Right to Information (RTI) Act: Issues, Challenges, Amendment

RTI (Amendment) Act, 2019 had received the President’s assent despite the protests due to certain controversial provisions in the amended Act. This Act seeks to empower the Centre to decide the tenure, salary, allowance and other terms of services of the Information Commissioners of the Central Information Commission and also of State Information Commissions. Giving such powers to the Centre undermines the fundamental purpose of this Act – the government’s accountability and transparency.

What is the RTI Act, 2005?

• Right to Information Act is considered to be one of the most successful laws in India.
• It is the law that gives an ordinary citizen the right to ask questions to the government.
• It dictates the government to provide a timely response to the citizen who seeks it.
• The Ministry of Personnel, Public Grievances and Pensions has taken the initiative to ensure that a portal is provided for the citizens so that they can search and obtain information quickly.
• According to estimates, nearly 60 lakhs applications were filed every year. It was used by both the citizens and the media.
• Under the RTI Act, 2005, Public Authorities are required to make disclosures on various aspects of their structure and functioning.
• This includes:
• Disclosure of their organisation, function and structure.
• Powers and duties of its officers and employees
• Financial information.
• The Public Authority here includes the bodies of self-government established under the constitution or any law or government notification.
• These include the Ministries, public sector undertakings and regulators.
• It also includes any entities owned, controlled or substantially financed and non-governmental organisations substantially financed directly or indirectly by funds provided by the government.

The History:

• The right to information gained prominence when the Universal Declaration of Human Rights was adopted in 1948, giving everyone the right to seek and receive information and ideas through any media, regardless of frontiers.
• The International Covenant on Civil and Political Rights, 1966 states that everyone shall have the right to freedom of expression, freedom to seek and impart information and ideas of all kinds.
• The genesis of RTI law started in 1986, through the judgement of the Supreme Court in Mr Kulwal vs. Jaipur Municipal Corporation Case.
• During this case, the apex court had stated that the freedom of speech and expression provided under Article 19 of the Constitution clearly implies the Right to Information.
• This is because the freedom of speech and expression cannot be fully used without information.
• It was viewed by the Indian Parliament that it was the right of the individual to seek information from the government and had enacted the Right to Information Act, 2005.
• In 2019, this Act was amended and had received the President’s assent.

What are the objectives of the Act?

• To empower citizens
• To ensure transparency and accountability of the government
• To contain corruption
• To enhance people’s participation in the democratic process.

Why is it important?

• The RTI Act, 2005 plays a significant role in strengthening participatory democracy.
• It ensures people-centred governance.
• This Act does not create a new bureaucracy for its implementation. Rather, it mandated the government officials to change their attitudes and duty from one of secrecy to one of sharing and openness.
• It empowers the Information Commission to be the highest authority in the country to mandate government offices to provide information in accordance with the provisions of the Act. It also empowers the Commission to fine the officials who do not follow the mandate to make them accountable.
• This Act also empowers the poor and the marginalised by giving them rights to demand and get information about government policies and actions. This, in turn, leads to their welfare.
• It has exposed the offences at high places, such as in the organisation of the Commonwealth Games and allocation of 2G spectrum and coal blocks.
• RTI allows the public to have access to the government’s records so that they can scrutinize and analyse what the government does and how effectively. Therefore, the government is more accountable to the people.
• It further improves the decision-making capacity of the policymakers by removing unnecessary secrecy.

What are the challenges?

• RTI is not seeing its full potential in India due to illiteracy and unawareness.
• Individuals misusing the provisions are often creating harassment of the authorities. For example – People asking of useless, voluminous and often difficult to obtain information; creating publicity stunts and using it as a vindictive tool against the public authorities.
• Though RTI’s objective is not to create a grievance redressal mechanism, the notices from the Information Commissions often force the public authorities to redress grievances.

What are the changes made in the RTI (Amendment) Act, 2019?

• The term in office: As per the RTI Act, 2005, the Chief Information Commissioner (CIC) (at the Central and state level) will hold office for a term of 5 years. The Amended Act removes this provision and states that the Union government will notify the term of office for the CIC and ICs
• Salaries: The RTI Act, 2005 states that the salary for the CIC and IC (at the Central level) will be equivalent to the salary paid to the Chief Election Commissioner and Election Commissioners respectively. The amended Act removes these provisions and states that the salaries, allowances and other terms and conditions of services of the Central and State CIC and ICs will be determined by the Central government.
• Salary deduction: The 2005 Act states that at the time of appointment of the CIC and ICs (at the Central and state levels) if they are receiving pensions or any other retirement benefits for the previous government services, their salary will be reduced by an amount equal to the pension. The 2019 amended Act removed this provision.

What are the arguments for the Amendment?

• The Chief Election Commissioner and Election Commissioners have salaries of an SC judge.
• This brings the CIC and ICs on par with the SC judges.
• It is argued that the functions carried out by the Election Commission of India and Central and State Information Commissions are different.
• Election Commission of India is a constitutional body, Central Information Commission and State Information Commissions are statutory bodies established under the RTI Act, 2005.
• CIC has been given the status of the SC judge. However, CIC’s judgements can be challenged in High Courts.
• These amendments are made to correct certain irregularities in the RTI Act, 2005.
• It is also argued that these amendments can strengthen the overall RTI structure.

What are the arguments against the Amendment?

Threatens Federalism:

• It empowers Centre to unilaterally decide the tenure, salary, allowances and other terms of service of Information Commissioners, both as the Centre and state levels.
• This is intentionally assaulting the idea of federalism.

Reduces the power of Information Commission:

• It is also diminishing the status of the CIC, ICs and the State CICs from that of the Supreme Court Judge and would reduce their ability to issue the directives to the senior government officials, thereby undermining the basic principle of the RTI.
• These amendments could “kill the RTI Act” and is an “affront to federalism, good governance and ultimately, democracy”.
• It would also make freedom of speech meaningless.

Independence under question:

• The amendments would empower the Centre to decide the tenure, salary and allowance of the Information Commissioners both at the Centre and the state levels.
• Independence of the Commission is vital for its flawless functioning and the amendments take away just that.
• These amendments reduce the independence of the Commission and can only function like a Department of the Central government.

No public consultation:

• The Amendment Bill was brought to the Parliament without prior consultation from the public.
• This is a huge concern in a democratic country as it is against the public will.

Way forward:

• RTI should be strengthened rather than be weakened in favour of the government.
• It is, in fact, as per the SC’s judgement, the integral part of the right to free speech and expression under the Indian Constitution’s Article 19.
• This Amended Act needs to be changed to bring about transparency and accountability of the government since this is the whole purpose of this Act in the first place.
• All public authorities must digitize their records so that they are in the public domain and there is little need for the citizens to request information formally from the government.
• Awareness must be made so that all individual citizens are alert about the government’s functioning and its impacts on their lives.
• It is in the duty of citizens at large to safeguard democracy. Therefore, every one of them should participate in democratic activity for it to be safe and secure. Therefore all citizens must consistently use the RTI Act for the common good.

Conclusion:

RTI Act was implemented to ensure social justice, transparency and to make government accountable to its actions. However, it has numerous limitations and drawbacks. Steps must be taken so that the RTI Act is strengthened as it plays a significant role in Indian democracy.

Do political parties come under the RTI Act?

• Recently, the SC, in D.A.V College Trust and Management Society vs. Director of Public Instruction, had held that the NGOs that are substantially funded by the appropriate government fall within the ambit of ‘public authority’ under Section 2(h) of the RTI Act, 2005.
• Under this section, the “public authority” means any authority or body or institution of self-government established or constituted by or under the constitution. It also includes any non-governmental organisation that is substantially financed directly or indirectly by funds provided by the appropriate government.
• This judgement can have wide ramifications in a pertaining to the ambit of the RTI regime on national political parties.
• In the D.A.V case, the apex court held that “substantial” means a large portion which can be both, direct or indirect.
• It also held that it need not be a major portion or more than 50% as no straitjacket formula can be resorted to in this regard.
• For example, if a portion of land in a city is given free of cost or a heavily subsidised rate to hospitals, educational institutions or any other bodies that are funded by the government, it can be qualified as substantial financing.
• In 2010, the Association for Democratic Reforms (ADR) had filed an application under the RTI to all national parties, seeking information about the “10 maximum voluntary contributions” received by them in the past 5 years.
• None of these parties had volunteered to disclose this information.
• Consequently, ADR and a RTI activist had filed a petition with the Central Information Commission (CIC).
• In 2013, the full bench of the CIC had held that all national parties come under ‘public authorities’ and were within the purview of the RTI Act.
• Thus, they were directed to designate Central Public Information Officers (CPIOs) and the appellate authorities at their headquarters within 6 weeks.
• In 2013, the RTI (amendment) Bill was introduced in the parliament to keep the political parties explicitly outside the purview of the RTI Act. But this Bill was lapsed following the dissolution of the 15^th Lok Sabha.
• Despite the binding value of the CIC’s order under Section 19(7) of the RTI Act, none of the political parties complied.
• Also, none of them were present during the hearing when the Commission issued show-cause notices for non-compliance.
• Finally, in 2019, a Public Interest Litigation was filed in the SC seeking the declaration of political parties as ‘public authorities’ and this matter is now under sub judice.
• Drawing the analogy between the apex court’s judgement on D.A.V and the political parties’ issue which is sub judice, it can be argued that national parties are ‘substantially’ funded by the Central Government.
• For instance, numerous concessions like land allocation, accommodation, bungalows in national and state capitals, tax exemption against income under Section 13A of the IT Act, free air time on TV and radio etc. can easily satisfy the prerequisite of Section 2(h) of the RTI.
• This interpretation is based on purposive approach of interpretation which is sometimes referred to as purposive construction, purposive interpretation or the “modern principle of construction”.
• It is an approach to statutory and constitutional interpretation under which common law courts interpret an enactment (statute, part of statute or a clause of the constitution) based on the purpose for which it was enacted.

Does CJI come under the RTI Act?

• The apex court had recently stated that the office of the Chief Justice of India (CJI) is a public authority and that it will come under ambit of the RTI Act.
• This ruling was given by the 5-judge Constitution Bench that was headed by the Chief Justice Ranjan Gogoi.

Key highlights:

• The Supreme Court is a “public authority” and the office of the CJI is part of this institution.
• Thus, if the top court is a public authority, so is the office of the CJI.
• The judiciary cannot function in total isolation as the judges hold the constitutional post.
• Nonetheless, Right to Privacy is an important aspect and has to be balanced with transparency while deciding to give out information from the office of the CJI.
• RTI cannot be used as a tool for surveillance and that judicial independence should be kept in mind while also ensuring transparency.
• On the issue related to the judges’ appointment, the apex court held that only the names of the judges recommended by the Collegium for appointment can be disclosed and not the reason.

Consequences:

• The office of the CJI will now accommodate RTI applications.
• The public authority under the RTI Act, 2005 includes the body constituted by or under the Indian Constitution.
• Article 124 of the Indian Constitution deals with the establishment of the Supreme Court of India.
• The information includes any material in any form, including records, documents, memos, e-mails, etc. from the office of Chief Justice of India.
• This ruling is an example for other bodies like the political parties, trusts and public-private partnerships that are resisting the categorization as public authority under this Act.
• However, there have been instances when the offices the PM, the President and the others are denying information under the RTI Act by quoting the apex court’s separate observations.

Model Questions:

1. “Any amendment to the RTI law is destined to be viewed with suspicion if no fundamental need is seen for the changes it proposes”. Critically analyze.
2. RTI Act is not seeing its full potential due to limited powers in the hands of CIC. Comment.