The real Swaraj will come not by the acquisition of authority by a few but by the acquisition of capacity by all to resist authority when abused-M. K. Gandhi[1]

The enactment of the Right to Information Act 2005 has been viewed by many political commentators and activists as a pathbreaking event in the annals of Independent Indian history. The law was passed by the parliament on 15th June, 2005 and it came into force on 12th October, 2005. The act in a way revolutionised the way in which common Indians viewed democracy. It came with a hope to usher in an era of transparency in the governance systems which would chase away the demons of corruption, inefficiency and misuse of power that had plagued our systems.

Governments anywhere around the world generally tend to be secretive in its operations. They love opaqueness and secrecy (in governance), and despise transparency and vigilance. Their dislike for these ideals stems from the fact that these ideals envisage to promote a culture of accountability. Arbitrary acts of power, corruption and other misuses of power would not be able to take place in such a culture.

On the other hand citizens demand that governance should always be transparent and the governments should be accountable for their actions. Theses polar opposite beliefs that the people in government and the citizens possess make a conflict regarding the functioning of the government inevitable.

Legislations like the RTI act of 2005 act a judge of these views and tires to empower the voices of the citizens and bring in accountability, transparency and vigilance in the functioning of the government.

Background To The Problems
The aims as well as the provisions of the act are very idealistic, if implemented in its full letter and spirit these provisions can chase out most of the inefficiencies that continue to plague our governance systems. Despite having a laundry list of positives, the RTI Act does have some shortcomings and lacunas.

The problems faced by the RTI Act are

1. A vast number of authorities that ought to be enlisted under ‘Public Authority’ do not come under the definition of the word specified in the act.
2. There is a lack of a monitoring mechanism or an authority that monitors the implementation of the provisions of the act.
3. Section 4(2) of the act requires the public authorities to suo motu provide as much information to the public at regular periods of time so that public has minimum incentive to invoke the act. This provision is seldom found to be followed by public authorities of the central and the state governments.
4. There is always a large backlog of second appeals at the State Information Commission level.
5. Building public awareness of a law helps a lot to better to implement it. Citizens have a primary role in implementation of the act but governments do not take necessary measures to popularise it.
6. The air of secretiveness that pervades the Indian bureaucracy acts as the primary hinderance in the complete implementation of the act.

Objectives Of The Project
This project attempts to:

1. To analyse how do the new amendments brought in the RTI Act 2005, affect its potency
2. To examine the position of Transparency historically as well as in current times in India.
3. To understand the problems as well as their causes that the RTI Act faces.

History Of The Enactment Of The Act
The movement for securing the right to information to citizens throughout the world has been very long. Indeed, there have been many incidents during the course of history that have positively leveraged the movement towards the cause of the citizens in their own way, but it is humbly contended that none of those incidents could match the impetus that passing of the Charter of Human Rights provided to the movement.

The passing of the Charter of Human Rights by the United Nations which secured to everyone the right to seek and receive information and ideas through any media and regardless of frontiers[2] was among the first enactments of its kind which empowered the cause of the citizen’s right to get information.

The adoption of the U.N. charter was followed by the International Covenant on Civil and Political Rights of 1966 proclaiming that everyone shall have the right to hold opinion without interference. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice[3].

These enactments which provided a new emphasis to a citizen’s right to information lead to the enactment of numerous legislations protecting the said right in different countries. U.S.A led this trend of enacting laws securing a citizen’s right to information by enacting the Freedom of Information Act in 1966[4], which established a right to information held by the citizens of the United States as against the federal government agencies. The Freedom of Information Act became a model for all the other countries to emulate. Countries like Australia, Canada and New Zealand adopted similar laws in the early 1980s.

The spate of enacting right to information laws was not limited to the 1980s, it continued in the subsequent decade too. The enthusiasm of countries to enact right to information related laws exploded in the subsequent century i.e., the 21st century. Every democratic country whether Japan or Mexico, committed to democratic governance enacted such laws. India was no aberration to this trend.

The birth of this act in India can be attributed to the international trend of enacting laws protecting the right to information, the judicial pronouncements recognising the right and movements for demanding the right in India carried out by common citizens.

The Indian Constitution through Article 19(1)(a) guarantees to all the citizens the freedom of speech and expression. The enjoyment of this right is only possible if the citizens intending to exercise the right are aware of the authentic facts related to the issue which they would talk about.

The role of authentic information or facts and figures becomes essential, so much so that the exercise of Article 19(1)(a) is futile without it being strongly backed by authentic information. Authentic information is a must. Therefore, the right to information becomes a constitutional right being an aspect of right to free speech and expression[5]. The Supreme court in Mr. Kulwal v. Jaipur Municipal Corp.[6] has held that the right to information is implicit in the right to freedom of speech and expression provided under Article 19(1)(a) of the Indian constitution.

Through this judgement we can observe that the apex court has also given approval to the fact that since the exercise of Article19(1)(a) is premised upon authentic information therefore the right to information is an inherent component or an inalienable component of the right to freedom of speech and expression. The Supreme Court in subsequent judgements has reiterated its belief. In the landmark judgement of the Maneka Gandhi V. U.O.I. [7]case the court held that:
the freedom of speech and expression has no geographical limitations and it carries with it the right of a citizen to gather information and to exchange thought with others not only in India, but abroad too.

The first movement raising the citizen’s cause of protecting the right to information in India was led by the Mazdoor Kisan Shakti Sanghathan (MKSS). The MKSS initiated their efforts to leverage governments so that they enact a law like the RTI Act 2005 in Rajasthan during the 1990s.

Due to the tireless efforts by the members of the MKSS, the movement gained popular support. Respecting the popular sentiment many state governments enacted RTI like laws pertaining to their respective states. Tamil Nadu became the first state to enact a right to information law, in 1997. Subsequently many states emulated the Tamil Nadu model and enacted laws protecting a citizen’s right to information- Goa in 1997, Rajasthan in 2000, Karnataka in 2000, Delhi in 2001 and Maharashtra in 2002 are some of the examples.

So, the enactment of the RTI Act can be attributed to all the events that have been mentioned in the preceding discussions right from the adoption of the UN Charter of Human Rights to the various judicial pronouncements and the popular movements in favour of enacting a law protecting a citizen’s right to information.

The Aims Of The RTI Act 2005

1. To promote transparency and accountability in the functioning of all ‘Public Authorities[8]’ as has been specified under the act
2. To set up a workable system which can provide citizens access to information under the control of ‘Public Authorities’.
3. To enhance the participation of common citizens in the functioning of Indian democracy.
4. To provide citizens with a tool through which they are empowered and which in turn helps them to make governments accountable.
5. To contain the menace of corruption, inefficiency in governance systems and misuse of power so that public authorities function for the welfare of citizens rather than for a few corrupt people.

The Brief Provisions Of The Act

1. The act binds the public authorities to provide every citizen access to the information under their control
2. The information that comes under the purview of the act has a very large scope. It includes- documents, records, circulars, press releases, contracts etc. This liberty to demand information granted to the citizens is not absolute, it comes with a few caveats.
3. The Act applies to all the public authorities whether controlled by the State or Central Government.
4. Private bodies also come under the purview of the act. The right to information can be invoked against private bodies so far as the information related to such bodies can be accessed by a Public Authority.
5. The information which has been demanded by a citizen from a public authority has to be provided within thirty days.
6. The act provides redressal mechanisms to citizens. If a public authority does not provide the required information demanded by a citizen, he/she has the power to head to the appellate authority to demand justice.
7. The citizen can file a second appeal under the central information commission or state information commission. These commissions act as a supervising authority to whom every public authority under its jurisdiction is bound to submit an annual report of information sought and furnished.
8. The second schedule of the act excludes some organizations from its jurisdiction, they are- Central Economic Intelligence Bureau, Intelligence Agencies etc.

Any person may use the act to demand information by submitting a written request to the Public Information Officer. It is the duty of the PIO to provide information to the citizens of India who invoke the RTI Act. Section 26 of the act requires the central as well as the state government of the republic of India to initiate measures to:

1. Conduct educational programmes to increase the level of awareness about the act in the general public especially in the disadvantaged groups
2. Encourage all the public authorities to organise such programmes.
3. Disseminate authentic information in the public in general at a regular basis etc.

Causes Of The Problems That The RTI Act Faces

The organisations that are not under the definition of Public Authority
There is a dissatisfaction among the RTI activists and enthusiasts that the act does not cover many originations that should be considered under the definition of public authority like- the CBI, the NIA, the IB etc. The former Vice President of India Mr. Hamid Ansari also believes in this contention. While presenting the valedictorian address at the 4th Annual Convention of the Central Information Commission on 13th October, 2009 the former Vice President stated a vast number of organizations that should have been covered under the definition of public authority for being owned, controlled or substantially financed, directly or indirectly, by funds provided by the appropriate government, have not come forward proactively to be covered by the Act. They await a case-by-case ruling by the Central or State Information Commissions to be so considered and hence covered by the Act. Currently, neither the Information Commissions nor the governments have ensured that all bodies that are covered by the definition of ‘public authority’ undertake action as listed in Chapter II of the Act.[9]
This inertia on the part of the government to grant these originations the status of public authority could be attributed to it being intimidated by the provisions of the act. The primary aim of the act is to promote transparency and vigilance; these ideals are seldom appreciated by governments. The originations under question are frequently reported to be misused by governments. If these authorities come under the purview of the act it would make their misuse a very tough job. Hence these authorities lie outside the definition of public authority.

Absence of a monitoring authority:
The absence of a monitoring authority or mechanism that monitors the implementation of the act does not bind the public authorities to stand good on the provisions of the act. It is the primary reason for the public authorities to not implement the provisions provided in section 4(2) of the act. The creation of such an authority with powers to penalise inaction could help in better implementation of the provisions of the act. This problem could also be attributed to the attitude of governments against transparency and vigilance.

Lack of public awareness:
Section 26 of the Act envisages that the central as well as the state government should conduct educational programmes to increase the level of awareness about the act in the general public especially in the disadvantaged groups. The utility of the act is premised upon the usage of it by the citizens. If the citizens due to some reason discontinue the usage of the act it would become obsolete. The best way to ensure that the act is being invoked and utilized by the common public is to find ways to educate people about the act. Educational programmes should be designed and shared with the public at large so that they become aware about their rights and try to have it enforced when violated.

The funding provided by the government for carrying out this exercise is considered to be very meagre. The awareness about the act has definitely gone up since its enactment in 2005 but it has still not reached the optimal levels befitting of a vibrant democracy that India is. Lack of funds, and governments’ distaste for transparency and vigilance are the primary causes of it.

Culture in the bureaucracy
It seems that the Indian bureaucracy has still to come to terms with the fact that India is no longer a colony of Britain. This is contended due to the fact that though being an organisation functioning under a democracy the attitude of the Indian bureaucracy mirrors the attitude of a bureaucracy functioning under a tyrannical government. The culture of imperiousness and secretiveness which were the hallmark of the colonial period still plague our bureaucracy.

There are many reported instances where the invoking of the RTI Act by a citizen was met with hostility by the bureaucrats under question. Many RTI activists who try to demand access to information which exposes the corruption in the bureaucracy frequently receive threats of serious injury to life and property. These attitudes need to change so that the RTI Act could fulfil its aims and objectives in its entirety.

Amendments
The Right to Information Amendment Bill 2019[10] was introduced in the Lok Sabha on 19th July 2019, it was passed by the Lok Sabha and the Rajya Sabha on 22nd July 2019 and 25th July 2019 respectively. The amendments brought to the act change sections 13 and 16 of the Right to Information 2005.

The amendments are:

1. The section 13 of the RTI Act 2005 sets the terms of the CICs and ICs at five years or until the age of 65 years. The amendment states that the term of office of these officials will be for such term as may be prescribed by the Central Government. The section also concerns itself with the salaries of the CICs and the ICs. It states that the salaries, allowances and other terms of service of the CICs as well as the ICs shall be same as that of the Chief Election Commissioner. The amendment states that the salaries, allowances and other terms of service of these officials shall be such as may be prescribed by the Central Government
    
2. The section 16 of the RTI Act 2005 sets the terms for state-level CICs and ICs at five years or until the age of 65 years. The amendment states that the term of office of these officials will be for such term as may be prescribed by the Central Government. The section also concerns itself with the salaries of the state-level CICs and the ICs. It states that the salaries, allowances and other terms of service of the CICs as the same as that of an Election Commissioner and that of state-level ICs shall be same as that of the Chief Secretary of the State Government. The amendment states that the salaries and other terms of service of these officials shall be such as may be prescribed by the Central Government.

The amendments empower the central government to tweak the term of office and salaries of CICs, SCICs and the ICs at its own sweet will. These changes that have been brought in by the centre adversely affect the independence of these officials. Since the government is at liberty to decide till what period should a CIC or SCIC or IC serve as well as the salary that they receive it would incentivise these officials to be stooges of the government rather than being the foot soldiers for a citizen’s right to information.

They would be forced to withhold information against the political interests of the powers that be, out of the fear of being penalised in terms of the salary deduction or term of office deduction. The amendment also does not specify a fixed salary or term of office for these officials. Due to the terms of the amendment the position of CIC, SCIC and IC will assume a nominal nature where people holding these positions will act on the whims and fancies of the government of the day rather for the welfare of the citizens. The amendments that have been brought in have serious implications on vigilance and sabotages the foundation of the RTI Act 2005 i.e., transparency.

Instances Where Rti Played A Pivotal Role In Protecting Transparency

The Right to Information Act of 2005 has been one of the most influential acts in terms of unearthing scams and acting as a sword of vigilance in the hands of the citizens. It has been instrumental in unearthing some of the biggest scams and misuses of power in the annals of Indian History like:

1. Adarsh Society Scam
   The scam was exposed by RTI activists Simarpreet Singh and Yogacharya Anandji. The building located in the Mumbai’s posh residential area Colaba was initially conceived to house the war heroes and widows of the 199 Kargil War. Misusing the public authority, the building was converted to the Adarsh Housing Society housing politicians, bureaucrats and top military officers. This expose led to the resignation of the then chief minister of Maharashtra Ashok Chavan.
2. 2G Scam
   The 2G scam or the telecom sector scandal was exposed by RTI activist Subhash Chandra Aggarwal. The scandal revolved around the auctioning of the 2G spectrum. Top ministers of the UPA regime had conspired to undercharge some mobile phone companies while allocating the frequencies in exchange for a bribe. The estimated amount of the scandal was about Rs. 1.76 lakh crore.
    
3. Demonetisation announced without the approval of the RBI
   This misuse of power was exposed by the RTI activist Venkatesh Nayak. Demonetisation was declared in the country on 8th November 2016 after a very brief meeting. The government did not even bother to wait for the approval of the core body of the RBI. The RTI revealed that the core body did not approve of the centre’s plan of banning the use of 500- and 1000-rupee notes
    

The Status Of Transparency In India

The independent India willingly or unwillingly inherited many things that the colonial rule had left behind like the railways, parliament building etc. The culture of secrecy was one such colonial legacy which India carried till the adoption of the RTI Act in 2005. The British Raj was established in India to serve the interests of Britain. During that period a lot of injustices, inhuman activities and flagrant misuse of power were carried out by the organisations acting as the hands of the colonial government subservient to the British Crown.

The colonial government, to block the information about such activities enacted information restricting laws. The Indian Official Secrets Act, 1889 which came to be known as the Indian Official Secrets Act[11] after a new version was notified in 1923 was extended to all matters of secrecy and confidentiality in governance of the country. Such laws blocked any form of transparency in the functioning of the colonial government.

After independence the state of transparency saw a paradigm shift due the enactment of the RTI Act of 2005. There were instances before the enactment of the RTI Act where transparency and a citizen’s right to information were recognised for example, the various court pronouncements.

The enactment of the act gave the ideal of transparency a statutory support. Common citizens who were oblivious about how the government functions, could now file a petition before a PIO and get the desired information with ease. Due to the provisions citizens could expose corruption scams, misuse of power, inefficiencies in the governance systems etc. Wielding the power granted by the act, the position of transparency in India rose exponentially.

The position that transparency enjoyed (in India) in the past is not even comparable to what it enjoys now. This rise in the position of transparency reverberates with the improving rankings of India in the various transparency indexes published around the world. India ranks 80th in the corruption perception index among 180 countries; the index is published by an organisation called transparency international.[12]

Recommendations

1. Pendency of appeals is a big hurdle in the complete implementation of the RTI Act. In June 2019 around 31,00 appeals were pending before the CIC. There should be an effort by the government to reduce the pending appeals
2. The security of RTI activists is a big concern. Commonwealth Human Rights Initiative an international Non-profit organisation reported that 84 RTI activists have been murdered since 2005[13]. The government should take measures to ensure the safety of whistle blowers.
3. Since the RTI act protects a fundamental right i.e., the right to freedom of speech and expression therefore CICs should be conferred a constitutional authority.
4. Political parties should be recognised as ‘Public Authority’ so that they come under the purview of the RTI act.
5. The recent amendments brought in the act seriously undermine the ideals that the RTI act stands for. It does not serve any public interest hence these amendments should be reconsidered and most desirably annulled.

Conclusion
In a Government of responsibility like ours where the agents of the public must be responsible for their conduct there can be but a few secrets. The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries. They are entitled to know the particulars of every public transactions in all its bearings[14].

The Right to Information Act is a watershed piece of legislation which if implemented in its true letter and spirit could bring a revolutionary shift towards transparency and accountability. The intention of passing the legislation was to achieve social justice, transparency and to make governments accountable for their actions.

These high ideals that influenced the enactment of this legislation do not stand full served. Throughout the length of the project, we found a lot of impediments that stood in the way of implementation of the RTI act in its entirety. These impediments have to be judiciously dealt with failing which the public will lose faith and confidence in this sunshine act as observed by the Delhi High Court.

The fight for transparency and accountability cannot only be won by the use of the RTI act, it needs the support of decentralization of power, awareness and participation of the citizens in governance, and a vigilant media and civil society.

References

1. Kamla, Role Of RTI Act In Making Governance Accountable And Transparent, 73 The Indian Journal of Political Science 321-330 (2012
2. Varsha Khanwalker, The Right To Information Act In India: Its Connotations And Implementation, 72 The Indian Journal of Political Science 387-393 (2011).
3. Prabodh Saxena, Public Authority and the RTI, 44 Economic and Political Weekly 13-16 (2009).
4. Nancy Roberts and Alasdair Roberts, A Great and Revolutionary Law? The First Four Years of India’s Right to Information Act, 70 Public Administration Review 925-933 (2010).
5. Ketki Tara Kumaiyan and Munni Padalia, Right To Information: The New Age Social Software, 74 The Indian Journal of Political Science 61-74 (2013).
6. S. Viswam, The Right to Information, 10 India International Centre Quarterly 175-185 (1983).
7. Anshu Jain, Good Governance And Right To Information: A Perspective, 54 Journal of Indian Law Institute 506-519 (2012).
8. Right to Information Act, 43 Economic and Political Weekly 6 (2008).

End-Notes:

1. What Swaraj Means to Me, available at: https://www.mkgandhi.org/momgandhi/chap65.htm (last visited on January 19, 2021
2. UN General Assembly, The Universal Declaration of Human Rights, GA Res 271A, GAOR, UN Doc A/Res/271A (December 10, 1948).
3. UN General Assembly, The United Nations International Covenant of Civil and Political Rights, GA Res 2200A (XXI), GAOR, UN Doc A/Res/2200A (XXI) (December 16, 1966).
4. The Freedom of Information Act, 1966.
5. Varsha Khanwalker, The Right To Information Act In India: Its Connotations And Implementation 72 The Indian Journal of Political Science 388 (2011).
6. AIR 1988 Raj 2.
7. 1978 AIR 597.
8. Public Authority means any authority or body or institution of self-government established or constituted:
   
   • By or under the constitution
   • By any other law made by Parliament;
   • By any other law made by State legislature;
   • By notification issued or order made by the appropriate government, and includes any:
     
     • body owned, controlled or substantially financed;
     • non-government organisation substantially financed, directly or indirectly by funds provided by the appropriate government.
9. Shri M. Hamid Ansari, Valedictory Address by the Honourable Vice-President, 4th Annual Convention of the Central Information Commission on (DRDO Bhavan, New Delhi 13th October 2009), available at: https://cic.gov.in/sites/default/files/2009/VP-Speech.pdf (last visited on January 19, 2021).
10. The Right to Information (Amendment) Act, 2019 (Act 24 of 2019).
11. The Official Secrets Act, 1923 (Act 19 of 1923).
12. Corruption Perception Index, India, available at: https://www.transparency.org/en/countries/india (last visited on January 19, 2021).
13. Attacks on RTI users in India: Hall of Shame statistics update 2016, available at: https://www.humanrightsinitiative.org/download/Attacks%20on%20RTI%20users%20in%20India.pdf (last visited on January 19, 2021).
14. State of U.P. v Raj Narain & Ors., 1975 AIR 856

Written By: Chinmay Harsh Karn - Alliance School of Law, Alliance University, Bangalore
Submitted to: Course Teacher- Mrs. Ekta Sawhney