The Right to Information Act, 2005, enacted with the aim of introducing transparency and accountability in governance, is completing its 15th year. An adage which applies here is: We can forgive a child who is afraid of the dark, but the real tragedy commences when the adults are afraid of light.
Fear of light is more frightening than that of darkness. In catena of cases, Supreme Court has held the right to information to be a fundamental right under Article 19 (1) (a) of the Constitution and even extended its application to the Chief Justice of India and his office. In retrospect, we have seen how over past years, this noble piece of legislation made people aware of their rights and prompted them to fight against injustice, corruption and irregularities in public departments. It is reported that over 3.02 crores RTI applications were filed with Central and state governments and as per statistics presented before the Supreme Court, 60 to 70 lac RTI applications are filed in the country every year.
However, there is no law without a flaw and like any other law, the RTI law is also not free from infirmities. While the authorities misinterpret legal provisions such as Section 8 to deny information, there are RTI applicants who misuse the right by raising frivolous queries. It is seen that authorities have now learnt the art of defeating the RTI mechanism by not providing complete information on false pretexts, such as ‘not available’ or ‘third party matter’ without updating themselves about the judicial interpretation. Most of the information is either not provided or provided in an incomplete fashion much after prescribed time frame.
First appellate authority being the same department often disregards the appeal and tries to somehow defend the denial of information with brazen insensitivity. The mechanism to act against violation of RTI Act, 2005 is very slow and weak. Those who have experience in filing appeals before the Central Information Commission against denial of information often say that RTI law is now losing its teeth. Though intended to protect the RTI law, it is seen that the CIC does not apply a judicial approach nor imposes deterrent measures to discourage authorities from defying the law. It often dismisses the appeal in a mechanical manner resulting in fast erosion of faith of people in the system. It is seen in most cases that it also does not impose penalties on defaulters even when its own orders are violated. According to the State Transparency Report 2019 released by Transparency International India (TII), 21.32 lakh appeals were filed with State and Central Information Commission since 2005 against denial of information. Backlog of appeals is enormous.
Disposal of appeals does not match the number of appeals being filed. It is disturbing that more than 50,000 appeals are reportedly pending in the court of State Information Commission in U.P. alone, and the backlog may take years to clear. Such instances have made a mockery of the system and the defaulting authorities enjoy the last laugh. If the information is not provided within reasonable time and the appeal to the CIC will be heard after two years, it will gradually prove to be the death-knell of the historic legislation. For this reason, most RTI applications are put to an end at the first appeal level as people fight shy of even filing an appeal before CIC. Different authorities have adopted different interpretations to the legal provisions particularly with reference to the exemptions listed under Section 8 of the Act. They do not update themselves with latest interpretation and deny information on flimsy grounds. The provision that information which cannot be denied to Parliament cannot be denied to an applicant has been completely overlooked. There are instances where authorities have forced the RTI applicants to deposit the charges even though the prescribed period of 30 days was over in violation to Section 7 (6) of the Act.
Instances have come to the light where authorities’ staff not only deny the information under RTI Act but also divulge the particulars such as names etc. of applicants clandestinely to those with a vested interest. It is estimated that about 200 RTI activists have been murdered due to staff having a nexus with mafia. Had the names and addresses of applicants been kept secret by the departments, their lives would have been saved. There is no provision in RTI Act, 2005 to keep the name and address of an RTI applicant secret and the nexus between department officials especially Police and the miscreants, defaulters and offenders have made RTI activists vulnerable to such murders. There appears a lack of will on the part of Government to introduce measures for the protection of RTI activists. There cannot be any reason for not maintaining secrecy of the name and address of the applicant. There is also no reason why an RTI application cannot be filed online. Unless some remedial provisions are introduced, such incidents are likely to continue.
Government had recently introduced amendment in RTI Act, 2005 by the Amendment Act 2019 (No. 24 of 2019) whereby the term of five years for Information Commissioner has been done away with. Now as per the amended provision, Information Commissioners shall be appointed for such term as may be prescribed by the Central Government. It means every information commissioner may have a different tenure as prescribed by government. In exercise of this Amendment Act, 2019, Government has reduced the term from five years to three years. Another amendment is with regard to salaries and allowances payable to and other terms and conditions of service of the Chief Information Commissioner and the Information Commissioner which shall be such as may be prescribed by the Central Government. Earlier, their salaries and allowances were at par with the Election Commissioners.
The logic given for this change is that Election Commission is a Constitutional body whereas CIC is only a statutory body. Thus terms and conditions with tenure as well as salaries and other allowances payable to Information Commissioners shall be subject to the discretion of Central Government. Likewise, salaries and allowances payable to the State Chief Information Commissioner and the State Information Commissioners shall be such as may be prescribed by the Central Government. It is clear that even in the case of States, the decision of Central Government shall prevail. Thus, the Government has acquired a sort of jurisdiction over the terms, conditions, tenure and salaries of the Information Commissioners at both Centre and State level. No other existing provision has been amended to ensure expeditious disposal of appeals with provisions for senior citizens, widows and handicapped persons who most deserve expeditious hearing. Nor has any provision been incorporated to ensure safety of RTI activists or for enhancing penalties for denial of information. At this juncture when the RTI Act is fast losing steam and is about to be left as a mere paper tiger, Government should have strengthened the law by some radical provisions to exercise checks on authorities who are trying to defeat the RTI mechanism and discourage applicants. The procedure for filing appeal in CIC is also not simplified. People fed up with the lacunae in the system often give up their efforts to get information. No attempt is visible to simplify the procedure and make the task of disposal of appeals prompt and smooth. Moreover, Government has acquired the power to even enhance the term of Information Commissioner. But in the absence of any criteria or rationality, such a power is open for misuse.
Now the Information Commissioners may remain subject to uncertainty in respect of their tenure and salaries. This is sure to diminish the powers, status, and independence of Information commissioners. The sole aim of the amendment Act 2019 thus remains only to dilute the powers and independence of the Information Commissioner. Gradually this will prove to be a major dent in the mechanism of RTI introduced 15 years ago. Once the Right to Information is held to be an essential attribute of Fundamental Right, no such attempt to intrude into the independence of Information Commissioner should have been made. In times to come, the provisions contained in RTI Amendment Act, 2019 shall be open for misuse by authorities at any given situation since no safeguards have been provided therein.
(The writer is an Advocate, Delhi High Court)