RTI Is Gasping, Long Live RTI

Last October the Supreme Court of India was constrained to warn that RTI would become a dead letter if the Centre and States did not act in time. Yet, nothing seems to have changed.

Yogesh Vajpeyi
New Update

CIC HQ Delhi

As the cost of elections in India soars, political donations are becoming increasingly lucrative investments for the donors and the recipients. Both want to keep money flow under wraps.

It is debatable if the Supreme Court’s decision to invalidate the electoral bond scheme will help lift the veil of secrecy from political funding.

As per figures given in the last session of Parliament, the total value of electoral bonds purchased was ₹16,518 crores, a tiny fraction of what parties spent in a Lok Sabha election.

The implications of the landmark verdict, however, are far-reaching. Its key takeaway is the role of the money power on the sanctity of the electoral process and the role of the Right to Information in fostering participatory democracy.

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The Supreme Court weighed in favour of the right to information (RTI) under Article 19 (1) (a) of the Constitution against the right to privacy as an intrinsic part of another fundamental right to life and personal liberty.

The court summarily rejected the Solicitor General’s argument that a voter had no right to know the identities of the donor or of the recipient.

Earlier, a Central Information Commissioner (CIC) had also endorsed the government’s stand by saying that “there appears to be no larger public interest overriding the right of privacy of the donors and donees concerned”.

The two goals of the RTI— transparency and accountability—were uppermost in the judges’ minds when they held that the voters had an inherent right to know about who they were electing to rule in a participatory democracy.

This was not a right they were born with during centuries of feudal and colonial rule, but one they had fought for through protracted mass struggle under the catchy slogan of “Hamara Paisa — Hamara Hisab”.

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The RTI Act of 2005 became a sunshine legislation for transparency in government and public bodies with a robust mechanism to make information available to the public within a stipulated time frame.

It set up a Chief Information Commissioner (CIC) at the centre and State Information Commissioners at the States and gave them full autonomy.

Whenever there were implementation hiccups, resistance, or procrastination, the Supreme Court and the High Courts were quick to intervene. As a result, resort to RTI to unearth the 2-G scam.

The CIC faced its first major test after the Supreme Court’s landmark judgment in 2013, bringing political parties under the ambit of the RTI Act. Neither the ruling party nor the Opposition complied. The government contended that a CIC order cannot be used to seek a writ from the SC to bring political parties under the ambit of the RTI Act.

This signalled the beginning of a serious rift between the Information Commission and the political establishment. It started putting road blocks in the way the Information Commissioners worked. 

In the year 2019, an amendment was made to the RTI Act, 2005. The government said the original legislation was passed in a hurry without due consideration.  

It argued that the mandate of the Election Commission of India and Central and State Information Commissions were different, so there was no rationale for their status and service conditions being equal. 

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The RTI Amendment Act, 2019 empowered the Centre to fix the tenure and salaries of the information commissioners in both the Centre and the States. 

Though the amendment has been challenged in the Supreme Court, the Centre has gone ahead diluting the implementation of the right to information in dubious ways.

According to a ‘Report Card of Information Commissioners, 2022-23” by Satark Nagarik Sangathan, a citizens’ group working to promote transparency and accountability in government, four out of 29 state commissions were defunct and at least three were headless.  The Central Information Commission itself had only three commissioners with eight vacant posts.

Things have not changed since then despite repeated reminders from the Supreme Court. Last October it was constrained to warn that RTI would become a dead letter if the Centre and States did not act in time.

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The RTI Amendment Act of 1919 is under challenge in the Supreme Court for violation of Articles 14, 19 (1) (a) and 21 of the Constitution. 

Observing that it was a prima facie violation of fundamental rights, the court issued a notice to the government in January 2020 and then again in 2021 without any response so far. 

Meanwhile, the recently enacted Digital Personal Data Protection Act has further weakened the RTI regime. It remains to be seen if the country’s top court can resuscitate the right to know as it is gasping for breath.