The National Right to Information Act (RTI) became operational from 12 October 2005. This day was Dussehra, and those working in the RTI movement were very upbeat about it since it had taken many inputs from civil society in the drafting of the law. This was undoubtedly the best transparency law in the world and had been given shape by including inputs from citizens. This was actualising the promise of democracy to its rulers. It recognised that the government was not the ruler and was given the mandate to govern for five years.
Citizens Were the Rulers
In RTI, the default mode was that the rulers – the citizens – were the owners, hence all information with the government must be shared with them. There are only ten exceptions that have been defined clearly in the law. Except for these, all other information must be accessible to citizens. Section 4 of the Act puts the responsibility on public authorities to share most of the information with the citizens suo motu. Unfortunately, this has not been done by most public authorities. The law fixed responsibility on Public Information Officers (PIOs), who must be nominated in every administrative unit of a public authority. Failure to provide information to the ruler invites the penalty provision of the law on the PIO.
Article 19 (1)(a) of the Constitution guarantees ‘Freedom of Speech and expression’ as a fundamental right of citizens. Article 19(2) permits reasonable restrictions on this “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”. The Supreme Court, by a catena of landmark judgments, has ruled that this includes freedom to publish and right to information.
The Scope of 'Freedom to Publish'
The ambit of freedom of speech and freedom to publish has been widened over the years. Let us examine whether the scope of RTI has also been treated in a similar fashion.
While the freedom of speech and publishing was largely in the hands of citizens, the Right to Information required public authorities to provide the information held by them. The RTI Act codified this right very elegantly.
Information is power. Those who were holding the information – the public servants who had come to believe they are rulers – were unwilling to share it with the legitimate rulers,- the citizens. Parliament had drafted a fairly good law, and the usurpers of citizens rule - the public servants - were very uncomfortable with sharing information exposing their faults and corruption. In less than a year, the government drafted a set of amendments that would have weakened the Act. Widespread public protests stopped this move.
How an SC Judgment Misinterpreted the Act
Citizens spread the knowledge and understanding of the RTI Act with great enthusiasm. In the first few years, the PIOs were worried about the penal provisions of the Act and the personal responsibility thrust on them to abide by the law. In most cases, citizens began to realise the potential of using transparency to expose and shame recalcitrant public servants and get better governance. The Information Commissions, which were the final appellate authorities under the Act, ordered information to be provided and also imposed penalties. However, there was another factor that also started impacting this striving towards empowered citizens.
A majority of Information Commissioners were retired bureaucrats. They were not able to internalise the concept that the true rulers in a democracy are the citizens. Corrupt public servants felt threatened by the new, resurgent empowered citizens. Slowly, the opposition started getting stronger. RTI users started being branded as blackmailers and extortionists. The Act was also subjected to gross deprecation and misinterpretation by the adjudicators. It started being touted that information seekers must establish public interest when seeking information. This displayed lack of understanding of fundamental rights.
One Supreme Court judgment said: “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, tranquility 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.”
This statement was made without any evidence or facts.
Section 8 (1)(j) of the Act exempts from disclosure information that has no relationship to any public activity, or which would cause invasion of the privacy of an individual. To make it easy for PIOs and all adjudicators, it had a proviso: “Provided that the information, which cannot be denied to the Parliament or a State Legislature, shall not be denied to any person.”
Thus, it is expected that whoever denies information claiming exemption under Section 8 (1)(j) should make a subjective statement that he would deny the information to Parliament. This would be the case if privacy was being violated and this is in congruence with Article 19 (2), which permits reasonable restrictions on the exercise of Article 19 (1)(a), where ‘decency or morality’ could be violated.
The Supreme Court judgment in the Girish Deshpande case gave no legal reasoning but declared that all personal information is exempted, including that of public servants and their work. This appears to be contrary to the earlier judgments in ADR-PUCL and R Rajagopal. The Deshpande judgment has been considered a precedent in three other apex court judgments and is being used to deny information in a widespread manner across the country. Most information can be linked to a natural person. There are many such instances.
Another aspect that is leading to regression in RTI is the working of the Information Commissions. The delays in the Commissions are of one year to three years. This has reduced the efficacy of the adjudicatory body. Delays are converting ‘Right to Information’ into ‘Right to History’. This is due to the following reasons:
Anti-transparency mindset of a majority of the Commissioners. This is based on their belief that the political and bureaucratic set-up are the rulers.
Slow disposal of the Commissioners. The average disposal by a High Court judge is about 2,700 cases per year. Considering the simplicity of issues before a Commissioner, it should be possible to dispose of about three times this number. The average disposal of most commissioners is around 1,500 to 3,000.
Lack of any transparent process and criterion for selection. This is the problem with most Commissioners, regulators and Lokayuktas. These are our checks and balances of democracy. Most of these are selected by political patronage or bureaucratic networking. To this is added the sloppiness of governments in appointing Information Commissioners. Besides, there is almost no accountability.
What Happened to Delhi's Lokpal?
Citizens and media are quite lazy in getting accountability and having serious discussions on these matters.
Lakhs of citizens took to the streets demanding a Lokpal. A Lokpal has been in Delhi for over 30 months and nobody seems to know what it is doing.
Similarly, on the RTI Act, there needs to be an active discussion on the law, Information Commissions, judgments, etc. If citizens and media fulfil their roles, the RTI Act will take India towards transparency and better governance.
We got Independence from the British. We can certainly enforce our rights from our own government. If we do not act, Article 19(1)(a) itself may be in jeopardy.
(Shailesh Gandhi, Former Central Information Commissioner. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)