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Supreme Court tried to give some oxygen to RTI

Prof M Sridhar Acharyulu, former Central Information Commissioner, Advisor, School of Law, Mahindra University, Hyderabad. 

The Right to Information Act is a very empowering piece of law the best after the Indian Constitution of India, now being changed into Bharath, made the ordinary persons equated like ‘writ petition’ through application at a simple cost of Rs 10. But what we can do if, the RTI is weakened?

Also read: SC Before Electoral Bonds: Based on Second day arguments: Part 1

According to 30th October 2023’s official Press Note of a people’s organization Satark Nagrik Sangathan, the new ‘contemporary’ challenge was proved how the RTI is working in challenging situations in India. The SKS has noted that a bench headed by CJI Chandrachud today expressed displeasure at the failure of the Central and state governments to fill vacancies in information commissions and said that this defeats the very purpose of the RTI Act and the law will become a ‘dead letter’ if vacancies are not filled”. It is the absolute truth one should understand. It is good and bad reports, one says happy that the SC directed the Central government and state governments to take immediate steps to fill vacancies in the CIC and SICs respectively, but the bad news is that this is the contemporary state of RTI in India. 

Also read: Why Anonymity of Electoral Bonds and Voters’ Right to Information?

The bench of Chief Justice Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Misra heard the matter. During the hearing, it was pointed out that despite the 2019 judgment of the SC, the Union of India and several states have failed to fill the vacancies in the information commission leading to a large number of pending cases and long delays in the disposal of appeals/complaints.

Challenges to Access to Information

There are so many challenges to access to information in India nowadays. As a Central Information Commissioner for the full 5 years from 2013 to 2018, I have experienced which were thousands of judgments of successful stories. Many ordinary people ranging from small workers to Professors helped themselves with their own RTI requests (or applications). Several Hundreds of requests could solve problems that could have landed in High or Supreme Courts through Writs Appeals. The people could achieve the result equalling judgments which could be at any level through Government officers. 

The Constitution of India is such a mechanism in which many grievances were solved. The Penal Code and Evidence Acts even new changes contemplated were giving ample support to get their information issues, but unfortunately, the officers did not use that mechanism to help the people to resolve their grievances. Information access is very important for any ordinary man. 

In State of U. P. v. Raj Narayan, the apex court, for the first time, categorically observed that the Right to Information is a fundamental right that is an integral element of Article 19(1)(a) of the constitution. Unless people have been empowered with the right to ask relevant questions, democracies will not survive.

In the administration and functioning of a democratic government, the right to access and seek information is a sine qua non for transparency, openness, and accountability. 

Status of Information Commissions

The people’s organization Satark Nagrik Sangathan on October 11, 2023, released key findings of the “Report Card on the Performance of Information Commissions in India, 2022-23”, saying that as much as 4 out of 29 Information Commissions are defunct & 6 commissions are functioning without a Chief and more than 3 lakh cases are pending in information commissions across India 10 commissions have an estimated waiting time of one year or more to dispose a matter. 

The commission-wise status of vacancies was highlighted through the latest Supreme Court order.The Central Information Commission is currently functioning without a Chief and only 4 commissioners are working all of whom are set to finish their tenure by November 6, 2023, following which the CIC will become defunct. Maharashtra SIC is without a Chief and functioning with only 4 commissioners even though more than 1,15,000 appeals/complaints are pending. Jharkhand SIC has been completely defunct since May 2020 and no appeals/complaints have been registered or disposed of for the last three years. Tripura SIC has been defuncting for more than 2 years since July 2021. Telangana SIC has been defuncting since February 2023 even though more than 10,000 appeals/complaints are pending. Karnataka SIC is functioning with 5 commissioners and 6 posts are lying vacant. More than 40,000 appeals/complaints are pending before the commission.West Bengal SIC is functioning with 3 commissioners with around 12,000 appeals/complaints pending.Odisha SIC is functioning with 3 commissioners while more than 16,000 appeals/complaints are pending. The Bihar SIC is functioning with 2 commissioners while more than 8,000 appeals/complaints are pending.

The numbers explain that the information under RTI requests was given: 2,20,382 appeals and complaints were registered between July 1, 2022, and June 30, 2023, by 28 information commissions for whom relevant information was available. During the same period, 2,14,698 cases were disposed of by 29 commissions for which information could be obtained. 

The analysis of penalties imposed by information commissions shows that the commissions did not impose penalties in 91% of the cases where penalties were potentially imposable. Under Section 25 of the RTI Act, 19 out of 29 ICs more than 66% ICs have not even published their annual report for 2021-22. 

Also read: Secrecy shrouding electoral bonds

Diluted by 2019 Act

The Act 2019 removed these provisions and states that the salaries, allowances, and other terms and conditions of service of the central and state CIC and ICs will be determined by the central government. The Amendment to the RTI Act, 2019 seriously affects the federal structure of the RTI Act by excessively empowering the Government, both at the Centre and States, with enormous power of delegated legislation. 

Impacting through Data Act

The Digital Personal Data Protection Act, of 2023, removes provisions from Section 8 (1)(j) that allow public interest disclosure. The RTI Act of 2005 has simply substituted the earlier complete proviso in the subsection of the new amendment of Section 8(1)(j) with “Information which relates to personal information”.  

This substitution does not provide for jurisprudence generated in the enacted law and case law as the provisions allowing for disclosure due to larger public interest in the sentence “information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person” has been removed.  

Also read: Transparency and accountability are essential for Democracy, Let the Right to Information survive! 

In addition, the RTI Act, as the last provision in Section 44 of the Data Act, says:“(3) In section 8 of the Right to Information Act, 2005, in sub-section. (1), for clause (j), the following clause shall be substituted, namely: —”, …and (j) the information which relates to personal information;”

This change impacts the constitutional fundamental law, as explained by the Supreme Court, 2017 in K S Puttaswamy Vs. Union of India about privacy versus RTI.

Under the Data Act, violation of provisions could invite a high penalty for a data breach of up to Rs. 250 crore penalty.

The law has empowered millions of people to seek information and hold the government accountable. Under the RTI law, information commissions are the final appellate authority and are mandated to safeguard and facilitate people’s fundamental right to information. But, there is still hope for RTI to live, unless the process plugs the defects.

Also read:  The Plight of Data Act and RTI

31 October 2023

Prof. M. Sridhar Acharyulu
Prof. M. Sridhar Acharyulu
Author is Dean, Professor of law at Mahindra University at Hyderabad and former Central Information Commissioner. He published a number books in English and Telugu.

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