Dear Citizens! Save RTI And Save Democracy

Here is how RTI Act which came into being after a lot of struggle is being watered down by the powers that be. RTI commissioners have no independence and the chief commissioner is vested with extraordinary powers. The Act which is expected to protect the fundamental rights of the people is on the verge of collapse. It is for the citizens to save the Act, says the author.

S Viraat

No Government is interested in giving effective right to information to the people, in spite of the guarantee by the Parliament through RTI Act. The Ministry of Personnel and Training, the nodal agency for implementation of RTI has come up with draft RTI rules which in fact kill the RTI. The people have to protect the RTI by opposing these anti-RTI Rules.

Fundamental Right:

Right to information is judicially recognized intrinsic component of fundamental right to freedom of speech and expression under Article 19(1)(a), which can be reasonably restricted only by legislation but not by executive rules.

Illegal attempt:

Proposed Right to Information Rules 2017 is an illegal attempt to limit the RTI of the citizens and independence of the Central Information Commission.  Strictly speaking the Central Government can prescribe rules for procedure on hearing of appeals that too only on Section 19(10) of Right to Information Act. But these 2017 Rules contemplate to introduced substantive principles like second appeal gets abated if the appellant dies etc, and goes ultra vires to disturb the equilibrium of Commissioners within CIC besides seriously denting their independence. The Rules 17 and 18 put the Chief Information Commissioner under constant pressure of executive powers to reverse the unpalatable orders.

Interference in CIC’s work:

Ministry of Human Resources Development was with one Central Information Commissioner, who was elevated to Chief position later. Second appeals of MHRD were not called up for hearing for more than 9 months till the subject was allocated to another Commissioner. As two Commissioners were retiring, the subjects were redistributed in the last fortnight of December 2016, in which MHRD was not disturbed. The work allotment happens in CIC by a general order of the Commission, where Chief is assisted by the other Commissioners as mandated by Section 12(4) of Act.  It so happened that the media reported three orders relating to disclosure of educational degree related information of couple of VVIPs directing the Delhi University and National School of Open Learning and within a week the subject of MHRD was taken away from the concerned Commissioner and unceremoniously shifted to another. While first order was general order second was the special!

Concentration of powers in Chief against scheme of RTI Act:

We need to read this ‘shifting of subject’ in the light of practical independence of Central Information Commission in general and of individual Commissioner in particular with reference to new Rule 17. In the name of laying down procedure for posting, Central Government wants the appeal/complaint/noncompliance shall be posted before a Single Bench for hearing/disposal, unless the Chief Information Commissioner by a special or general order issued in this behalf from time to time directs that the appeal/complaint/noncompliance or a category of the same may be posted for hearing/disposal by another bench or a bench of two or more information Commissioner either at the request of an information Commissioner, or suo motu if the same involves an intricate question of law or larger public interest.

Blow to independence of Information Commissioner:

This means, if one Commissioner gave an order uncomfortable to VVIP, the Chief can be forced to consider it involves an intricate question of law or ‘larger public interest’ and withdraw the case from him and post it before another, either on his request or suo motu. The Chief need not take consent of either of the Commissioners, nor wait for the request from the former.  This power is reiterated and confirmed by Rule 18(2) which is innocently titled as ‘Presence of parties before the Commission”.  It says: “the Commission shall notify the parties the date and place of hearing of the appeal or complaint in such manner as the Chief Information Commissioner may by general or special order direct”. Why special order? Why not the general order of the CIC prevails and why the general order of work allocation should be disturbed?

No Benches under RTI Act:

First of all why these Benches are being proposed? The RTI Act 2005 did not provide for the benches. Act dealt gave discretion to the individual independent Commissioners. No hierarchy is prescribed among them. One’s order does not bind the other. No appeal from single member bench to division bench etc.  The ratio of Division Bench will not bind the single member.  Each case is specific and order parties only. How can Government institutionalize benches by subordinate rules, when substantive law did not provide for? All commissioners are equal and chief is first among them.  It is unconstitutional to disturb this equilibrium.

Fatal blow to RTI:

If these two Rules against Rule of Law are allowed to remain in the Rule Book, imagine the plight of the office of Chief.  While independence of CIC is grounded the Chief will be under constant pressure to pull that case from ‘x’ and put it before ‘y’. Will it not reduce Commissioners into clerks and chief-clerk?  It will be fatal blow to the institution and final straw that breaks the back of Right to Information.

University’s two tongue attitude:

A University gives degree related information to thousands of applicants, publishes the results every year with name, father’s name, marks qualifying and failed without raising a little finger about privacy, but when degree related information of a VVIP, the so called autonomous body refuses, calls for lawyers support at huge cost, stalls the order of disclosure, even after the VVIP’s degree copies are distributed to the media in open. Another VVIP retorts let my LKG and UKG records too be given, followed by a stay order against disclosure of graduation details. This was thought to be an aberration, but with these two rules, it will be a phenomenon.

Give suo motu powers to each Commission:

If the Government is sincere enough to give suo motu powers, let it give to all Commissioners, including the Chief, and let them seek implementation of Section 4 transparency norms, question the missing files pertaining to VVIPs, suo motu and do everything to implement RTI Act.

Give Information at actual cost:

The Rule making section 27 (a) mandates that Government can make rules under Section 4(4) which says: All materials shall be disseminated taking into consideration the cost effectiveness, local language and the most effective method of communication in that local area and the information should be easily accessible, to the extent possible in electronic format with the Central Public Information Officer or State Public Information Officer, as the case may be, available free or at such cost of the medium or the print cost price as may be prescribed.

Don’t sell information at high cost:

Instead of collecting actual cost, the Government wants to sell information at Rs 2 per page of Photostat, copying of which costs only one Rupee or less in the market. It wants Rs 50 per disk, while it is available at less than half of that price.

Can Government say “If you kill requester, we kill request”:

While Section 27(2)(e) of RTI Act empowers the Government to make Rules on procedure for hearing Appeals only, it ventures to make rules on every minute aspect of management by the Commission like type appeal in double space on one hand and removes its jurisdiction over second appeals and complaints if the appellant died.  Only in the criminal law, where punishment has to be suffered corporally, the prosecution abates on the death of accused.  Recently Supreme Court permitted recovery of penalty in Jayalalita case, though the convict died. Even on the death of complainant, the criminal case will not get abated, but the complaint against non-disclosure should die with complainant.  For that, it should amend the RTI Act. It is a back door attempt through Rules. It is both illegal and a wonder. Through this Rule 12, a clarion call goes, “you kill requester, we kill request”.   (Please see Rule wise observations in annexure)

Please save RTI, CIC and democracy.

1 Response

  1. murthy says:

    What you said is correct. Practically it is true and real.

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Making democracy safe for the world

A Prasanna Kumar

Prof. Ayyagari Prasanna Kumar

Prof. Ayyagari Prasanna Kumar

Almost a hundred years ago, on April 2, 1917 to be precise American President Woodrow Wilson sought the approval of the American Congress for declaration of war against Germany so that the world “be made safe for democracy.” Wilson’s appeal was acclaimed and approved because Germany’s cruel submarine warfare killed ‘many peaceful and innocent lives in one of the darkest periods of modern history’. Since then ‘making the world safe for democracy’ has remained one of the famous quotes in public discourse. Ironically enough the happenings, during the last three decades and more, in the name of freedom and democracy seem to have necessitated an alteration of the Wilsonian maxim into that ‘democracy be made safe for the world.’ Not only because of the fact that during the past three decades 24% of the world’s democracies have broken down and the world is experiencing ‘a slow degradation of political rights and legal procedures  through electoral fraud and the rise of authoritarian leaders’ but also due to the fact that democracy is providing space for demagogues and corrupt elements to exploit the vulnerable and disadvantaged sections of the  society. Authoritarianism, crony capitalism, dynastic rule and primordial loyalties have emaciated democracy to such an extent that rule of law and respect for basic human rights have been marginalized.   

‘Freedom itself is not free’ – is no longer a cliche but a threat looming ominously on the political horizon.  According to Freedom House that conducts research and advocacy on democracy, political freedom and human rights ‘the state of freedom is worsening significantly in every part of the world’.  Only 89 countries out of 195 are designated Free and they represent 40 percent of global population, 51 countries are deemed ‘Not Free’ and 55 Partly Free.  125 countries are described as electoral democracies.  Freedom of expression and civil society rights continue to decline.  Added to this is the growing restriction on freedom of movement – all in violation of the Universal Declaration of Human Rights adopted by the United Nations General Assembly on December 10, 1948. 

Public concern over the future of democracy is growing as evidenced by the works of scholars and analysts expressing doubts and anxiety about the future of democracy. Democracy in Decline? edited by Larry Diamond and Marc Plattener states that ‘liberal democracy is in trouble’ and the democratic world is in ‘recession.’ In his review of the book in Foreign Affairs issue of May-June 2016 John Ikenberry writes about ‘the undertow of dashed expectations that seems to define the fate of modern democracy: political gridlock, economic stagnation, growing inequality fraying social contracts , reactionary nationalism and rising authoritarianism. They make ‘the stunning observation’ that the world is experiencing ‘ a slow degradation of political rights and legal procedures  through electoral fraud and the rise of authoritarian leaders.’  Marc Plattener in his article in the June issue of Democracy & Society identifies three reasons for doubts about democracy 1) the growing sense that advanced  democracies are in trouble in terms of their economic and political performance at home 2) the new self-confidence and seeming vitality of some authoritarian countries and 3) the shifting geopolitical balance between democracies and their rivals. In the May 2-15 issue of New York Andrew Sullivan writing under the title “Our democracy has never been so ripe for tyranny” refers to the ‘dystopian election’ campaign that has unfolded in the United States. He begins with a quote from Plato’s Republic that “tyranny is probably established out of no other regime than democracy.”  The vicious campaign in the run up to the US Presidential election has unleashed forces that threaten to deepen the fissures in American society. 

Democracy has been hijacked in both advanced and developing countries by demagogues who thrive on evocation of hatred and spread of intolerance. India’s decline as a democracy has been alarmingly steep. Institutions have decayed and professional autonomy has collapsed. The state is now perceived as the main source of all chronic afflictions such as violence, corruption and poverty. Still India’s stability as a  democracy is vital not only for Asia but for the entire world.  It is a testing time for the nation as threats continue to emanate from across the border to India’s security while anti-national forces pose a serious challenge to the unity and integrity of India. Can India come out of the present morass? Why not? Civil society should help politics in making the impossible possible.

– A Prasanna Kumar is the Director, Centre for Policy Studies;

Former Rector and Retd. Professor, Andhra University

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