Editorial: Save RTI, Save Democracy
It is a Part of Citizens' Fight Against Injustice
Keeping people in the dark is the easiest way to disempower them. Secrecy and opaqueness work perfectly for those who have something to hide. An open flow of information, on the other hand, liberates minds and brings transparency to systems. And for that reason alone, there is always a tug of war between the mutually hostile devotees of secrecy and transparency in day-to-day governance. This, in nutshell, is the story of RTI in India. The moot question, however, is if secrecy is winning again.
Our experience has been that the politicians champion the idea of RTI when in the opposition but do everything to demolish it when they come to power. RTI defenders accept this as a fact of life but they get apprehensive when the denial of information becomes a rule rather than an exception by the omissions and commissions of successive governments. They see it as a sign of rising autocracy and the decline of public participation in governance. The founding fathers of the Indian Constitution provided enough powers to the elected executive to undertake good governance but they also gave fundamental rights to the people to lead a dignified life and to check the misuse of power when necessary.
The RTI Act is one such law that balances the dignity of citizens against the power of a few. Even though the Act came into existence over half a century after Independence, the underlying idea had been upheld by the Apex Court in many earlier cases. In the landmark State of UP Vs Raj Narain judgment, the court held in 1975 that secrecy could be applied only when there is a direct threat to public security. In SP Gupta Vs Union of India (1982), also known as the judge’s transfer case, the court ruled that disclosures were necessary because the right to information was implicit in the fundamental Right to Freedom of Speech and Expression under Article 19 of the Constitution.
Why should We Worry about RTI?
The RTI law is under fresh attack and the denial or delay of information is becoming the new norm. According to a study by RTI Assessment and Advocacy Group (Raag), only fewer than five percent of the first appeals have a chance of getting proper responses. This is another way to weaken the Act since the mechanism of appeals is crucial to its working. But a bigger irony is that nearly half of the RTI applications (49%) are filed because of the authorities’ failure to make proactive disclosures mandated under the Act. Clearly, the information in nearly half of all cases should have been in the public domain anyway, obviating the need for an RTI application to be filed in the first place.
The study also reveals that the applicants, particularly from the weaker sections of society, are routinely threatened or assaulted when their queries seek to expose wrongdoings of high ups. Over half of the urban applicants and nearly all of the rural applicants were, significantly, living below the poverty line. In fact, about 2% of the urban RTI applicants and nearly 90% of the rural applicants belonged to the poorest of poor sections of society. It is well-known that hundreds of RTI seekers have been threatened, assaulted, or killed year after year.
This, without doubt, calls for strengthening the RTI Act but the successive governments have done the opposite: they have tried to weaken it in the name of administrative efficiency. It is sad that even the courts have not gone out of the way to protect the spirit of the Act. Shailesh Gandhi, a former Central Information Commissioner, maintains that a majority of the Supreme Court judgments regarding disclosures under RTI have ended up expanding the scope to exemptions.
The Curious Case of the Top Court!
The Supreme Court itself came under RTI only in November 2019, when a Constitutional Bench ruled that it is a ‘public authority’ and the office of the CJI is a part and parcel of this institution. “Transparency and accountability should go hand in hand…,” the judgment famously held. On a cautionary note, the Bench also observed that the Act should not be allowed to be used against an individual’s privacy or as a tool of surveillance.
The judgment took years of circuitous legal wrangling. In a contentious case of denial of information in 2009, the CIC had directed the Supreme Court CPIO to furnish the information requested but the latter approached Delhi High Court which upheld the CIC’s ruling. The CPIO’s appeal to a full High Court Bench too was dismissed. This led to the unprecedented event of the executive side of the Supreme Court approaching its judicial side against the High Court’s ruling. It took the court over a decade to concede that it indeed was a public authority.
The Apex Court is yet to recognise, in a similar vein, that India’s all-powerful political parties too are ‘public authorities.’ A full bench of the CIC had earlier ruled that the big six political parties (BJP, Congress, NCP, BSP, CPI, and CPI-M) were public authorities under the RTI Act. The logic was that the political parties needed to be transparent since they worked for the public good controlling mighty governments at the Centre and in the states, and MPs and MLAs in Parliament and Assemblies. Besides, they routinely get government land, buildings, bungalows, and tax exemptions. The case is now pending for years.
New and Disturbing Trends
In 2019, the Right to Information Act 2005 was amended effectively diluting many of its provisions. The service terms of Information Commissioners and parity with the highest benchmarks like Election Commissioners and the Central Secretaries/ State Chief Secretaries were brought down to "as may be prescribed by the Central government." It is believed that the amendment would restrict the Act's capacity to hold the highest government functionaries to account. See it in the light of persistent denials of information and questionable appointments to the commissions, and you get the larger picture.
We, as citizens, must remember that the RTI law in India has not been gifted to us by anyone. It is a result of long and arduous mass movements and it should not be allowed to be eroded by vested interests. The spirit of openness brought to us by the RTI has strengthened India’s democratic ethos by boosting public participation, despite occasional setbacks. Any further damage to this spirit would deprive the common citizens of their voice and weaken this great nation's fight against inequality and injustices.
This issue of your journal refreshes the spirit of RTI. As always, your feedback is welcome. Please write in to us at commoncauseindia@gmail.com
Vipul Mudgal
Editor
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