Right to Information: Fall of the Most Important Legislation

Cartoon by Satish Acharya on Right to Information (Amendment) Act 2019.

By Masoom Reza, Fourth-year B.A. L.L.B. student from Jamia Millia Islamia, New Delhi.

A government which functions in secrecy not only acts against democratic decency but also buries itself with its own burial.”

– Justice Krishna Iyer 

INTRODUCTION:

Access to information is the key to all-encompassing development, it is essential for empowered citizens and inclusive society. 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. 

Unless people have been empowered with the right to ask relevant questions, democracies will not survive. Democracy is based on the continuous communication that flows from the government to its people.[1]

Although the Indian Constitution does not explicitly mention the Right to Information, it stems from the Right to Freedom of Speech and Expression. In State of U. P. v. Raj Narayan,[2] the apex court, for the first time, categorically observed that the Right to Information is a fundamental right which is an integral element of Article 19(1)(a) of the constitution. In the absence of information, constructive discourse cannot prosper and a healthy democratic set up reduces to a mere dream.

The Right to Information Act 2005 provides a structured mechanism for realizing the potential of democracy. One of the most potent transparency legislation, the RTI Act, was promulgated in India on July 15, 2005, and enforced on October 12 the same year.

This article will shed light on the current scenario vis-a-vis the RTI Act, and detail out the importance of the legislation and its current decline.

The first part of the article will discuss the interconnection between the Right to Freedom of Speech and Expression and Right to Information, with the overview of the Right to Information Act 2005. 

The second part will critically examine the 2019 Amendment with special focus on the events from 2020 that have further downsized its importance. The article will discuss the 2019 Amendment on the touchstone of the constitutional principles and also depict the decline of the right to information regime on account of the narrow interpretations and undermining of the institutions like the Information Commission in light of several recent episodes.

At last, various suggestions and recommendations have been put forward to safeguard the spirit of the Right to Information Act.

Before stepping into the current scenario, it is important to underline how the right to information derives itself from the human right to seek information. Moreover, despite the bureaucratic fallacies in terms of its implementation in the past, it is important to highlight aspects of the RTI Act 2005, which at least in its definition acted as an enabler to seek accountability.

How Fundamental is the Fundamental Right To Information? 

The Right to Information is a fundamental human right. Article 19 of the Universal Declaration of Human Rights 1948, guarantees the right to freedom of opinion and expression which also encompasses seeking, acquiring and disseminating information. In a democratic framework, the citizens deserve to know about government policies, developmental schemes and how these policies and schemes are materialized on the ground.

The framers of the Indian constitution had also realized the significance of the Right to Freedom of Speech and Expression in a democracy. The preamble of the constitution talks about ‘liberty of thought’ and Article 19(1)(A) guarantees it as a fundamental right. Needless to mention, the constitution of India was adopted and enacted by ‘we the people of India’. It makes evident that in a democratic setup like India, sovereignty lies with the people, and only the will of people will determine the course of governance.

Part 3 of the Indian constitution incorporates the fundamental rights which are sacrosanct. Over time, the horizons of these rights have been broadened through several seminal judicial pronouncements. The ambit of the Right to Freedom of Speech and Expression has also been expanded owing to several petitions filed by the press for enforcement of specific incidental implications of the said Right. This eventually paved the way for the emergence of the Right to Know and the Right to Information.

Knowledge and information are essential prerequisites for enjoying the Right of Freedom of Expression and dignified life. Therefore, the Right to Information was declared a fundamental right, being an essential facet of Articles 19(1)(a) and Article 21.[3]

In Bennett Coleman V. Union of India,[4] the court declared that the Right to Know, a species of the Right to Speech and Expression, forms the bedrock upon which the Right to Information rests. A citizen has a fundamental right to access the information and the state is obliged to protect the fundamental Right and provide the opportunities under which this Right can be effectively enjoyed.

In the landmark case, State of U.P. V. Raj Narain,[5] on the denial of furnishing information given under “Blue Book” by the government, the Supreme Court made striking observations.

The honourable court held that in a democracy, the citizenry should be informed about all public actions and a ‘veil of secrecy’ must be lifted to allow the citizens to exercise the Fundamental Right to Know and the Right to Question enshrined under Article 19(1)(a).

Similarly, while allowing the disclosure of correspondence related to transfer and appointment of judges between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India, the Supreme Court ruled that an open and participatory democracy requires accountability and transparency about the working of the government. [6]

Further, the court also observed,

“The concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a).

Citizens have a right to Information to play a participatory role in industrial framework and democracy. It arms the citizens of a free nation to effectively realize a broader horizon of the Right to Life in this era under Article 21 of the constitution.[7] On the same line of argument, in Union of India V. Association for Democratic Reforms,[8] the court maintained that the right of the electors to know about the previous history including criminal records of the candidates is substantially more fundamental and essential than the advantages or privileges of the MPs or MLAs for a democracy to flourish.

All these judicial pronouncements depict that the Right to Know and the Right to Information are the facets of the Right to Freedom of Speech and Expression guaranteed by Article 19(1)(a) and one cannot be exercised without the other.

Owing to these developments, the need for a systematized framework for the effectuation of the Right to Information was profoundly perceived across the country. After a long public movement, the government enacted the Right to Information Act 2005.

The Right to Information Act: A Sunshine Legislation

Right to Information Act 2005, is a watershed in the annals of independent and democratic India. It established a robust mechanism for the effectuation of the Fundamental Right to Information. In the democratic framework, transparency, accountability, alertness, public awareness and government-public interaction are the fundamental pillars of good governance.

Needless to say, the RTI Act aims at cementing these values.[9]

 As per the mandate of the Act, any citizen of India can seek information from a ‘public authority’ (a body of Government or ‘instrumentality of State’) which is obliged to reply within the stipulated time. In case of the matter including a petitioner’s life and liberty, the information must be furnished within 48 hours.

The Act also mandates that every public authority should computerize their records for wide dissemination and proactively publish certain categories of information. Social activists, human rights’ champions and even the common masses have so far accessed this legislation to its potential.

As per the data of Transparency International, 2.5 crore RTI applications were filed within a single decade (2006-2016) and somewhere in the range of 40 and 60 lakh RTI applications are filed each year.[10]

Additionally, this law has inspired both the Centre and the states to enact several similar legislation such as the Public Guarantee of Service to Citizens Act (enforced in many states) and the Whistleblower Protection Act etc.

It strengthens the Central Vigilance Commission and the Comptroller and Auditor General of India as well. It has also led to the discovery of many scandals in the public sector, for instance, Adarsh Society scam, 2G scam, Commonwealth Games Scam among others.

It’s All Downhill From Here: Weakening of the Right to Information

The RTI Act is one of the best transparency laws promulgated by Parliament. Despite certain flaws in the implementation of the Act including deliberate delays and half-hearted answers, the Act warranted accountability without major executive meddling. 

The RTI Act 2005 has been slowly weakened by unwarranted amendment, unnecessary executive interference and restrictive judicial interpretations.

Ever since its enactment, several attempts have been made to dilute this law and hamper access to information. For instance, many collective endeavours were made to eliminate ‘file noting’ from the domain of the Act in 2006 and again in 2009 to stop ‘vexatious’ and ‘pointless’ RTI questions. But these proposed amendments were dropped because of widespread public resistance.

However, almost after 14 years of the enforcement of the Act, the Central government has finally amended certain essential provisions of the Act in 2019.

While it can’t be denied that even before this amendment there where public officials who tried to deter RTI activists from seeking information. But the recent amendment and several instances this year have truly killed the spirit of the Act as it was envisaged initially.

Moreover, recent developments in the right to information regime also depict a very gloomy picture.

Non-appointment of Information Commissioners; a rising tendency to deny furnish information; the increasing backlog of second appeals; the lackadaisical attitude of Information Commissions especially during the COVID-19 pandemic. Together all these factors have severely affected the efficacy of the principal Act.

RTI (Amendment Act) 2019: Making Transparency Legislation Opaque

On October 24, 2019, the government notified the Right to Information (Amendment) Act 2019.[11]

The 2019 Amendment is fraught with several inconsistencies- the absence of the cogent justifications; public consultation; a failure to address the real lacunae in the RTI institutions; and the un-deliberated hasty passage of the bill in the parliament. These among other unwarranted and alarming episodes have cast a shadow of doubt upon the intention of the government. 

Activists and jurists have opined that these amendments would weaken the Right to Information (RTI) regime. Before diving into the critical analysis of the amendment act, it would be pertinent to highlight its key features to easily draw the contrast between the provisions of the 2005 Act and the 2019 (Amendment) Act.

Tenure of Information Commissioners:

Sections 2(a) and 2(b) of the amendment Act have modified Sections 13(1) and (2) of the principal Act and prescribed that the central government shall determine the tenure of the Central Information Commissioner (CIC) instead of erstwhile fixed tenure of 5 years.

Similarly, Sections 3(a) and (b) of the amendment act altered the Sections 16(1) and 16(b) of the principal Act and the tenure of the State Commissioners has been fixed to be as prescribed by the central government.

Power to Determine Salary, Allowances and Terms of Service:

As per Section 2(c) of the 2019 Amendment, the Central government has given to itself the sole authority to determine the salary, allowances and terms of service of CIC.

In these matters, before the amendment, the status of CIC was equivalent to Election Commissioners. Similarly, Section 3(c) of the Amendment Act has authorized the Central government to determine the salaries, allowances and terms of service of State Information Commissioners which were equivalent to an Election Commissioner for Chief State Information Commissioners and on par with the Chief Secretary of a State for State Information Commissioners.

Rulemaking Power:

By amending Section 27 of the Act, Section 4 of the amendment Act has authorized the Central government with absolute rulemaking power concerning the tenure, terms of service and salary of the Information Commissioners.

Pursuant to amending Section 27 of the RTI Act (amended by 2019 Act), on October 24, 2019, the Central government notified the Right to Information (Term of Office, Salaries, Allowances and Other Terms and Conditions of Service of Chief Information Commissioner, Information Commissioners in the Central Information Commission, State Chief Information Commissioner and State Information Commissioners in the State Information Commission) Rules 2019.

Against all justification and arguments posed by the government for the amendment, the intent to jeopardize the indispensable ingredients of the principal RTI Act can’t be overlooked. Various legal luminaries and human right activists have opined that the amendment Act and its resultant RTI Rules have the potential to endanger the independent and impartial functioning of Information Commissioners.

It is argued that the amendment would adversely affect the salaries, allowances and service conditions of Information Commissioners. A comprehensive rebuttal of all the justifications of the government along with other issues arising on account of this amendment are critically analyzed below:

First, the claim of the government that the 2005 Act was brought in a hurry and without deep-consultation is entirely baseless.

Paradoxically, it is the recent amendment that has been brought without deliberation and has been passed without referring it to the Parliamentary Standing Committees. The government did not even bother to consult with – citizens and the Information Commission – two of the main stakeholders before introducing the bill in the parliament.[12] The government has even violated 2014 Pre-Legislative Policy as the draft bill was introduced without any discussion or consultation.

It is worth mentioning that the 2004 RTI bill contained a provision for the appointment of a Deputy Commissioner who was supposed to act as per the orders of the Central government. At that time, The Parliamentary Standing Committee suggested the removal of that provision as it had the potential to undermine the independent functioning of the Office of Information Commissioner and the same was duly accepted.

Second, the idea that the position of CIC is made equivalent to a Supreme Court judge in terms of salaries and conditions of service has a rationale to be achieved. It provides a sense of freedom to Information Commissioners by not reducing them as mere agents of the governments. It enables them to pass directions to any officer of any rank.[13]

Third, the amendment is also an assault on the federal structure of the country. Before the amendment, state governments were authorized to establish the State Information Commission (SIC)[14] and appoint State Information Commissioners.[15] Additionally, the State Information Commissioner could be removed by the governors on certain grounds and SIC decisions could not be questioned before CIC.

Hence, this institutional framework completely appreciated the essence of the federal structure of the nation. Furthermore, state governments were duty-bound to present an annual report regarding the functioning of the State Information Commissioner in the assembly. In light of this report, the state legislature assesses the performance of the Information Commissioners. Now, with this amendment, the State Information Commissioner would no longer remain responsible to the state legislature.

Additionally, prior to the amendment, a three members panel comprising the Prime Minister, leader of the largest opposition party in Lok Sabha and a Cabinet minister (nominated by the Prime Minister) used to appoint the Central Information Commissioner and the Information Commissioner.

In the same way, a three members panel consists of the Chief Minister, the leader of the largest opposition party in the assembly and a state Cabinet Minister (chosen by the Chief Minister) used to appoint the State Chief Information Commissioners and State Information Commissioners.

But, the amendment has abrogated the power of states in the appointment of Information Commissioners. It is to be noted that Sections 3 and 4 of the amendment Act authorize the Central government to determine the tenure, salaries and service conditions of State Information Commissioners. This means that the Central government would encroach into the state governments’ domain.

Needless to say, this is a glare violation of the concept of federalism which is an essential component of ‘the Basic Structure’ of the Indian constitution.[16]

Fourth, the free flow of information and dialogue is very essential for any vibrant democratic system. It makes citizens aware of the functioning of the government and fosters the ideals of participatory democracy. It must be noticed that the 2019 Act circuitously hinders the free flow of information to weaken the office of Information Commissioners. Hence, this amendment appears to be violative of the foundational principles of democracy. Thus, again by its design is inflicting upon the Basic Structure.

Fifth, it is argued that the bodies established under the RTI Act are statutory bodies. Hence, they cannot be equated with the bodies established by the expressed provisions of the constitution, such as Election Commissioner. But, it must be noticed that the independence of any institution is necessary for its efficient functioning. ‘Statutory or constitutional independence is a pre-requisite’ for the smooth working of statutory bodies.

Although the RTI Act 2005 is a statute, we cannot ignore the fact that it paves way for the effective realization of the Fundamental Right to Freedom of Speech and Expression.

All the provisions of the Act covertly or overtly are intended to promote and preserve the Fundamental Right to Information. Hence, making alterations in the core provisions of the Act is nothing but an impediment in the effective enjoyment of a fundamental right. Consequently, brushing away the significance of the Act, by stating that it’s merely a statute, is not a cogent argument.[17]

The Supreme Court has also emphasized the fact that the Fundamental Right to Information stems from Art. 19(1)(a) and the same can be traced back to before the time of the enactment of RTI Act. Therefore, the Right to Information is a constitutionally guaranteed right and not merely a statutory right.[18]

It is also to be noticed that the constitutional guarantee of the fundamental rights also encompasses all those ancillary and incidental rights which are necessary for the effectuation of such fundamental rights in an effective manner.

Sixth, many fundamental rights are ‘positive’ as well as ‘negative’ rights, as the Right to Privacy and the Right to Equality.[19] More lucidly, negative rights are those rights which put an end to the state interference and positive rights are those rights which mandate the states to take affirmative actions and create such conditions in which such rights can be realized.

Needless to say, the RTI Act is positive legislation and any amendment which destroys its real character can be deemed as an encroachment on the fundamental right.

Seventh, the amendment contradicts the statement of objects and reasons of the RTI Act. It must be noticed that the apex court has time and again observed that to declare an amendment ultra vires the parent Statute, the same needs to fall under the following circumstances–

  •   In case, the amendment frustrates the object of the parent Act;
  •   if the amendment suffers from manifest arbitrariness;
  •   if the amendment goes against the spirit of the statement of objects, reasons and scheme of the Act;
  •   if the amendment violates any Fundamental Right enshrined under part 3 of the constitution of India.

Needless to emphasize, the amendment has the potential to frustrate the object of the Act to make the Office of Information Commissioners redundant.

After analysing the aforementioned arguments, certain points become evident which delineate why this amendment is mala-fide and based on extraneous considerations.

The whole rationale behind declaring the amendment unnecessary as well as unconstitutional is recapitulated below:

  • The Right to Information is a fundamental right;
  • The impugned amendment is mala-fide and based on extraneous consideration as it is an assault on the authorities given under the parent act and renders them ineffective;
  • The said amendment has no rational nexus with the object of the Act and it attempts to dilute the constitutionally guaranteed Right to Information;
  • The said amendment is arbitrary and it is a barefaced example of non-application of mind;
  •  The impugned amendment goes contrary to the orders, directions and laws passed by the Supreme Court;
  • It violates the federal structure of the country;
  • It’s an encroachment on the foundational principles of democracy.

 

Killing the Spirit of RTI Regime: Events From 2020

Fifteen years after the RTI Act came into effect, due to various unwarranted judicial interpretations and legislative transmutations, the RTI Act is dying a slow but certain death.

The Satark Nagrik Sangathan (SSN) and the Centre for Equity Studies published a report which revealed that more than 2.2 lakh cases are pending at the Central and State Information Commissions.[20]

At the current rate of disposal, the Odisha Commission would take over seven years to dispose of all pending applications and CIC would take more than two years. The study also highlighted that government authorities rarely face any punishment or penalty for flouting the law.

Examining data from 16 commissions in 2019-20, the study highlighted that penalties were imposed in just 2.2% of cases that were disposed of.

From April 2019 to July 2020, approximately 90,000 cases were disposed of by sixteen commissions. Out of these cases, show-cause notices were issued in approximately 15,700 cases, and in only 1,995 cases penalties were imposed.[21]

Non-imposition of penalties in desired matters gives a signal to public officers that the violation of the law will not fetch any severe consequence. In the long run, the feebleness of the Act will destroy its effectiveness.

Additionally, the crusade for transparency and accountability is suffering since second appeals and grievances are moping in the Information Commissions for uncertain periods. The commissions, owing to either pendency or vacancy, are not adhering to time limits. Approximately 40,000-second appeals and complaints are pending at the CIC and around two lakh on the State ICs.[22]

It must be noted here that the Commissions are under statutory commitment to deliver orders within 45 days.

In 2015, the Karnataka High Court stated that since there is a period prescribed for deciding the first appeal, it is reasonable to presume that a similar time limit would apply insofar as deciding the subsequent appeal. Otherwise, the object of the Act will be frustrated if the authorities would defer the hearing and decision of a second appeal for an indefinite period.[23]

It should be noted, that the CIC has been working without its head or Chief Information Commissioner for multiple times in the past six years.[24] The same is listed as follows,

  • Bimal Julka retired on August 26, 2020, no chief designated as of now;
  • Sudhir Bhargav retired January 11, 2020, no chief March 6, 2020;
  • R.K. Mathur retired on November 24, 2018, no chief till January 1, 2019;
  • Vijay Sharma retired on December 1, 2015, no chief till January 4, 2016;
  • Rajiv Mathur retired on August 22, 2014, no chief till June 10, 2015.

It would be apt to mention that it violates the mandate of the Anjali Bhardwaj Judgement in which the Supreme court observed that the process for filling up of a particular vacancy should be started one to two months before the date on which the vacancy is probably going to occur so that there isn’t a lot of gap between the occurrence of a vacancy and fresh appointment.[25]

Even during the Covid-19 pandemic, only 10 out of 29 Information Commissions functioned and even these commissions were able to hear very few appeals owing to technical glitches.[26]

Another bizarre strategy adopted by the governments to forestall outflow of the information under the RTI Act is to appoint previous government officers as Information Commissioners.

The 2018-19 SSN-CES ‘Report Card’ revealed that since the inception of the Act, 58 per cent Information Commissioners and 83 per cent of Chief Information Commissioners appointed during this period were former government servants.[27] 

It is also to be noted that despite 15 years of the enactment of the Act, many Information Commissions do not function transparently. As they tend to provide very less information about their orders and appeals which make an evaluation of their work difficult. In fact, Bihar Information Commission does not even have its own website.[28]

There is also the issue of threat and acts of viciousness against RTI activists. Over the past 15 years, at least 86 RTI applicants have been murdered, 175 applicants have been severely attacked, more than 184 applicants have been harassed and seven applicants committed suicide.[29] The trend is only becoming worse with each passing year. The access through social media platforms has given partisan trolls a free pass to attack and harass RTI activists at their convenience.

In 2020, there have been instances where personal details of RTI applicants were posted on the public domain. This year, the Ministry of Information and Broadcasting (I &B) displayed personal details of around 4000 RTI activists, who had sought information, on its website. Among others, personal information of former journalist and RTI activist Saket Gokhale was also put up on the website. The former journalist alleged that he was harassed and abused and even got death threats because of this fiasco.

Thereafter, Gokhale filed a petition in Bombay High Court.[30] The court observed that it was a massive violation of the Right to Privacy of RTI applicants and could well affect future applicants. The court directed the Secretary of the Ministry of I & B to conduct a probe in the matter. Given what has happened to RTI applicants in the past, it won’t be wrong to say that many of them lead a precarious life. This threat has become more pertinent as there has been a surge in executive power.

In these challenging times, the transparency watchdogs are supposed to perform their obligations more efficiently, but they have miserably failed to discharge their duty.

Owing to the unprecedented COVID-19 pandemic, the need to investigate the working of Information Commissions currently is even more significant. Especially since relief and welfare programs are funded through public money.

Needless to mention, the poor and the marginalized are utmost affected by the pandemic and depend solely upon the benefits from government programs. If access to relevant information is denied to citizens during the pandemic, the framework of socio-economic justice and transparency will rupture.

On March 29, after the imposition of lockdown, an RTI application was filed seeking information about the PM CARES Fund, which was established to collect financial aid to combat the Covid-19 pandemic.

However, it was rejected by the Prime Minister Office (PMO) contending that ‘PM CARES FUND’ is not a ‘public authority’ as per Section 2(H) of the Act.[31] Citing the same reason, in October, the PMO refused to provide any information about the Prime Minister’s National Relief Fund.[32]

Without going into the legalities, it is evident that if any documents about the PM CARES Fund are held by the PMO, it’s entirely unethical. Only records held by the PMO were sought under the aforementioned application, even then, the government has outrightly dismissed it.

Similarly, on December 21 this year, the CIC declared that individuals from political parties, receiving contributions under the electoral bonds, will remain undisclosed. As the same is not in the ‘public interest’, therefore, the RTI applications seeking information regarding these donations were dismissed.

It would be apt to note that that Election Commission of India (ECI) has time and again expressed its concern regarding the anonymous nature of bonds. Additionally, the ECI has maintained that endorsing such a framework is a retrograde step with regards to transparency of donations and also urged its withdrawal.

Amidst all this, another blow that hit right at the heart of the RTI Act came from the Supreme court. In Chief Information Commissioner vs High Court Of Gujarat 2020, the Supreme Court narrowed down the scope of the RTI Act even further. It held that High Court rules which digress from the RTI Act could not be declared inconsistent with the law if they have a provision to furnish information.[33]

It should be noted here that the RTI Act has a non-obstante clause in Section 22. This section guarantees that different laws and requirements should not be utilized to suppress information to the citizens. The non-obstacle clause in Section 22 reads as follows

“The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

Needless to emphasize, the  2020 Judgement by the apex court goes against the spirit of the Act and dismantles the mandate of Section 22. It is apprehended that the Judgement will permit different authorities to embrace comparative Rules and smother the RTI Act even further.

It is clear as cloudless sky that all these recent events cast a shadow of doubt on the initial prospects of the right to information regime. The Act that began as a sunshine-legislation is slowly being pushed into the realm of secrecy.  Thus, there is a pressing need to address these events, especially by the judiciary, which seems to have tended towards the executive, parroting non-disclosure of information.

The RTI Act is one of the best transparency laws promulgated by Parliament but has continuously been threatened by a series of judicial interpretations and legislative transmutations.

Shailesh Gandhi, the former Central Information Commissioner, remarked that if the judiciary continues to narrow down the ambit of this Act and does not safeguard its spirit, this great law may become ‘Right to Denial of Information’.[34] Resulting in a ‘sad regression for democracy’.

Suggestions and Recommendations: Road to Transparency

An RTI application is the cheapest and one of the most effective weapons to ensure accountability from the government. In a democracy, the government is the only trustee of information and all this information lies with the people who are the real owners. Being a trustee, the government has an obligation to manage and share information in the public interest.

The conferral of the power on the Central government to decide the tenure, salaries and conditions of service of Information Commissioners is a retrograde step as well as a democratic disaster. Since the Information Commissioners are the ones responsible for proper implementation of the Act and any kind of their dependency upon the government will surely snatch their independence.

Only upright, independent, competent and bold Information Commissioners can discharge their duty intrepidly and uphold the dignity of the institution.[35] But it’s hard to say if the same can be considered as a norm.

It is worth mentioning that a petition has been filed in the Supreme Court challenging the constitutionality of the 2019 (Amendment) Act which is still pending in the court.[36]

It is settled law that the court has authority to strike down the whole legislation or its certain part if the Act or its Amendment falls short to fulfil the constitutional obligation to bring it in compliance with constitutional commitments.

The classic example on this point is the Aadhaar Judgement. Where the court struck down certain sections to make the legislation in consonance with the Right to Privacy.[37] Keeping with this line of argument, even in the recent Amendment to the RTI Act, it can be said that the Amendment Act undermines the RTI regime and weakens the position of Information Commissioners. And the same would eventually lead to the denial or infringement of the Right to Information.

Therefore, the court has the constitutional authority as well as the obligation to declare such an amendment null and void.

Additionally, Information Commissions are required to function as both an adjudicator and a regulator. If the commissions are to fulfil the objectives of the Act to empower the common man, the process of adjudication has to be made more simple and convenient for information seekers and the second appeal must be disposed of within a time limit.

It is also necessary to provide Basic training of Public Information Officers (PIO), Assistant PIOs and the appellate authorities.

Furthermore, instead of appointing only former government servants as  Information Commissioners, the governments should endeavour to appoint RTI activists, human right activists or academicians. So that the effectivity and diversity of the institution can be maintained.

There is also a need for a robust mechanism to ensure that RTI applicants should not be harassed or assaulted. Moreover, bearing in mind the importance of public participation in democratic governance, the Information Commissions, as well as the judiciary, should liberally interpret the provision of the RTI Act and provide the required details to ensure the free flow of information.

It is crystal-clear that no information means no thought, no dialogue means no reaction and in the absence of public activities, democracy turns into tyranny.  The need of the hour is to promote the free flow of information to limit tyrannical tendencies and reinforce democratic ideals.

Endnotes

[1] [Public Concern for Governance Trust V. State of Maharashtra, 2019 SCC OnLine Bom 5303.

[2] 1975 AIR 865.

[3] Anjali Bhadrwaj V. Union of India, 2019 SCC Online SC 205.

[4] 1973 AIR 106.

[5] 1975 AIR 865.

[6] S.P. Gupta V. the President of India, A.I.R. 1982 S.C. 149.

[7] R.P. Limited V. Proprietors, Indian Express Newspapers, Bombay, Pvt. Ltd. 1989 AIR 190.

[8] AIR 2002 SC 2112.

[9] CPIO Supreme Court of India V. Subhash Chandra Agarwal 2019 SCC Online SC 1459.

[10] Shemin Joy, Over 3.02 crore RTI applications filed in last 15 years, Deccan Herald,  (Oct. 11, 2019) https://www.deccanherald.com/national/over-302-crore-rti-applications-filed-in-last-15-years-767714.html

[11] The Right to Information (Amendment) Act 2019, (Act 24 of 2019).

[12] Priscilla Jebaraj, CIC was not consulted on RTI amendment Act, The Hindu, (Nov. 28, 2019), https://www.thehindu.com/news/national/cic-was-not-consulted-on-rti-amendment-act/article30099380.ece

[13] M Sridhar Acharyulu & Yashovardhan Azad, RTI Amendment: Breaking the Backbone of Information Commissioners, Bar and Bench, (Jul. 23, 2019), https://www.barandbench.com/columns/rti-amendment-breaking-the-backbone-of-information-commissioners

[14] The Right to Information Act, 2005 (Act 22 of 2005) S. 15. 

[15] Ibid s. 15(3).

[16] S. R. Bommai V. Union of India AIR 1994 SC 1918.

[17]   Gautam Bhatia, The Amendments to the Right to Information Act are Unconstitutional, Indian Constitutional Law and Philosophy, (Jul. 25, 2019), https://indconlawphil.wordpress.com/2019/07/25/the-amendments-to-the-right-to-information-act-are-unconstitutional/

[18] CPIO Supreme Court of India V. Subhash Chandra Agarwal 2019 SCC Online SC 1459.

[19] Justice K. S. Puttaswamy V. Union of India 2018 SCC Online SC 1642.

[20] Status of Information Commissions in India during Covid-19 Crisis, Satark Nagrik Sangathan & Centre for Equity Studies, http://snsindia.org/wp-content/uploads/2020/05/IC-Covid19.pdf

[21] Ibid.

[22] M. Sridhar Acharyulu, It’s Been 15 Years Since RTI Act Was Passed, But Is it Really Working?, The Wire, (Oct. 19, 2020) https://thewire.in/rights/rti-act-15-years

[23] Jayaprakash Reddy V. Central Information Commission, WRIT PETITION Nos.28310-28311 AND 45540-4 (2015).

[24] Supra 22.

[25] Anjali Bhadrwaj V. Union of India, 2019 SCC Online SC 205.

[26] Supra 20.

[27] Maneesh Chhibber, In 15 years, RTI has gone from Indian citizens’ most powerful tool to an Act on life support, The Print, (Jun. 24, 2020) https://theprint.in/opinion/in-15-years-rti-has-gone-from-indian-citizens-most-powerful-tool-to-an-act-on-life-support/447507/ 

[28] Farhan Ahmed and Anushka, 15 years of Right to Information, The Daily Guardian, (Nov. 2, 2020) https://thedailyguardian.com/15-years-of-right-to-information/

[29] Supra 26.

[30] Saket S Gokhale v. Union of India, WRIT PETITION (L) NO. 2678 OF 2020. 

[31] Priscilla Jebaraj, Coronavirus, PM CARES is not a public authority under RTI Act: PMO, The Hindu, (May 30, 2020) https://www.thehindu.com/news/national/coronavirus-pm-cares-is-not-a-public-authority-under-rti-act-pmo/article31712146.ece.

[32] Now, PMO says Prime Minister’s National Relief Fund not a ‘public authority’ under RTI Act, National Herald India, (Oct. 23, 2020) https://www.nationalheraldindia.com/india/now-pmo-says-prime-ministers-national-relief-fund-not-a-public-authority-under-rti-act.

[33] Civil Appeal nos. 1966-1967 of 2020.

[34] Shailesh Gandhi, Will the Right to Information Act Become the Right to Denial of Information Act? The Leaflet (Dec. 9, 2020) https://www.theleaflet.in/will-the-right-to-information-act-become-the-right-to-denial-of-information-act/#:~:text=The%20law%20has%20strong%20provisions,of%20Section%208%20or%209.&text=Denial%20of%20information%20should%20be%20rare

[35] Yashovardhan Azad and M Sridhar Acharyulu, RTI: A Bill That May Kill a Right, Hindustan Times, (Jul. 22, 2019), https://www.hindustantimes.com/analysis/rti-a-bill-that-may-kill-a-right/story-EkYRO9yihrPgOoexQJaCGJ.html

[36]   SC notice in Jairam Ramesh PIL challenging constitutionality of 2019 RTI (Amendment) Act and Rules, Bar and Bench, (Jan. 31, 2020), https://www.barandbench.com/news/litigation/sc-notice-in-pil-by-jairam-ramesh-challenging-constitutionality-of-2019-rti-amendment-act-and-rti-rules

[37] Justice K. S. Puttaswamy V. Union of India 2018 SCC Online SC 1642.

 

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