It has been one of the best transparency laws, brought in through citizen struggle
Shailesh Gandhi | October 14, 2020
Fifteen years back, the Right To Information (RTI) Act became operational on October 12, 2005. It was the auspicious day of Vijayadashmi. It appeared to herald a new evolution in Indian democracy. Citizens who had been advocating this law saw an opportunity of converting India’s defective elective democracy into a true participatory democracy that will give citizens true freedom.
The RTI movement, which had begun in Devdungri village in Rajasthan with Aruna Roy in the early 1990s, saw its dream being translated into one of the best transparency laws in the world.
In a series of judgments from 1975, the Supreme Court acknowledged that Article 19 (1)(a) of the Constitution guaranteed Right to Free Speech, Right to Publish and Right to Information as Fundamental Rights.
However, while the first two rights were recognised and their scope was increased over the years, the Right to Information was languishing in the absence of a proper method to give access to information to all citizens.
The RTI Act 2005 codified this right very well.
The draft of the Act had inputs from RTI activists and its provisions were well crafted. The law in its preamble asserted that democracy requires transparency in functioning, and it was necessary to contain corruption and hold governments accountable.
RTI was one of the best transparency laws
After recognising that there may be some practical constraints in achieving this, it harmonised the conflicting interests and gave India one of the best transparency laws in the world.
With this strong law, citizens started spreading and educating others in using the law. In the first five to seven years citizens realised the potential of this law which they could enforce.
They realised they could get accountability and act as vigilance monitors of their government. Many scams were uncovered and public servants began to treat the citizens, the rulers of the nation, with some respect. Individual citizens started feeling empowered. Citizens started getting ration cards, rations, income tax refunds, and many other services.
Above all citizens began to get accountability. The threat of penalties made public servants sensitive towards discharging their duty of providing information.
The simple law was easy to use and implement. There are thousands of RTI activists who teach, train and help others without any charges. This has led to the RTI becoming known and used across the nation.
A few crore RTI applications have been filed in the entire country during the past fifteen years. One of the weaknesses of the citizen movement has been the failure of the movement to get even 20 percent of women users. RTI activists must aim to ensure that at least 50 percent of the users are women.
However, there has been a resistance of those in power towards RTI.
Lip service towards transparency
While everyone pays lip service to transparency, it has been noticed that most people want others to be transparent but are reluctant to actually practise it themselves.
The corrupt detest it for obvious reasons and most of those who are honest take offence to being asked to share their decision making and actions because of arrogance.
Since most of the power centres of governance are covered by RTI, the resistance has transformed into a narrative painting RTI in dark colours. One of the first unfortunate, significant signals was the Supreme Court’s observation in 2011 in CBSE Vs. Aditya Bandopadhyay: “(RTI) Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration or to destroy the peace, tranquillity, and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty.”
How court observation was interpreted to not observe the law
This observation has been quoted many times with glee by officials, who are now seeing justification in not observing the law.
On the other hand, most Information Commissions, which had been created to act as the final appellate bodies, were not functioning satisfactorily.
Second appeals in the Commissions were languishing at times for years and they were generally very stingy in applying the penal provisions of the law against guilty public servants.
The governments and PIOs began to see that if they did not comply with the provisions of the law they would not have to face any serious consequences. In the worst case, the Commission may rule on disclosure. Though the Act does not permit any appeals beyond the Commission these decisions are often challenged in courts by masquerading as writs. Thus on important and current matters, it has become easy to deny the citizen’s fundamental rights.
In one blatant case, the PM Cares Fund has refused to give information on its functioning despite it being a public authority as per the RTI Act since it is controlled by the government through the PM and three ministers.
Information regarding purchases and various Covid-19 related matters is not being provided. In some cases, even details of expenditure by MLA funds are being blocked.
Major political parties have been declared public authorities by the Central Information Commission.
They have not challenged the decision in any court but in a display of illegal arrogance have refused to obey the statutory order. Commissioners and PIOs have denied a lot of information by disregarding the law and the constitution by grotesque misinterpretation.
Need to fight back
However, citizens are also building their strength to get the law implemented. They have realised the power which the Act gives them. Even during Covid-19 times many different groups are discussing and promoting RTI through virtual platforms.
A PIL has been filed in the Bombay High Court to ensure all hearings by virtual platforms and also to get directions to the Information Commissions to dispose of all cases before them in a time-bound manner. Citizens have used e-platforms with great enthusiasm and connections are being made across the nation.
These may lead to the evolution of a common set of issues and strengthening the citizen’s fundamental right. They have been pointing out that constriction of RTI could lead to constraints on Article 19 (1)(a) and thus on free speech and right to publish.
A strong narrative is being built of misuse of fundamental rights and I believe this must be opposed.
Shailesh Gandhi is a former Central Information Commissioner. Views are personal.
This article was originally published on Leaflet [https://www.theleaflet.in/we-must-fight-for-right-to-information/#]. It is reproduced here courtesy the author.
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