In Kot Kirana, when the names of those who allegedly worked on public projects was read out, it quickly became clear some of them were dead. Fake signatures were rampant. Government records showed that the public building the villagers were sitting in front of was completed; that payments were made. But there was no roof, or a door. The gathered crowd began laughing.
The laughter soon turned into anger and by the summer of 1996, the nearby city of Beawar in Ajmer district was in the grip of a 40-day-long strike. At a press conference in Delhi that year, Sushila, a barely literate woman from rural Rajasthan articulated her demand for transparency as a right. “When I send my son with ten rupees and he comes back, I ask for accounts. The government spends billions of rupees in my name, shouldn’t I ask for my accounts?" Sushila’s words in Hindi were a simple phrase: “Hamara paisa, hamara hisab (our money, our accounts)".
Many of those early participants in this 25-year-old movement which began in the dust bowls of central Rajasthan are now deeply disappointed with the central government.
The reason: an amendment to the Right to Information Act, 2005, which the Prime Minister Narendra Modi-led government introduced in parliament on 19 July without pre-legislative consultation, and which was rammed through the Lok Sabha and the Rajya Sabha in less than a week, amid much drama and heartburn.
The changes give the centre the authority to fix the tenure and salaries of information commissioners—currently ranked at par with election commissioners, with a fixed tenure of five years. In a government system where seniority and hierarchy is everything, demoting information authorities would be a proxy way to kill the RTI, say activists. Without a fixed tenure and salary, which will now be decided by the government, information commissioners will lack the teeth to force public bodies to part with information. As the early days of the transparency movement at Kot Kirana showed, opening up government files is possible only when an officer of sufficient rank gives the go ahead.
“We always knew we could go to the aayog (information commission) to complain if officials did not reply," Sushila said, 25 years after scores of women like her first hit the streets demanding information from the government. “Now, such hopes are bleak. Now, the aayog will listen to the government and local officials will no longer fear our questions or bother to reply," she added.
In 2005, the parliamentary standing committee reviewing the RTI Bill had said the terms of appointment of information commissioners was the “essence of the Bill". “It should be ensured that the commission and its functionaries perform their duties independently and with complete autonomy. For this, it is necessary to elevate their status to that of the Election Commission of India," the committee’s report had said.
Coming down heavily on the amendments, Congress legislator Jairam Ramesh in the Rajya Sabha on 25 July called the RTI (Amendment) Bill, 2019 “profoundly dangerous". The timing of the amendments was not innocuous or innocent, Ramesh said, highlighting how it followed several uncomfortable RTI queries and bold directions by information commissioners—relating to the Prime Minister’s educational qualifications, the Prime Minister’s claim on number of bogus ration cards weeded out through the use of Aadhaar, disclosures related to demonetization and bank defaulters, and queries on the quantum of black money brought back from abroad.
“More openness in government will help citizens. In this day and age, there is no need for secrecy," Prime Minister Modi said in 2015 at the annual convention of information commissioners.
The Bharatiya Janata Party (BJP), after all, has politically benefitted from the RTI Act—which was instrumental in unearthing a slew of scams under the previous Congress regime.
Defending the changes in the RTI Act, junior minister at the Prime Minister’s Office Jitendra Singh argued in Parliament last week that the government is committed to “full transparency and accountability". One can now file an RTI online if wisdom comes knocking post-midnight, the minister said. However, despite the tremendous success of the transparency law—an estimated five to six million information requests are filed every year—implementation of the Act has been far from perfect. From long delays in getting a response to threats and intimidation, the RTI applicant faces many hassles. Here are five ways to strengthen the RTI regime, instead of downgrading the stature of the information commissioner’s office:
To begin with, the government could take steps to reduce pending appeals. Under the RTI Act, when an applicant is denied information by a government department, the first appeal is made to the appellate authority in the department. If unresolved, the RTI applicant can move the office of the Central Information Commission (CIC)—for queries related to central government—or State Information Commission. Government data shows that pending appeals have been a consistent hurdle: in May 2014, when the BJP government came to power, close to 35,000 appeals were pending before the CIC. In June 2019, about 31,000 appeals were pending, over 9,000 of those pending for over a year. Currently, four out of the ten positions of information commissioners are vacant.
According to Anjali Bhardwaj, co-convener of the National Campaign for People’s Right to Information (NCPRI): “Since 2014, not a single appointment has been made in the CIC till the courts intervened." Several information commissions in the states were either non-functional or working at a reduced capacity, found a March 2018 report by the Satark Nagarik Sangathan and Centre for Equity Studies, Delhi. “Vacancies are often a result of the apathy and inefficiency... There is also a strong apprehension that information commissions are purposely deprived of commissioners to scuttle the effective functioning of the RTI Act," the report said.
Prune the exemption list
According to an RTI ratings report by the Canada-based Centre for Law and Democracy, India’s rank slipped from second position in 2011 to eighth in 2018. India remains one of the top-ranked nations but there are several problems with its access regime, the report said. It flagged blanket exemptions from the RTI to “security, intelligence, research and economic institutes" and “information held by private entities which perform a public function". In its current form, Section 8 of the RTI Act lists ten exemptions, ranging from any information that may hurt national security, impede the process of ongoing investigations to cabinet papers and deliberations of the council of ministers.
“Any information which is remotely connected with national security is now flatly denied... say, leave and working conditions or any information related to transfers in the armed forces. The current exemptions are wide and have to be clarified and sharpened," said M. Sridhar Acharyulu, professor of law at Bennett University, Noida, and a former information commissioner.
“Section 24 of the RTI Act allows (the) government to increase the list of exemptions by an executive order... to strengthen the RTI Act, this should be only allowed through the legislature," he added. Since 2005, the list of exempted government organizations has grown from 18 to 26.
In March 2018, Nanji Sondarva was allegedly clubbed to death in Gujarat’s Rajkot district after filing an RTI application seeking details of a newly constructed road in his village. According to a tracker of assaults on RTI activists set up by the Commonwealth Human Rights Initiative (CHRI), a Delhi-based international non-profit, 84 RTI activists have been murdered since 2005 for seeking information on illegal construction, alleged scams in social welfare schemes, and corruption in panchayats. While seven activists have committed suicide, more than 350 have either faced assault or harassment.
Starting with timely and effective investigation, India needs to put in place long-term measures to prevent these assaults, the CHRI said in a statement in February, following the alleged murder of an RTI activist in Maharashtra. “The central government has not yet enforced the Whistle Blowers Protection Act enacted by Parliament in 2014. Instead, regressive amendments to the law which will effectively discourage any whistle-blower from blowing the lid on corruption and other kinds of wrongdoing in the government are pending in the Rajya Sabha," the statement added.
“The government’s (proposed amendments) say information which deals with national security must not be revealed by a whistle-blower," said Nikhil Dey of the Mazdoor Kisan Shakti Sangathan, which played a pivotal role in creating a public movement on transparency in rural Rajasthan.
CIC as a constitutional body
While introducing the amendments to the RTI Act, the government had argued that the office of the information commissioner is a statutory body and not a constitutional authority like the election commission, and since the information commissioners’ orders can be challenged in a high court or the Supreme Court, the rank and pay of the chief information commissioner cannot be the same as that of a chief election commissioner (a position equivalent to a Supreme Court judge).
However, according to Wajahat Habibullah, a former IAS officer and the first chief information commissioner, the RTI is safeguarding a fundamental right guaranteed under the Constitution and so the government should seriously look into the possibility of elevating the information commission to the status of a constitutional authority. The reason is simple: Article 19 (1)(a) of the Constitution guarantees freedom of speech and expression to citizens, but without the RTI, one cannot express oneself, including while making an electoral choice. In a slew of judicial pronouncements, the Supreme Court has also interpreted RTI as a fundamental right—in 1975 and 1982. However, to raise the stature of the CIC to that of a constitutional authority, the Constitution has to be amended, said Habibullah.
Political parties under RTI
All political parties claim to serve the public but are unanimous in their reluctance to share information with citizens. In 2013, the CIC had declared six national political parties as public authorities under the RTI Act and ordered them to make voluntary disclosures and respond to information requests. The order followed an appeal by RTI activist Subhash Chandra Agarwal and the Association for Democratic Reforms after they failed to get details regarding financial donations received by political parties. The CIC classified political parties as a public authority since they benefit from land allotted by the government at cheap rates, free air time with state broadcasters during elections, and are allowed to claim income tax exemptions.
According to the 2013 CIC order: “Political parties affect the lives of citizens, directly or indirectly, in every conceivable way and are continuously engaged in performing (a) public duty. It is, therefore, important that they became accountable to the public."
“It would be odd to argue that transparency is good for all state organs but not so good for political parties, which, in reality, control all the vital organs of the state," the CIC said. However, all parties refused to comply with the decision, prompting the petitioners in the case to approach the Supreme Court in 2015, which is still hearing the case.