Oct 10, 2020 13:26 UTC
Oct 10, 2020 at 13:26 UTC
Making Sense of the RTI and its 2019 Amendment: A paradigm for ‘Swarth Rajya’
The emergence of numerous International conferences and legislations upon the people’s right to information, led the Indian parliament too to consider a promising codified law in 2005 to guarantee one’s Right to Know. The Right to Information is a quintessential part of right to think, express and the right to live with dignity. This right is not expressly mentioned in the Indian Constitution but can be derived from Article 19 and 21 respectively. The act has been one of the instruments of empowering citizens of India, as it furnishes a transparent and accountable government and its authorities regarding its decisions and policies.
However, with the passage of time, the dissemination of information to the public has been perceivably curtailed. The government has been more often than not, accused of fabricating the information rather than putting the true accounts straightforward into the public domain. The recent amendment of 2019 has therefore, strengthened the belief that the government is crippling the free flow of information and undermining the values and objectives of the Act. India, as the largest democracy must not forget that, the RTI has uncovered many corruption scandals like the 2G spectrum, coal mining, NPA in Banks, Commonwealth Games scam by Delhi government, Adarsh society scam etc. and has forced the government into being more responsive and accountable to its citizens. Right to Information is the singular most potent armament in the quiver of citizens against state opacity.
The repercussion of such drastic changes shall be immense. We already have the political parties excluded out of the scope of RTI. to specifying the term of office of the Chief and other information commissioners. With the new amendment the government is demonstratively setting up a model of selfish governance, as it is snatches away every opportunity of eliciting government information from the public. The trend of Indian parliament nowadays with regard to passing of amendments, have been significantly arbitrary in nature (with exceptions to few). Many instances in the recent times has stirred up people’s mind-set towards the government. To name a few, an RTI seeking PM Modi’s BA degree was rejected (only orally communicated of its validity), the RTI application seeking the documents which recommended the overnight demonetization which aimed to eradicate the black money was denied too. Such denial seeks its protection under the exemptions provided in the Act but it is debatable, whether the assistance of exemptions was sought to safeguard the national interest or to shield the public image of the political parties.
Right to Information (amendment) act 2019.
The RTI amendment bill sought for changes affecting the very essence of the Act. It essentially not only trampled the forethought with which the Act was enacted but also, denigrates the faith of common people. While the bill was being passed in both the Houses of Parliament, people were obnoxious with regard to the mind set with which it was passed. For many it was a “dark legislation” and a small minority (mainly the ruling government) considered it to be correction to the flawed legislation. Some key amendments proposed to the act can be summarised as:-
i) Earlier, in the 2005 act the term of office of central & state information commissioner and other information commissioners was five year or until attaining 65 years of age. But in the proposed bill, the term will be determined by the central government.
ii) In the proposed bill, the salary, allowances and terms of service of the central & state information commissioner and other information commissioners were to be prescribed by the central government. But earlier, the salary, terms of service and allowances were at par with an Election commissioner & a judge of Supreme court.
iii) The act previously mentioned that if the central & State information commissioner and other information commissioners at the time of their appointment to the office received any pension or government benefits, there would be deduction to their salary of the same amount. But in the newly amended act, these provisions have been removed.
So essentially, the amendments to Section 13, 16 and 27 are made regarding the tenures, allowances and conditions of service. The appropriate government has the power to make rules with regard to the terms, salaries and conditions of service of the chief and state information commissioner and other information commissioners. Therefore, the independency of the authorities under the RTI act has been compromised with alterations to its roots, thereby weakening the operation of the Act against the information which the government does not wants to disclose. These amendments were clearly done to control the information rendered to the public. One would argue that such amendments were deemed necessary to curb the excessive use of authority or to rectify the position given to central & state information commissioner and other information commissioners. However, in reality it’s the government which shall now be unilaterally deciding the fate of the RTI applications by controlling the authorities under the act.
Ambit of the RTI Act
There have been numerous speculations regarding the ambit of the RTI act. Many contentions were raised to inculcate political parties, the office of CJI, PM cares fund and other public authorities within the purview of the said act, but only a few succeeded in making it a reality. According to the definition of ‘public authorities’ mentioned under Section 2(h) of the RTI act, a public authority means any body or authority or institution of self government established or constituted by or under the constitution, by law of parliament or state legislature, by notification or order of appropriate government. Thus, a government undertaking, sectors, or NGOs, which are owned or substantially financed directly or indirectly by appropriate government are included within the meaning of public authorities.
Going by the bare reading of the definition it is easy to deduce what all authorities could be defined as public authorities. But the reality presents a different picture altogether. The government and various institutions have resisted tooth and nail to exclude some of its offices from the purview of RTI. The assertion has been largely put upon the exemption clause laid in Section 8 of the Act. The said Section 8 provides for the non-disclosure of information if the disclosure is affecting:
- the sovereignty, integrity, and strategic interests of India or
- is forbidden by court of law, or
- would breach privilege of parliament and State legislature’s, or
- impede any investigation, or
- threatens the life and liberty of a person.
It further allows the non-disclosure of information on trade secrets affecting the third party, cabinet records and documents, an invasion into privacy of others and any other information which has no public activity or interest.
Another exemption to right to information is laid in Section 9 which states that a Central or State Information Commissioner may deny a request for information if the information involves an infringement of copyright in a person other than a state. The prohibition laid in the Section 9 is absolute in nature so as to prevent the undue use of copyright which is not vested under the State.
It was a notable scenario when RTI activist Subash Chandra Agarwal filed an application of right to information in the Supreme Court to disclose the assets of judges. When it was denied, the activist approached the Central Information Commission which directed that the office of CJI holds the information regarding the assets of judges. By virtue of being a public authority, it was to disclose the information. The Supreme Court feeling aggrieved by the decision moved to the High court of Delhi in 2009 which upheld the decision of the central information commission. The decision was then reaffirmed by a larger bench of Delhi High court in 2010.
The decision was finally heard and disposed in 2016, when the supreme court five judge constitution bench upheld the Delhi high court verdict that the office of CJI comes under the purview of the RTI act. The constitution bench held that: “The Supreme Court of India, which is a ‘public authority’, would necessarily include the office of the Chief Justice of India and the judges in view of Article 124 of the Constitution. The office of the Chief Justice or for that matter the judges is not separate from the Supreme Court and is part and parcel of the Supreme Court as a body, authority, and institution. The Chief Justice and the Supreme Court are not two distinct and separate ‘public authorities’, albeit the latter is a ‘public authority’ and the Chief Justice and the judges together form and constitute the ‘public authority’, that is, the Supreme Court of India. The Chief Justice of India is the head of the institution and neither he nor his office is a separate public authority“. [MAA1]
The recent decision of the Hon’ble Supreme Court in the matter of Central Public Information Officer, Supreme Court of India V. Subash Chandra Agarwal , made it more coherent that the office of CJI falls under the RTI. It was observed that “Failure to bring about accountability reforms would erode trust in the courts’ impartiality, harming core judicial functions. It also harms the broader accountability function that the judiciary is entrusted with in democratic systems including upholding citizens’ rights and sanctioning representatives of other branches when they act in contravention of the law. Transparency and the right to information are crucially linked to the rule of law itself. Openness and transparency in functioning would better secure the independence of the judiciary by placing any attempt made to influence or compromise the independence of the judiciary in the public domain. Further, the citizens have a legitimate and constitutional Right to seek information about the details of any such attempt. Thus, disclosure, and not secrecy, enhances the independence of the judiciary. It also noted that whether or not information is subject to public disclosure must be decided on a case-by-case basis, by weighing competing public interest claims.”. The Court also lucidly explained that the CJI has no fiduciary relationship with the other judges and by that virtue it should not be withholding any information with serves larger public interest. The stress was laid upon the case of Central Board of Secondary Education & Anr V. Aditya Bandopadhyay wherein it was held that ” the duty of a public servant is not to act for the benefit of another public servant, that is, the Chief Justice and other functionaries are meant to discharge their constitutional duties and not act as a fiduciary of anyone, except the people. In arguendo, even if there exists a fiduciary relationship among the functionaries, disclosure can be made if it serves the larger public interest. Additionally, candour and confidentiality are not heads of exemption under the RTI Act and, therefore, cannot be invoked as exemptions in this case”. Thereby, the office of the CJI falls under the purview of the RTI act and it is undebatable that the Supreme Court of India is a ‘public authority’, as defined under section 2(h) and has been established, constituted by or under the Constitution of India and the CJI is a competent authority as per section 2 (e)(ii) of the act.
The dispute also arose with regard to political parties being a public authority under the Act. The decision in Subash Chandra Agarwal v. Parliament of India by the Central Information Commission was that the political parties do come within Section 2 (h) of the Act. It is also contended that the political parties register themselves under the Representation of people act 1951 thereby making it answerable to the public. Also, Section 29C of Representation of people act lays that donations received by political parties needs to be disclosed to the Election Commission, thus in turn shows the responsibility of a public body for being transparent and accountable as it is about representation of people.
The judgement of Supreme Court in the matter of RBI VS Jayantilal Mistry was that the RBI cannot deny information on the context that there is a fiduciary relationship with other banks and it is exempted to disclose such under Section 8 of the act. The RBI is a statutory body set up for the betterment and well-being of the general public who are the depositors. The exemption sought under the act should be seen whether the disclosure of information is detrimental to the economy of India. The information sought was regarding irregularities and inspection report of banks and therefore, it did not affect the country in any manner laid under Section 8 or 9 of the act. Thus, the RBI was bound to release information sought under the act.
The not so well received controversial judgement by the Supreme Court, before the Corona virus pandemic, was criticized to cause a full fledged encroachment of Article 19(1)(a). The case of Chief information Commissioner Vs High Court of Gujarat (March 4, 2020) upheld the Rule 151 of Gujarat HC which embodies that if a party deems to seek copies of judicial proceedings of a case through an RTI then it had to be supported with an affidavit stating the reasons behind it. The pronouncement had a chilling impact upon Article 19(1)(a) because it takes away the right to obtain information as a third party. It also impedes Section 6(2) of the RTI act which says that no reasons are to be provided for obtaining information under the RTI Act. The court decided the case with a flawed legal reasoning because it overlooked the aspect of reading a status as a whole. The court only considered the view point that HC has power to make rules under Article 225 of the constitution thereby, the rules are not inconsistent with the RTI act. But, the RTI Act itself contains a provision Section 22, which allows it to override any other law in force which is inconsistent with the act. Also, the fact that, Article 225 starts with “Subject to the provisions of this constitution and to the provisions of any law made by appropriate legislature by virtue of this constitution“. Therefore, one can rightly gather that making of HC rules are subject to provisions of law and thereby, the non-obstante clause in Section 22 of RTI supersedes the HC rules. Thus, the Supreme Court erred in dealing with the case and did not consider into account various provisions of law.
Recently, an application to disclose the donations made to the PM cares fund was denied. The assertion of the government was that the application sought various requests, the information of which cannot be provided at one filing. To be clear, it said that bundle of requests cannot be granted information as for each request of information a fee of Rs. 10 was to be paid.
The Supreme Court while hearing the petition filed by a NGO, which asked court to direct the transfer of PM cares fund to the NDRF (National Disaster Response Fund) refused to direct the central government to do so on the ground that there was no need for such a step because the government had already set up the Fund to dedicate to the Coronavirus Pandemic. Many regarded the decision of the court as unfortunate as it refused transparency to the collection of the fund. Had the fund been transferred to the NDRF, then it would have been easily accessible by the RTI act as NDRF is set up via a statute called National Disaster Management Act.
RTI: Respite for one and a scourge for another
Right to Information is not only a tool by which an individual obtains information regarding government functioning but it objectively operates as a valve of ‘checks and balances’ for a transparent and accountable governance. Taking the constitutional perspective, RTI is a fundamental right and pre-requisite to the exercise of Freedom of Speech and Expression under Article 19(1)(a) of the Indian Constitution. Therefore, it is an essential right of the responsible citizens to keep an eye on government policy and decisions. With the empowerment offered by the Act, people could scrutinize the records and unfold various corrupt and arbitrary decisions of the government. The Hon’ble Supreme Court through numerous judgements has ascertained the position that Right To Information is a constitutional right.
In the landmark case State of Uttar Pradesh vs Raj Narain, Justice Mathew righteously concluded that a welfare government like India should be responsible for their own conduct. The people are entitled to know every particular of government transactions and their right to know is derived from freedom of speech and expression.
In another landmark judgment in L.K. Koolwal Vs State of Rajasthan, the High court held that right to speech and expression stipulated under Article 19 inherits the right to information as without information, freedom of speech and expression cannot be utilised by the citizens. A right comes with a duty and vice-versa. Thus, citizens have a right as well as a duty bestowed upon them to carry out their roles in consonance with the act. The quest to know about the government’s doing is not illegal but responsible because in the absence of information we jump to wrong conclusions.
The tussle over the scope and reach of the RTI has been immense and is visible in every government department. For instance, the non agreement between M. S. Acharyulu and R.K. Mathur over constitution of a larger bench, for hearing complaints against political parties. The reasoning of order passed by Mr. Acharyulu over disclosure of wilful defaulters to the RBI was another antithetical approach by Mr. Mathur. This reflects to the odious nature of the Chief information commissioner Mr. Mathur, who supported the violation of the RTI act by the RBI.
Another, stance can be deduced from the decision of the Delhi high court in the case of Registrar, Supreme Court of India Vs R.S Mishra in which the court observed that RTI act does prevail over the Supreme court rules. This judgement is not fundamental to the statement of objectives laid down in the act. The Act clearly stipulates that the information sought should not be an encroachment upon the Section 8 of the Act but in the decision of the High court no such emphasis was laid.
As we all know that RTI is a natural right flowing from the very existential core of democracy. The citizens are empowered to obtain information which they regard as necessary to be construed reasonably. The question once raised in Delhi High court regarding the Ministers of union and state governments, that whether their offices fell under the ambit of the Act. The Delhi high court, in the case of Union of India & Anr. Vs. Central information Commission & Anr. held that the Ministers do not fall under the definition of public authorities. This decision was unfortunate as the Ministers are elected by the people of India and hold a public office thereby should be made liable to render information about the issues pertaining to the legality of their decisions and personal assets. It is a very well established fact that the RTI Act of India served as a revolutionary legislation and is considered at International platform, as the most potent RTI legislation to keep a check on government activities. However, the reputation has suffered a severe blow after the latest 2019 amendment to the Act.
Another significant attention should be paid with regard to the RTI act 2005. When the RTI (amendment) bill 2004 was into debate for its implementation, a question that arose was that whether the status of chief information commissioner and Information commissioners be kept at par with the secretaries & joint secretaries of the government. It was placed before a parliamentary committee in 2004 which consisted of majority ruling party of the NDA government, which then ruled that for the sake of autonomy and transparency the status of chief information commissioner and other information commissioners should be on equal footing with the Election commissioner. It is an irony that when the NDA government was in opposition it demanded a strong legislation but when it is in power it demands for amendments, considering it as a flawed legislation.
Pragmatic approach for the legislation
The RTI Amendment bill 2019 was introduced by Jitendra Singh, Department of Personnel, Public Grievances, and Pension in the House of Parliament putting forward the reason that it would not hamper the independence of the Act. It further referred that the previous Act equated the status of Information Commissioners with the Election commissioners which was not evenly justified in the act. As a matter of fact, the Election Commissioner is at par with a Judge of a Supreme Court. The major contention is that the decision of Central Information Commission can be challenged in the High Court or Supreme Court. It raises eyebrows regarding the setting up of a commission that the Central information Commission(CIC) is a statutory body and the Election Commission is a constitutional body established under Article 324 of the constitution. So, in generality it would supersede the CIC.
But this stance has been countered with the reasoning that other statutory authorities like National Green Tribunal, National Human Rights Commission and Lokpal and Lokayukta decisions can be challenged in the High Court and Supreme Court. The authorities are statutory and therefore are subject to scrutiny. There is no provision in any Act or legislation or statute which states that the decision and appeal cannot be challenged in the High and Supreme Court. The Supreme Court is the ultimate protector of the guardian of the constitution which can allow appeal from any aggrieved decision. The legality should revolve around the genuineness of the act whether or not it speaks about maintaining the essence and openness.
The RTI (amendment) Act, 2019 is potentially aimed to reduce the government’s responsibility and transparency. The appropriation of tenures, salaries, conditions of service is a full-fledged attack on the independent operation of the legislation. The impediment created due to the narrow approach is acting as a hindrance in the achievement of transparency of the act. The objects of the act focus upon the delivery of a true accounts and correct information. This act is highly beneficial for the Panchayat level governance as the involvement of people is immense and significantly larger in proportion. The amended act could have inserted much more accountable provisions rather than curtailing and beholding the appropriate authorities of the act. One must ponder over to increase its implementation over various other public authorities which have been responsible in decision making, to elicit information about themselves rather than sheltering under the act. This act is a revolutionary legislation bestowing the power to question the validity of government decisions by filing a minimal rate. Also, it should focus upon decentralisation of power and promoting protection of person availing information and accountability at every level of government to strengthen the public faith.
 AIR 2019; CA 10044/2010
 AIR 2011 8 SCC 497
 2013 W.P. (C) 3491/2013
 AIR 2016 SC 1 , AIR 2016 3 SCC 525
 S.L.P. No. 5840 of 2015
 (1975) 4 SCC 428
 AIR 1988 Raj 2
 AIR 2017 W.P(C) 3530/ 2011
 AIR 2017 W.P(C) 5636/2016