The right to know

July 31, 2018


By: Wajahat Habibullah

Any dilution of the RTI through amendment will take away the spirit of the Act

A DEMOCRACY requires accountability, and accountability requires transparency,’ declared the then US President, Barack Obama, in his address to officials on assuming office in 2002. ’’In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open government. At the heart of that commitment is the idea that accountability is in the interest of the government and the citizenry alike,’’ he had said.

This strategic use of the RTI Act by the government is what our own Prime Minister urged citizens and his government  while delivering an innovative inaugural address at the annual National Convention organised to celebrate the 10th anniversary of the RTI Act in 2015. He urged ministries and departments to set up teams to analyse the information requested by the citizenry so as to serve as feedback for improving governance, instead of treating the RTI as simply an exercise in providing information. This is an astute reading of the law, which lays down that ‘Democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold governments and their instrumentalities accountable to the governed’.

Since inception, Information Commissions at the Central and the state level have directed the disclosure of information that - safeguarding the rights of the individual - the root of democratic polity, have revealed evidence of mismanagement of public funds, exposed poor decision-making and disclosed other shortcomings allowing public authorities to address loopholes in governance, which would otherwise have passed unnoticed from public, and hence official scrutiny. This is in keeping with the NDA government’s declared agenda of minimum government and maximum governance with zero tolerance to corruption. It also brings with it public participation in governance, thus securing another key element in the government’s stated objective of ‘Sabka saath sabka vikas’.

In bringing the present proposed amendments before Parliament, the  government has declared that this is an exercise in rationalisation in view of the Information Commissions being simply statutory authorities, whilst the Election Commission of India — with whose status in terms of service, salary and order of precedence the Central Information Commission has been equated in the Act — is a constitutional authority. Yet, the government has effectively revised the remuneration package payable to members of statutory tribunals and adjudicating authorities well before similar revision was made even to the salaries and allowances of judges of the Supreme Court and the High Courts who are constitutional functionaries. So the ‘rationalisation’ argument presented in the Statement of Objects and Reasons attached to the Amendment Bill hardly appears rational, let alone convincing.

Information Commissioner Sridhar Acharyulu, himself a lawyer of some eminence, has questioned: ‘If the Election Commission, which enforces a right under Article 324 (1), is a constitutional institution, how can the Information Commission, which enforces a fundamental right under 19(1)(a), be a non-constitutional body?’ In fact, this is not an issue of stature at all. The RTI Act is designed to ensure the independence of the Information Commissions through statutory remuneration, age limits and tenure so that they may work without pressure from the government, and be its watchdog on its own functionaries. Measures for ensuring operational and financial autonomy for the Information Commissions, although often criticised for being limited, were incorporated in the Act because the government and other public authorities would be the principal respondents in a majority of pleas for information access. Therefore, Parliament and civil society advocates agreed on the existing mechanism that permits the Information Commissions to perform their appointed functions without fear or favour. 

Yet, the proposed amendment has been proffered without any public consultation or even prior discussion with the principal stakeholders, thus evading what had become a publicly accepted principle by the government that any changes to such law would be after public scrutiny. Acharyulu recently urged a meeting of Information Commissioners to discuss ‘serious repercussions to the functioning of the commission and the effective implementation of the RTI Act’. The Amendment, if approved, will compromise what is a pivot of the RTI Act.

The RTI Act has been lauded across the world’s  democracies as being among the world’s most effective. Because the legal structure in India, for all its undoubted merits, was considered laborious, a quasi-judicial machinery was instituted to ensure ready access to information on demand by even the poorest, and in that category the Information Commissions have, undoubtedly, established the credentials of the RTI. Nevertheless, the Information Commissions, including the Central Information Commission, have been criticised for accumulation of pendency. But what must be understood is that this institution was conceived as a substitute for judicial proceedings which, in democracies such as the US and South Africa adjudicate access to information. The US experience has been speedy but hugely expensive. In South Africa disputes concerning the private sector are not readily heard. Pusillanimity of the Information Commissions will inevitably lead to increased pressure on the overburdened judiciary.

As the comments of a sitting Information Commissioner on the proposed amendment bear out, these amendments are not in the government’s interest. 

Anjali Bhardwaj of the National Campaign for Peoples’ Right to Information and Satark Nagrik Sanghatan have voiced the distress of civil society in an article: ‘In the face of overwhelming public and political opposition to the Bill, the government has deferred its introduction in Parliament for the moment. But whether the will of the people prevails and the RTI law, which safeguards peoples’ fundamental right to information, is immunised this time from legislative challenge remains to be seen.’ 

Given this context, it is clear that the strengthening of the Information Commissions is what is called for both in the government’s own interest and that of the public, not their emasculation. Read More