Speaking to Article 14 over the telephone, Gupteshwar Pandey dismissed the allegations. “Other than one petitioner, I do not know the others who have filed cases against him, therefore the question of my instigation does not arise,” said Pandey. He said Kumar was only using RTI as a tool for extortion.

Kumar’s case is not an outlier among Bihar’s activists who use the Right To Information Act, India’s sunshine law passed in 2005 to transform the relationship between citizens and arms of government. At least 17 RTI activists in Bihar have been murdered since 2008, and hundreds have filed complaints of receiving threats or being harassed on account of material they unearthed or demanded information on.

But while the Centre has advised states to implement measures to protect RTI activists, Bihar’s rights defenders remain vulnerable, working alone and easily identifiable in small towns by those whose corruption they seek to expose. Not only has police investigation into RTI activists’ murders been slow, but activists also face false charges and police harassment for their work.

17 RTI Activists Killed, 600 Face False Charges

Seventeen RTI workers have been murdered in Bihar since 2010, according to Shiv Prasad Rai, a seasoned RTI activist and president of the Nagrik Adhikar Manch (Forum for Citizens’ Rights) in Buxar district of northern Bihar, on the border with Uttar Pradesh.

In 2018, when five activists were killed, the 70-year-old Rai decided to write to the state’s chief minister, Nitish Kumar.

“Promoted as the government of ‘sushasan’ (good governance), Bihar state continues to record death by murder of RTI activists who have used the RTI Act to expose the irregularities in the state,” Rai wrote in an email to Nitish Kumar in December 2018.

Rai has meticulously followed up the case of every murdered RTI user in the state. Barring a pending visit to Begusarai to investigate Shyam Sunder Kumar’s murder in February 2020, a visit delayed due to the pandemic and lockdown, members of the Nagrik Adhikar Manch have visited the family of each of these 17. They maintain detailed records, said Rai.

Most of these murder victims were exposing corruption at the village panchayat, block or nagarpalika (municipal council) level, according to Rai. “This also in a way made them vulnerable to attacks, as those exposed were, so to say, their neighbours,” said Rai.

In almost all of the 17 cases, the victim had notified the local police station about the threat. Some had sent formal applications to police stations about receiving life-threatening intimidation, as in the case of Advocate Ram Kumar Thakur (40) from Muzaffarpur, who was murdered in 2013.

The police failed to respond proactively in even one case, and instead only advising the applicants to be cautious.

Jayant Kumar, a 28-year-old RTI activist from Vaishali district in central Bihar, had exposed corruption in the Bihar State Food Corporation, incurring the wrath of petty contractors and the pramukh, or chairperson, of the Goraul block development committee in Vaishali. Jayant Kumar had also unearthed fraud in police recruitment to positions including that of Station House Officer (SHO) in Goraul police station in 2018. He faced cases of robbery, violent attacks and extortion, eventually spending a year in Vaishali district jail. Released on bail in March 2018, he continued his activism.

Ten days before he was fatally shot in April 2018 near his village, Kumar approached the deputy superintendent of police, Vaishali district, asking for security. The threats appeared real, he told them in his written application. He said the threats were from the block development officer and the in-charge of the Goraul police thana.

The other RTI activists who were killed had similar experiences too.

Kamlesh Jha, 60, who worked alongside his son Rahul on RTI matters in Saharsa district of eastern Bihar, is now implicated in several false cases, said Rai, who visited the family after Rahul was murdered in February 2018.

Since 2012, several cases were slapped against Rajendra Prasad Singh (60) of Motihari in East Champaran district. Singh was sent to jail and was fatally attacked in June 2018, said Rai. He said arrests in false cases are a routine occurrence for RTI workers in the state.

In response to RTI applications filed in 2014 and 2017, Rai received from the State Information Commission two lists of more than 600 names in total, all RTI users who had filed petitions with the Commission recording threats and harassment they were facing due to their work.

Narayan Giri, 43, another RTI activist from Rohtas district in western Bihar, said he too has had to face false charges.

RTI activist Narayan Giri.

He said he was attacked in 2012, slapped with a rape charge in July 2016, and arrested in May 2018 as he continued to use his RTI applications to expose a liquor mafia in his village, the Baliya gram panchayat. “The police thought the case would scare me and I would discontinue filing RTI applications,” Giri told Article 14. He said police personnel in Natwar police station were upset at him for exposing their association with the liquor mafia. Already, in 2013 and 2014, the Rohtas superintendent of police and the Sub DIvisional Police Officer-Bikrampuri were pulled up for not releasing data sought by Giri on police stations’ expenditure.

In July this year, an investigation by the office of the DIG, Shahabad Range, gave Giri a clean chit in the rape case. On the day of the alleged rape, Giri had attended a meeting at the Information Commission in Patna, the probe concluded. Awaiting a court order, he and his two sons now face another case that he says was filed on the behest of the liquor mafia.

“It is difficult to fight powerful people especially when the police are also with them,” said Giri. Of the 10 RTI activists he knows in Rohtas, he added, three others are facing trumped up charges.

Rai, who hails from Buxar on the state border with eastern Uttar Pradesh, has himself filed more than 1,000 RTI applications since 2008. Sometimes, when no official action was forthcoming on corruption or fraud he unearthed, he approached the courts. He has filed at least 50 writ petitions in the Patna High Court, including on the Rs 1,400-crore paddy scam in 2014, seeking CBI probe into manipulation in staff recruitment under the Bihar Staff Selection Commission in 2017 and challenging the education department’s order compelling school children to participate in a government-sponsored human chain in January 2018.

Rai has been targeted for his work too. Rai told Article 14 that in 2008 he’d been invited to meet a government official, ostensibly regarding clarifications on an RTI application he had filed. The State Information Commission had imposed a fine of Rs 25,000 in October that year on the official for not providing Rai information within the stipulated time.

At the scheduled meeting, Rai claimed, the officer “threatened to destroy” him. When Rai stood his ground and argued his right to seek the information, the official slapped on him a case of extortion and use of force to deter a public servant. Rai spent close to a month in Buxar jail before being released on bail.

A Union Ministry of Home Affairs notification dated 14 June, 2013 on the subject of providing adequate security to RTI activists was circulated to all state governments. Accompanying the notification was a 2011 report of a Task Force set up by the Department of Personnel & Training (DoPT) that recommended measures for protection of persons accessing information through RTI. It said the National Human Rights Commission (NHRC) could act on attacks against RTI activists. It recommended better use of Section 18 of the RTI Act to safeguard RTI users. Section 18 mandates that officials must ‘receive and inquire into complaints by any person’ denied access to information.

In Bihar, however, little appears to have changed. Since the 2014 notification, 11 RTI activists were murdered.

Of the 17 RTI activists murdered since 2008, the police have made headway in only one case.

Rai cites the example of activist Ram Vilas Singh, murdered in Lakhisarai district in central Bihar in 2011. The local court sentenced four persons to life imprisonment. “However, the main convict, a noted criminal by the name of Baban, against whom the police have several cases, is recorded as absconding,” Rai said.

The remaining cases are all pending, some in the trial stage and others with no arrest yet. Article 14 spoke to the family members of three murdered RTI activists.

In the case of the 2012 murder of Dr Murlidhar Jaiswal, 72, of Munger in eastern Bihar, the court is still to examine the witnesses, said Dr Hariom Prasad, Jaiswal’s son. The case became so vicious that not only was the family forced to drop the name of a deputy superintendent of police as a suspect in the murder, but a cousin brother who was a key witness was also shot dead in 2014, Prasad said.

The three men arrested are out on bail. Prasad said he is frightened about visiting Munger court for follow-ups.

Rahul Jha’s case has not progressed beyond the FIR filed immediately after the murder in February 2018, according to his father, Kamlesh Jha.

In the case of 60-year-old Rajendra Prasad Singh of Motihari district who was murdered in 2018, three men were arrested and two surrendered. But the main accused, the husband of the mukhiya or elected leader of Singh’s village gram panchayat, was granted anticipatory bail the same year and the case has languished since, said Rajesh Ranjan, Singh’s son-in-law.

The Compelling Case Of Hemant Kumar

RTI activist Hemant Kumar/SATYA PRAKASH

In the early part of the decade, Muzaffarpur was among the 30 ‘Naxal-affected’ districts of the state, and there were several reported instances of violence. In one police operation, when Gupteshwar Pandey was Additional Director General of Police (ADG) based in Muzaffarpur, 26 Naxalites were reported to have surrendered before the police on 14 December 2012. At a public event in a school compound, the homecoming men were garlanded.

But when local journalists including Hemant Kumar dug deeper, they found that the surrendered Naxalites were local criminals with several cases of theft and dacoity against them. They had no interaction with the Maoists, claimed news reports.

Ten days later, on 25 December 2012, Kumar was arrested for allegedly stalking a woman. Charges of wrongful restraint (Section 341 of the Indian Penal Code, 1860), criminal assault to outrage the modesty of a woman (Section 354 IPC), insult to modesty of woman (Section 509 IPC), indulging in obscene songs/act (Section 294 IPC) and voluntarily causing hurt (Section 323 IPC) were slapped against Kumar. Before arresting Kumar, Muzaffarpur police paraded him in town with a placard around his neck that said “chhedkani karna mera pesha hai” (molestation is my profession).

According to the family, local reporters had received calls from Pandey regarding the source of information about the identity of the ‘Maoists’, and Kumar was considered a ‘suspect’.

Speaking to Article 14, Pandey denied any knowledge of Kumar being paraded in town, but admitted that the complainant in the case had spoken directly to him, then the ADG, and had threatened to commit suicide if she didn’t receive protection. To prevent any untoward incident, he asked the Muzaffarpur superintendent of police to take “sakht kadam” (stringent steps), Pandey said.

Asked if a person may be paraded by police with a placard around his neck, Pandey told Article 14, “Not in this age of policing, although such methods were common practice in olden times.”

Kumar received bail the same day, but he filed counter cases against the police for humiliating him as well as against the woman for allegedly falsely implicating him. The court sought an explanation from the Muzaffarpur police station. The matter is now pending in the Patna High Court.

Pandey told Article 14 that Kumar also later filed an application naming him as an accused, but the court dismissed the application.

Gupteshwar Pandey was posted in Tirhut Division based in Muzaffarpur for six years - from April 2005 to November 2007 as DIG - Law and Order and later as IG from January 2010 to October 2012 and as ADG until December 2013.

In 2005, Pandey as Deputy Inspector General (Law and Order) appeared for his law exam at a college affiliated to the Babasaheb Bhimrao Ambedkar Bihar University (BRABU) Muzaffarpur without seeking necessary clearance from the Home department. Kumar gathered information that Pandey used an impersonator to write his papers, which was published in several news outlets. Pandey eventually faced a departmental probe.

In November 2006, on a complaint regarding Pandey’s ‘impropriety’ in showering money on a Bhojpuri singer, a departmental investigation found the policeman to have indulged in ‘indecent behaviour’. As part of disciplinary action, one salary increment was withdrawn.

In February 2009, Pandey was posted as IG (Security Special Branch), when he sought voluntary retirement citing his mother’s illness. A day before his relieving date on 15 March, Pandey sought to withdraw his application for voluntary retirement, this time citing his wife’s ‘mental disturbance’. He said he was the lone earning family member and could not give up his job to look after his mother.

Article 14 examined the papers related to Pandey’s voluntary retirement obtained through RTI by Hemant Kumar.

According to the documents, the Nitish Kumar government circumvented steps to reinstate Pandey, overruling the mandatory approval from Rashtrapati Bhavan. His reinstatement after a gap of nine months was cited as a ‘rarest of rare case’. It was widely reported later that Pandey sought his job back after failing to get a BJP ticket to fight the Lok Sabha elections in the summer of 2009.

Another major report by Kumar claimed that in 2012, Pandey, then posted as IG Muzaffarpur Zone, connived with land mafia in order to level a dried lake opposite the IG’s official bungalow on Jhuran-Chhapra Road and convert this into several commercial plots to be sold at a premium. In a letter to the Bihar Lokayukta dated 5 March 2015, Kumar sought investigation into Pandey’s role in converting the lake into a commercial area.

Gupteshwar Pandey told Article 14 that he was mentally harassed by Hemant Kumar who had set out to “destroy” him. He claimed Kumar only used the RTI law for extortion. Asked if he had received any complaint of extortion against Kumar, Pandey conceded there was no formal complaint but said most people in Muzaffarpur “know his true colours”.

On the filled-in lake property, Pandey said it was another example of Hemant Kumar’s attempt to malign him. He said he had actually written to the district collector asking him to stop the illegal construction and investigate the matter.

Regarding his law exam, a departmental enquiry headed by the Director General (Training) absolved Pandey of any mischief, for lack of evidence. The probe revealed “no unethical involvement at my end”, Pandey said.

As for his voluntary retirement, he said the Bihar government had erred in not forwarding his application to the Central government. It had then rectified this mistake by reversing the retirement order, he said. “I cannot be held responsible for something that the state government did,” Pandey said.

In June 2016, in a letter to the Union Home Minister, Kumar sought clarifications on Pandey’s educational qualifications, stated on the official police website as MSc and MPhil. Kumar claimed this was inaccurate. Information he had gathered showed Pandey had completed his graduation in Sanskrit from Patna University.

Pandey calls this a clerical error while uploading information on the website and says he has never hidden the fact that he only completed his graduation in Sanskrit.

Receiving no response to his RTI query, Kumar raised the matter with the first appellate authority in March 2017, and with the second appellate authority in May 2017. Two years later, the case reached the Central Information Commissioner (CIC) in New Delhi who listed the case for hearing on 18 March 2019.

But a week before the CIC hearing, a case was filed against Kumar on 12 March 2019 on charges of cheating, criminal intimidation and several sections of the SC/ST Act. Kumar emailed the CIC expressing his inability to reach the hearing, but the CIC passed an ex-parte order saying the information on Pandey’s educational qualification cannot be shared - as per Section 8(1) (j) of the RTI Act, it was personal information and does not serve any larger public interest.

Kumar was arrested on 24 March and bailed out on 29 March, 2019. The complainant was a lawyer who claimed Kumar had reneged on a promise to conduct a workshop on RTI despite accepting a fee of Rs 50,000.

In a bizarre twist, the complainant, Ajay Kumar, in a video interview on 8 April 2019 to a local journalist in Vaishali, said he did not know Hemant Kumar against whom he had reportedly filed a case. “I have made this very clear to the thana in-charge, deputy superintendent and Muzaffarpur City Superintendent of Police when they came to take my statement that I do not know Hemant Kumar nor have I made any case against him . I have stated this to Gupteshwar Pandey as well,” said Ajay Kumar, who practises in Hajipur Court, Vaishali.

He said he had come to Sadar thana in Muzaffarpur to register a case regarding the kidnapping of his six-year-old daughter. He said in the video interview that he was too scared to speak up when he heard of the case against Kumar. He wanted to wait till his daughter’s recovery.

Another murky twist came six months later when Ajay Kumar’s wife filed a police complaint in September 2019 stating he had been kidnapped. The FIR did not name any person, but in her statement on 5 February 2020 before the magistrate under Section 164 of the Code of Criminal Procedure, 1973, she said she suspected Hemant Kumar, leading to Kumar’s arrest again.

Meanwhile, severe charges under POCSO, the Information Technology Act, 2000 and other sections of the IPC involving theft, house trespass and wrongful restraint, were additionally pressed against Kumar. In all the three cases -- cheating, kidnapping and POCSO -- Kumar was granted bail. But with other cases slapped against him, Kumar continues to languish in prison.

Continued Abuse Of Power

It was after Gupteshwar Pandey became DGP of Bihar on 31 January 2019 that cases against Hemant Kumar began to pile up, according to the latter’s family. The family claimed that Pandey had issued an open threat to Kumar in a WhatsApp group named ‘Cap Nishad Invitation 2’, whose 150 members included the district collector, district superintendent of police and other district administration officials.

Ab khule jang ka ailan is paagal ke khilaaf,” (an open war against this mad person) Gupteshwar Pandey reportedly posted on this group on 11 January, three weeks before assuming charge as DGP. Article 14 has seen the WhatsApp chats available with the family.

Ab iska jeevan jail me katega aur marega bhi jail me,” (Kumar will not only spend the rest of his life in jail, but will also die in jail), said Pandey in another post. Pandey was then DG (Training) with additional charge as DG of the Police Academy in Patna.

Continuing a nearly 2,000-word tirade on the WhatsApp group, Pandey said, “Bahut bardash kiya bhai. Ab insaan ko hijda ban kar bhi nahi jeena chahiye. Chalo bhai jang-e-elan,” he typed. (I have tolerated enough. Humans should not live like eunuchs. This is a declaration of war.)

The ten cases against Kumar in 2020 with charges pertaining to cheating, sending threats to kill with the use of firearms, forcing witnesses to withdraw from his earlier cases and more were all filed after Pandey took charge as DGP. In fact, eight of these ten cases were filed after Kumar was sent to jail on 5 March 2020.

Speaking to Article 14, the now retired Pandey denied that cases against Kumar were vendetta by him. “These texts in the group were sent by me when I could not tolerate the insults any more,” said Pandey. Hemant Kumar had been targeting him on social media, he said. “In the text, I made it clear I will not indulge in anything illegal but use existing cyber laws to challenge the insults he has piled on me,” said Pandey.

Pandey’s 34-year tenure as a Bihar IPS officer ended recently when the government waived his three-month notice period to enable him to contest the 2020 Assembly elections. Pandey applied for voluntary retirement on 22 September, and five days later joined the JDU. But the policeman-turned-politician didn’t eventually make the cut for a ticket.

Kumar’s father, also an accused in the last two cases filed in September and October, shunts between Muzaffarpur court and Patna High Court, a distance of 74 km, to file his bail applications. Of the 14 cases against Kumar, the family has managed to obtain bail in four cases, the expenses on lawyer fees and bail bonds piling up. “This is nothing else but to harass us,” said Singh, who was confident courts would see no merit in the cases.

Troubled by the mounting cases against his son, Kumar's father filed a criminal writ petition in Patna High Court against Gupteshwar Pandey in September this year.

Ashish Ranjan of National Campaign for People’s Right to Information in Araria in northern Bihar said chief minister Nitish Kumar’s election campaign announcement of continuing to fight the “three C’s – crime, corruption and communalism” rings hollow in the face of a rising tide of murders and harassment of RTI activists working to expose corruption.

“Sadly, despite its scale, corruption is not a priority for people at large. People have come to terms with it - no matter who is at the helm, corruption is here to stay,” said Ranjan.

(Malini Subramaniam is an independent journalist currently based in New Delhi.)