Transparency law has great promise but the powers that be want to blunt is edge
Shailesh Gandhi | May 11, 2015
The RTI Act has caught the imagination of people and the way it has spread is appreciated and admired around the world. A great change has come in India in the last decade in the power equation between the sovereign citizens and those in power. This change is just beginning and if we can sustain and strengthen it, our defective elective democracy can metamorphose into a truly participatory democracy within one or two decades. We have just begun this journey towards a meaningful Swaraj. I believe RTI and the media - visual, print and social - have been a fortunate, heady mix. They have the potential of actualising the promise of democracy.
However, there are also signs of regressive forces at work which could stymie these promises.
I will refer to the two biggest dangers to RTI.
1. Most established Institutions are unhappy with RTI. When the power equation changes between those with power and the ordinary citizen, resistance is to be expected. Everyone in power generally feels transparency is good for others, whereas they should be left to work effectively. It is implied that transparency is a hindrance to good governance.
The former prime minister, harried by the uncovering of various scams by RTI, said at a convention of the central information commission (CIC) in October 2012: “There are concerns about frivolous and vexatious use of the Act in demanding information the disclosure of which cannot possibly serve any public purpose.” The current prime minister has taken a pre-emptive action by not appointing a chief information commissioner at all to render it dysfunctional. The bureaucracy is also hardening its stand and in most cases has realised that the commissioners are not really committed to transparency.
This, coupled with the long wait at the commissions and their reluctance in imposing penalties, is slowly making it difficult to get sensitive information which could aid citizens in exposing structural shortcomings or corruption. A former chief Justice of India said in April 2012, “The RTI Act is a good law but there has to be a limit to it.” I am amazed at the suggestion that there should be a limit to RTI beyond what has been laid down in the law by parliament in terms of exemptions. Any interpretation beyond what is written in the law will be a violation of the citizen’s fundamental right to information.
We have travelled some distance away from the statement made by a seven-judge bench of the supreme court in the SP Gupta vs. president of India & others (AIR 1982 SC 149): “There can be little doubt that exposure to public gaze and scrutiny is one of the surest means of achieving a clean and healthy administration. It has been truly said that an open government is clean government and a powerful safeguard against political and administrative aberration and inefficiency.”
2. A greater danger comes from the selection of information commissioners as political patronage. Most have no predilection for transparency or work. Their orders are often biased against transparency and in many places a huge backlog is being built up as a consequence of their inability to cope. Consequently, a law which seeks to ensure giving information to citizens in 30 days on pain of penalty gets stuck for over a year at the commissions. Most of these commissioners do not work to deliver results in a time-bound manner and lose all moral authority to penalise public information officers (PIOs) who do not work in a time-bound manner. Commissioners are slowly working less and less. In the CIC six commissioners had disposed of 22,351 cases in 2011, whereas in 2014 seven commissioners disposed of only 16,006 cases!
Civil society and media are rightly critical of the government for not appointing the balance four commissioners, but at the current rate of disposal eleven commissioners will not dispose of over 25,000 cases a year. In 2014 CIC received 31,000 cases and currently has a pendency of over 38,000 cases. It is evident that at this languorous pace of working RTI will slowly become like the Consumer Act – mainly in existence for the commissioners. Citizens must wake up from their slumber and focus on getting commissioners who will dispose of over 6,000 cases each year and give clear signals that they will not tolerate tardiness from PIOs or commissioners.
Eternal vigilance is the price for democracy. We have a very useful tool to make our democracy meaningful and effective. It will work and grow if we struggle to ensure its health. We need to put pressure on various institutions so that they restrain from constricting our right, ensure a transparent process of selection for commissioners and adequate disposal of cases at the Commissions. If we are lazy this right will also putrefy.
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