Right to Information: 2002 to 2020

Imagine a government accounting for every activity and every public authority making the records public, obviously ones not compromising national interest. What would you call a country where the functioning of the Government is opaque and the public authorities refuse to accept their accountability to the public? As of Global scenario, 93 countries have information law or a decree (actionable), or provisions in their constitution.[1] The right of access to official information is now protected by the constitutions of 59 countries. At least 53, and arguably all 59 expressly guarantee a “right” to “information” or “documents,” or else impose an obligation on the government to make information available to the public.[2]

It may surprise you that some African countries like Nigeria, South Sudan, Liberia which are placed at top of the terrorism index have actionable RTI decree or regulation. Normally these countries are always at a high risk of armed rebellion or national security threat yet the government provides for the right of its citizens to have information about working of the public authorities. Be it developed European countries such as France, Germany, Italy and Hungary or be it Asian countries like Thailand or Vietnam, once and for all, by decree or by the constitution, they grant their citizens right to information whereas in countries like Belgium and Austria it is more of a duty imposed on the government rather than a right of an individual.

The Declaration in Universal Human Rights through its 19th article says that every human being has the freedom to form an opinion and interact and exchange ideas. It guarantees through the same article the right to inform or receive information of all kinds using whatever means he desires. The colonial Official Secrets Act, 1923 of India haunts Indians with Official secrecy of public information.

Article 5 of his possession or control any note, document or information wilfully communicates on any person other than a person to whom he is authorized to communicate, it shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.[3] The Freedom to Information Act, 2002 was passed amidst struggle and sporadic Dharna by the people of a village in Rajasthan. The poor people had demanded transparency and accountability along with the progress of work in their village. They sat on 40 days Dharna and also went to courts. Simultaneously appeal to amend The Colonial Official Secrets Act, 1923 was made by the public.

The bill was drafted in 1998 under pressure however final push was from the supreme court in 2002 when it demanded that the bill should be passed before the next hearing which was scheduled in January 2003. This way the Freedom of Information Act, 2002 came into force. The government of United Progressive Alliance under the leadership of Dr Man Mohan Singh redrafted it and introduced the Right to Information bill, 2005 which was passed in both the houses and received the assent of President in June 2005. This way the RTI act, 2005 came into force.

The Right to Information Act, 2005 contains 31 Articles and 2 schedules.[4] It enables the citizens (not the NRIs) to demand the public authorities of their records and accountability. The public authority has been defined under section 2(h) of the act. It defines “public authority” means any authority or body or institution of self-government established or constituted — by or under the Constitution; or by any other law made by Parliament; or by any other law made by State Legislature; or by a notification issued or order made by the appropriate Government.[5] The authorities and offices that come under the purview of Public Authorities have been a controversial matter.

We have often seen instances when extensive use of this act led to ruckus and fear among officers in taking decisions. A list of cases can be referred to see the guidelines issued by the Supreme Court to control the extensiveness of this act. In the case of Girish Ramchandra Deshpande vs Central Information Commissioner[6], it was observed by the honourable supreme court that under section 8(1)(j) of the act, income tax disclosures need to be done only when it presupposes large public interest. It was a landmark case which balanced the Right to Privacy under Article 21 and the Right to Information.

In this case, the appellant asked for the assets, gifts given, income tax returns of the defendant. The court observed that declaring the Income-tax returns and other assets is not compulsory if not involves a larger public interest. This case drew the line between the Information that needs to be disclosed and the ones that need not be declared. Disclosures are important but drawing a line between what information needs to be disclosed and what should not be, is important too, believes the author.

2019 has been an important year in the realm of right to information. Two historic events took place. First, the judgment in CJI under RTI case and second amendment sought in the RTI Act, 2005. As of the case, from 2012, when the then activist Subhash Chandra Agrawal filed a petition to bring the supreme court under the ambit of RTI, the supreme court has kept on fighting to prove that transparency does not undermine judicial independence. Activist Subhash Chandra Agrawal had appealed for the declaration of assets of the Supreme court judges which the supreme court refused stating that Office of Chief Justice of India is not under the purview of public authorities.[7]

Further in the case of the CPIO, Supreme Court of India V. Subhash Chandra Agarwal & Anr.[8] appealing to Chief Information Commissioner, Agrawal brought the orders to ask for the declaration the assets. Supreme court appealed against the decision of CIC in the Delhi High Court. After receiving a setback in 2009 it appeared again in the Delhi high court but resulted in same. Being one of the rare cases where the Supreme court has approached the Supreme Court to seek relief, a constitutional bench was to be formed.

It took the Supreme court 8 years to form the bench and finally in 2019 Justice Ranjan Gogoi formed the bench. Now the bench upheld the verdicts given by the Delhi High Court in 2009 and 2010. Interestingly, only 07 of the 31 judges of Supreme Court had revealed their assets, although now it has been mandated for the judges to declare their assets to the office of Chief Justice of India.

Second being the Modi government amending section 13, section 16, and section 27 of the act which hampers the autonomy of Chief Information Commission.[9] This amendment is very important as it amends some fundamental sections of the act. Before the amendment, salary and term of the Central Chief Information Commissioner, information commissioners, state-level Chief Information Commissioners and Information commissioners were independent and in no way related to the central government.

This was to ensure fairness and proper transparency along with the autonomy of the statutory body. By amending the above-stated sections, now the central government will decide salary, pension and tenure of both the state and Central level Chief Information Commissioner and Information commissioners. This is surely going to affect the independence of the statutory body. When asked about the same government pointed out the irregularities in the act. Firstly, before the amendment, the decisions of CIC were given the status of Supreme court judgements but could be challenged in High court. This idea is wrong as it is going against the hierarchy of courts.

Decisions of Supreme court cannot be challenged in a high court so ideally, judgements of CIC should be binding over the high courts too. Secondly, regarding the salaries of the Chief Information Commissioner and the information commissioners, the basis of the salary structure was challenged by the government. Prima facie the salary of Chief Information commissioner was to be same as of Chief Election Commissioner but the problem was the idea upon which this rule was made.

The question was where did this come from? Election Commission is a constitutional body enshrined in the Indian constitution in article 324 whereas Information commission is a statutory body hence they cannot be compared for salaries, also the work is different. Government arguing the following things amended the Right to Information Act, 2005. To conclude, the arguments may be strong but the solution of giving the power to decide the salary and tenure of Information commissioners and the Chief Information Commissioner to central government will result in weakening of the body and stronghold of government over the body believes the author. 

[1] Countries with ATI laws, right2info, https://www.right2info.org/resources/publications/countries-with-ati-laws-1/view

[2] Constitutional protections, Right2info, Jan 09 2012, 0845 hrs, https://www.right2info.org/constitutional-protections

[3] Dr GC Banik, Right to Information Act, ABCI, http://www.abci.in/article-right-of-information-act.htm

[4] THE RIGHT TO INFORMATION ACT, 2005, No. 22 of 2005, Acts of Parliament, 2005 (India)

[5] Ibid

[6] SLP(C) No. 27734 of 2012 dated 03/10/2012

[7] Prabhash Dutta, CJI under RTI Act, India Today, Nov 13 2019, https://www.indiatoday.in/news-analysis/story/cji-under-rti-act-a-rare-case-where-supreme-court-ruled-against-itself-1618528-2019-11-13

[8] The CPIO, Supreme Court of India V. Subhash Chandra Agarwal & Anr W.P. (C) 288/2009, 2 September 2009, High Court of Delhi (Appellate)

[9] THE RIGHT TO INFORMATION (AMENDMENT) ACT, 2019 NO. 24 OF 2019, Act of Parliament, 1st August 2019

Aryan Anand from Chanakya National Law University, Patna

Aryan is sports enthusiast who dreams to serve the Indian Air Force.

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