Nineteen years on, how has the RTI Act fared?

Citizens and media must defend their right to information failing which the RTI Act will be converted into a right to deny information, writes Shailesh Gandhi.

—

THE Right to Information (RTI) Act completed 19 years on October 12, 2024. When it was first rolled out, it created great enthusiasm among citizens who saw the possibility of ensuring accountability and transparency from their government.

We call India the world's largest democracy, but this has not translated into welfare and good governance for the ordinary citizen. Democracy is defined as 'rule of the people for the people by the people', but the truth is that when an ordinary citizen goes to a government office, they often come out feeling hurt, humiliated and frustrated.

For the first time, we had a law that recognised the sovereignty of the individual citizen and recognised that she was giving legitimacy to the government and all public servants.

It also recognised the fact that the government held all information on behalf of citizens. Citizens who were empowered used RTI to redress their grievances and expose corruption.

The RTI Act does not have a list of information that the citizen could access but instead has a small negative list of information that could be denied to the citizen. All other information had to be shared with the citizens.

This was one of the best transparency laws in the world but it is not delivering the promised fruits and better governance because various instrumentalities have not been following the law but are mutilating it.

The Act recognises that all existing information must be given to a citizen on demand and mandates a personal penalty on a public servant if he denies information within 30 days without reasonable cause.

Also read: Balancing secrecy and transparency: The scope of the RTI Act's applicability to the CBI

For dissatisfied citizens, it provides for an appeal with a senior officer within the department and if this is not satisfactory, the law creates a second appellate authority in terms of an Information Commission. It gave adequate authority to the commissions to get their Orders implemented.

The Information Commissioners were to be selected by the committee consisting of the Prime Minister, Leader of the Opposition and one other minister for the Central Commission and the chief minister, Leader of the Opposition and one other minister for the state commissions.

This became the weak link of the RTI Act. Commissioners were selected without any transparent process and, in most cases, the posts were given to people who could work the bureaucratic and political network.

Consequently, a large number of commissioners were selected who had no predilection for transparency nor any love for it. Many of them looked at these positions as post-retirement sinecures or rewards for favours done while in service.

They did not recognise or understand the significance of the right to information as a fundamental right arising out of Article 19(1)(a) of the Constitution. The law had specifically stated that no reasons need to be given for seeking information.

Commissioners and courts started asking applicants to explain reasons why they wanted information. If the answer did not satisfy them, they denied the information to the applicants.

This has been further aggravated by the fact that many commissioners in the country do not work with any seriousness. Many of them do not work for even 40 hours a week. The disposal of cases is absolutely unacceptable in most cases.

Many commissioners dispose of 50 to 100 cases in a month. They should be disposing about 400 to 500 cases per month, as some do. As a benchmark, I may mention that the average disposal of cases in Indian high courts, which are more complex, is above 200 cases per month.

The backlogs in information commissions are increasing steadily and RTI cases are being delayed at commissions for six months to four years. Citizens lose interest in trying to enforce the law and public servants have started neglecting their duties mentioned in the law. This results in citizens losing faith in the law.

Also read: A ghost in the machine? On EVMs, democracy deficit and its constitutionality

Another major setback to RTI has been the gross misinterpretation of Section 8(1)(J) of the RTI Act. This Section was meant to exempt information which would lead to any invasion on the privacy of an individual.

Keeping in mind the fact that it may be difficult to define privacy, the Indian Parliament had crafted the Section in a careful and skillful manner.

This Section exempts:

1. "Information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information.

"Provided that the information, which cannot be denied to the Parliament or a state legislature, shall not be denied to any person."

Generally, most of the information in public records arises from a public activity. The Public Information Officer (PIO) has to decide whether it is an invasion of privacy. Privacy is to do with matters within a home, a person's body, sexual preferences etc.

This is in line with Article 19(2) of the Constitution. Then the PIO must record his subjective conclusion that he would not give the information to the Parliament or state assembly.

Unfortunately many public servants, commissioners and courts deny information just by saying it is personal information. This is not in line with the law or the Constitution. This could be a major loss for citizen's fundamental rights under Article 19 (1)(a).

Citizens and media must defend their right to information failing which the RTI Act will be converted into a right to deny information.