Author : Ramanath Jha

Expert Speak Urban Futures
Published on Mar 03, 2020
The RTI act in the light of observations of the Supreme Court

Unalloyed votaries of the Right to Information (RTI) Act were taken aback by the observations of the Supreme Court bench during the course of the hearing of an application on 12 Dec 2019 that sought implementation of the past judgment of the Apex Court directing the Centre and the States to appoint information commissioners. “There is pervasive fear of RTI. Officials have become afraid of putting anything on the files. We are informed that Mantralaya in Mumbai is getting paralysed because of incessant RTI Applications,” remarked the Bench.

It further sought opinion on whether RTI applications should be allowed to be filed only by such parties that are connected to that matter. The Bench was advised that such restriction would be a severe blow to transparency, especially in financial matters, where direct contestation of an unfair award of a contract may not be contested by the wronged parties for fear of future official reprisal. However, the judges persisted. “There are innumerable instances of blackmail through RTI”, they said, further adding that “Nowadays some people describe themselves as RTI activists. Is that a profession? Or is it something under Section 506 (criminal intimidation including blackmail)? We are not telling this to you lightly. We are saying so from experience as judges”.

The RTI Act, in concept and intention, was decidedly a landmark piece of legislation and buttressed transparency as a key principle of good governance. It furthered past judicial pronouncements that freedom of speech and expression includes the right to acquire information and disseminate it. Indeed, right to information has been labelled as a right from which other basic human rights flow. In the 21st century, no society could claim to be truly liberated until it provided its people with access to information.

The Act has allowed facts and misdemeanours to be brought to the surface that would never have seen the light of the day in the absence of the RTI and no action would have been taken against the culprits. Common citizens took on political functionaries, businessmen, contractors and the mafia who were making private profit at the cost of public good. The fear of exposure and subsequent consequences must surely have compelled many among the powerful to desist from wrongful conduct. In a way, it made a common citizen mighty enough to bring down any public functionary, however powerful, by exposing him through information obtained through the provisions of the RTI Act.

In the process, many whistle-blowers, in the dogged pursuit of information paid with their lives. Since the enactment of this law, a newspaper reported in Oct 2016 that at least 51 murders and five suicides of citizens engaged in RTI activities had occurred. In addition, there have been at least 130 instances of attacks and assaults. Figures unofficially updated since then report that till 2019, a total of 84 activists had been killed and 385 cases of assault had been reported. Even if there was scope to challenge these unofficial figures, the fact is that those indulging in malfeasance are powerful. If they find that their nefarious activities are threatened by exposure, they are willing to go to great lengths to silence those who cross their path. By inference, this shows the potency of the RTI Act.

Moving forward, the desirable path is to make such changes to the Act that make it functionally more robust and devise ways that discourage its misuse. Today, getting information is not an easy task and several methods of delay and harassment of information seekers have continued. This is despite the fact that information commissioners, in several instances, have imposed personal fines on defaulting public servants. Additionally, a massive number of applications have created a huge backlog that the RTI authorities find difficult to dispose of in a short time frame. As a consequence, the RTI Act has lost some of its steam. The number of applications between 2015-16 and 2016-17 filed before 1,950 public authorities of the Central Government, the largest receiver of applications in the country, went down by six percent.

Unfortunately, making the RTI Act more efficient does not solve the whole difficulty. Problems exist beyond the Act in the manner records are maintained in public offices. It would be fairly accurate to assert that the standard of record-keeping in several parts of the country and at the lower administrative levels is woefully substandard. Physical retrieval of papers in a governmental organisation that constantly generates huge amounts of paper work, is bound to be hugely arduous. A complete digitisation of records and an easy electronic retrieval system through an extensive use of ICT (Information and Communications Technology) is absolutely essential. Additionally, the capacity of citizens, currently restricted to very few, has to be built down to the villages. As Mahatma Gandhi asserted, “Real Swaraj (freedom) will come, not by the acquisition of authority by a few, but by the acquisition of the capacity by all to resist authority when abused.”

More transparency also needs to be built in the appointment process of information commissioners with objective benchmarks for ascertaining their suitability. It appears incongruous that such transparency does not exist today in the very appointments that are designed to uphold the principles of transparency. Governments also need to exhort their functionaries to more pro-actively disclose information. The RTI Act, after all, is a limited transparency tool. It allows information to flow out only if such information is asked for. This conveys an inherent reluctance to share information. In actuality, public organisations would be recognised as truly transparent if they were to upload all material information on their website of their own accord.

On the negative side, while there is no doubt that transparency is a significant tool for good governance, it would be difficult to deny that the Act has had some adverse consequences. While many genuine RTI activists have lost their lives in the determined quest for information, several individuals have also misused the Act for ulterior purposes. Furthermore, a large bureaucracy has mushroomed around the Act. Even more worrisome is that the Act has made administration more mindful with its remarks on files. This is what the Supreme Court was referring to. There is no doubt that this has negatively impacted both the pace and quality of decision-making and led to circumvention of decisions that may come to haunt the decision-makers. It is important, therefore, that the Act must provide for the dismissal of complaints along with penalty if it is established that the intent was mischievous or vexatious. This should take care of the concerns expressed by the Supreme Court.

It is vitally important that good governance instruments such as the RTI Act must be fashioned in a manner that unnecessary financial burden is not cast on the public exchequer. State public information offices are already lodging complaints that the cause of information provision is suffering on account of insufficient allocation of funds. Given the financial condition of most states, reeling under financial debt, all effort needs to be made to have a lean bureaucracy and digitised operations.

It is true that even after one and a half decades since its passage, the Act has not made any substantive contribution to the overall governance of the country. But that is not the fault of this Act. Good governance requires a composite basket of reforms to be injected to deliver comprehensive good governance. Despite these truths, the way forward in regard to the Act is to move towards its strengthening and not towards its emaciation.

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Ramanath Jha

Ramanath Jha

Dr. Ramanath Jha is Distinguished Fellow at Observer Research Foundation, Mumbai. He works on urbanisation — urban sustainability, urban governance and urban planning. Dr. Jha belongs ...

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