Fifteen years back on 12th October, 2005 the Right to Information (RTI) Act became operational. It was the auspicious day of Vijayadashmi and appeared to herald a new revolution in Indian democracy. Citizens who had been advocating for this law saw an opportunity of converting India’s defective elective democracy into a true participatory democracy: the swaraj that was promised to the citizens could finally be seen turning into reality. In a series of judgements from 1975, the Supreme Court acknowledged that Article 19 (1)(a) of the Constitution guaranteed the right to free speech, the right to publish and the right to information as fundamental rights. However, while the first two rights were recognised and their scope was increased over the years, the right to information was languishing in the absence of a proper method to give access to information to all citizens. The RTI Act 2005 codified this right very well.
RIGHT TO INFORMATION
RTI is an act of the parliament which sets out the rules and procedures regarding citizens’ right to information.
It replaced the former Freedom of Information Act, 2002.
Under the provisions of RTI Act, any citizen of India may request information from a “public authority” (a body of Government or “instrumentality of State”) which is required to reply expeditiously or within 30.
In case of the matter involving a petitioner’s life and liberty, the information has to be provided within 48 hours.
The Act also requires every public authority to computerize their records for wide dissemination and to proactively publish certain categories of information so that the citizens need minimum recourse to request for information formally.
GOVERNING OF RTI
The Right to information in India is governed by two major bodies:
Central Information Commission (CIC) – Chief Information commissioner who heads all the central departments and ministries- with their own public information officers (PIO)s. CICs are directly under the President of India.
State Information Commissions (SIC)– State Public Information Officers or SPIOs head over all the state department and ministries. The SPIO office is directly under the corresponding State Governor.
State and CIC are independent bodies and CIC has no jurisdiction over the SIC.
FUNDAMENTAL STATUS OF RTI
RTI is a fundamental right for every citizen of India.
Since RTI, is implicit in the Right to Freedom of Speech and Expression under Article 19 of the Indian Constitution, it is an implied fundamental right.
LIMITATION TO RTI
Information disclosure in India is restricted by the Official Secrets Act 1923 and various other special laws, which the new RTI Act relaxes.
RTI has proven to be very useful but is also counteracted by the Whistle Blowers Protection Act, 2011.
BUT ISN’T THIS MOVEMENT OF JUSTICE AND ACCESS TO TRANSPARENCY SUFFERING AT AN ALL ROUND LEVEL?
1. The commissions, either because of vacancies or pendency, are not adhering to timelines. There is no time-bound disclosure. With around 40,000 second appeals and complaints pending at the CIC and around two lakh all over the state ICs, the implementation of the RTI is disappointing.
2. There is concerted effort which is quite visible at all levels, to mention about one such instance is when demonetisation happened, RTI applications were routinely rejected by the Reserve Bank of India (RBI) on the specious ground that disclosing the information would “prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the state, relation with foreign state or lead to incitement of an offence” – all mentioned in Section 8 of the RTI Act, which deals with exemptions.When the CIC directed the RBI to provide the list of wilful loan defaulters, the RBI went to court and got a stay. Finally, on the directions of the Supreme Court, the RBI issued the list.
3. More recently, the Narendra Modi government has resolutely rejected applications seeking information about the controversial PM CARES Fund, set up to collect financial aid from citizens to fight the Covid-19 pandemic. On March 29, an RTI query was filed with the Prime Minister’s Office asking for copies of documents related to PM CARES including the trust deed, the details of the trustees, a copy of the trust’s tax exemption certificate, and other bylaws governing the trust. After a long wait the response came and the RTI request was rejected by the PMO on the grounds that “PM CARES FUND” is not a public authority under the ambit of the provision Sec 2(h) of the RTI Act, 2005. So what exactly is a Public Authority? Considering the definition given in the above provision it means “Any authority or body or institution or self government established or constituted by notification issued or order made by the appropriate government” Considering this definition we don’t see how it doesn’t qualify as a public authority under The RTI Act. the issue of whether the PM CARES Fund qualifies as a public authority under the RTI Act is immaterial insofar as this request for information was concerned as only the records held by the PMO were sought. If any files related to the PM CARES Fund are held by or under the control of the PMO, which is a public authority, it is duty bound to furnish them as per the provisions of the RTI Act. Helping the government in its endeavour to make the RTI movement ineffective is the higher judiciary, which has been resisting bringing in any kind of transparency in its own functioning.
4. Further lack of adequate infrastructure and shortage of staff in most of the government offices to deal with applications on RTI is another immediate cause of worry.
5. TAKING CUE FROM THE 2011 SC ORDER
In its judgment in the Central Board of Secondary Education versus Aditya Bandopadhyay on 9 August 2011, the Supreme Court observed that the RTI Act should not be “allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquillity and harmony among its citizens, Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritising `information furnishing’, at the cost of their normal and regular duties,” the bench further said. Many public information officers often cite these words to discourage RTI applicants.
WHAT DOES THE RIGHT TO INFORMATION (AMENDMENT) BILL, 2019 PROPOSE?
The Bill changes the terms and conditions of service of the CIC and Information Commissioners at the centre and in states. Table 1 below compares the provisions of the Act and the Bill.
Comparison of the provisions of the Right to Information Act, 2005 and the Right to Information (Amendment) Bill, 2019
1. Term – The Chief Information Commissioner (CIC) and Information Commissioners (ICs) (at the central and state level) will hold office for a term of five years. The Bill removes this provision and states that the central government will notify the term of office for the CIC and the ICs.
2. Quantum of Salary – The salary of the CIC and ICs (at the central level) will be equivalent to the salary paid to the Chief Election Commissioner and Election Commissioners, respectively. Similarly, the salary of the CIC and ICs (at the state level) will be equivalent to the salary paid to the Election Commissioners and the Chief Secretary to the state government, respectively. The Bill removes these provisions and states that the salaries, allowances, and other terms and conditions of service of the central and state CIC and ICs will be determined by the central government.
3. Deductions in Salary – The Act states that at the time of the appointment of the CIC and ICs (at the central and state level), if they are receiving pension or any other retirement benefits for previous government service, their salaries will be reduced by an amount equal to the pension. Previous government service includes service under: (i) the central government, (ii) state government, (iii) corporation established under a central or state law, and (iv) company owned or controlled by the central or state government. The Bill removes these provisions.
GOVERNMENT’S JUSTIFICATION IN BRINGING THE AMENDMENT TO THE ACT
The government claims that the equivalence drawn between the Election Commission of India and the Central & State Information Commissioners are flawed through these amendments. It attempts to streamline and reinforce the Act, and also bringing greater transparency. The Election Commission of India is a constitutional body established under Article 324 of the Constitution of India while on the other hand Central and State Information Commissioners are the statutory bodies established under the provisions of the RTI Act, 2005. Thus, their status needs to be rationalized accordingly. CIC has been given equal status as that of the Judge of the Supreme Court, but the judgments of the CIC can be challenged in the High Courts. These amendments are brought to strengthen the overall RTI structure
CURRENT SCENARIO
During the Covid-19 pandemic, only 10 of the 29 information commissions worked, and in these commissions also very less appeals were heard citing technological glitches. “Instead of providing respite during the pandemic, the transparency watchdogs in most states stopped functioning. The pandemic has further undermined one of the most important governance legislations,” said SR Wadwa, chairman, TII. The SNS report said that despite 15 years of the law, many information commissions are not very transparent about their functioning. “Many information commissions still provide very less information about their orders and appeals, making analysis of their work difficult,” said Anjali Bhardwaj of SNS, adding that the Bihar information commission does not even have a website.
Several studies on RTI done in the past decade shows that the transparency law has improved governance and checked petty corruption but its misuse has also increased manifold. Now, most public information officers are reluctant to give information to serial RTI applicants and publicists.
On this aspect, Padma awardee RTI activist Subhash Aggarwal said that in 15 years, RTI proved to be “curative” and “preventive” for corruption and improved governance but its misuse emerged as a major obstacle in its efficacy. “There is a need to increase RTI fees and seek identity documents, as some states such as Punjab and Odisha have done, to prevent the misuse. The government is willing to provide information to genuine RTI applicants,” he said. As the court had stated RTI has the potential to bring about good governance, which is an integral part of a vibrant democracy, it is like attaining good governance which is also one of the visions of the Constitution. But contrary to it the picture that is painted before us makes us believe like the sunshine law is about to loose it’s credibility and independence.
During the Covid-19 pandemic, only 10 of the 29 information commissions worked, and in these commissions also very few appeals were heard citing technological glitches. “Instead of providing respite during the pandemic, the transparency watchdogs in most states stopped functioning. The pandemic has further undermined one of the most important governance legislations,” said S.R. Wadwa, chairman, TII. The SNS report said that despite 15 years of the law, many information commissions are not very transparent about their functioning. “Many information commissions still provide very less information about their orders and appeals, making analysis of their work difficult,” said Anjali Bhardwaj of SNS, adding that the Bihar information commission does not even have a website.