The Right to Information Act, the historic legislation of India, was introduced as the Right to Information Bill in the Lok Sabha on 23 December 2004[1], was passed by the Parliament post deliberation on 12 May 2005[2], and ultimately received the assent of the President on 15 June 2005[3]. It recognised the democratically significant right of the citizens to ‘know’ and remain ‘informed’ about the governance and transactions of public authorities. Placing it in the context of the democratic governance model bolsters its importance, as citizens’ awareness about the purpose and effectiveness of public authorities is indispensable in articulating public opinion – the operating fuel of democracy. Further, the importance of the culture of openness in public authorities cultivated through the recognition of such a right cannot be overemphasised in the case of democratic governance[4]. In addition, the idea of the right to information is deeply interconnected with the two climacteric pillars of constitutional democracy – transparency and accountability. In fact, bolstering these democratic ideals is counted as one of the primary purposes, as is evident from the long title of the Act[5].
The perfect compatibility and affinity between the idea of the Right to Information Act and the concept of constitutional democracy have not effectively transcended into perfect transparency of accountability of public authorities. Hence, while acknowledging the improvement, it is necessary to critically examine whether its theoretical beauty has engendered what it had claimed to bring.
Before delving into an active dissection of the Right to Information Act, it is necessary to explicate the significance of information and public opinion in a democracy.
1. Information, Public Opinion and Democracy
Democracy is a form of government fuelled by public opinion, formed through deliberation by right-minded members of society – the ultimate end is general welfare. Hence, it need not always reflect the majority opinion[6].
In such a setting, where public opinion is sacrosanct, Francis Bacon’s words, ‘information is power’ is of infinite pertinence[7]. The right to access public information is essential for the apposite formulation of public opinion. In the process of public opinion formation, which is necessarily a posteriori, material information about the actual working of the government is indispensable[8]. When there is a notion that the government is accountable to the people and that there is no unreasonable inclination to secrecy by the government in public transactions, then the propensity of the public to participate in decision-making will be naturally high. There are several scholars to base oneself on when arguing against secrecy in public transactions. Withholding information or maintaining secrecy leads to the concentration of information in the hands of a few, and this goes against the basic supposition of democracy – an active and well-informed citizenry[9]. As argued by Benjamin Constant in ‘Principios de Politica’, secrecy should not be portrayed as the norm to mislead the ignorant; secrecy is maintainable only in ‘necessary, extraordinary and transitional circumstances’ [10].
The significance of information, and hence the citizens’ right to information, cannot be overemphasised in a constitutional democracy[11]. The next logical step is to analyse whether the Right to Information Act, 2005 has functioned efficiently to match the significance of the idea that it enshrines. However, before this exercise, it is necessary to fully explicate the context regarding the evolution of the right to information regime in India.
2. The Evolution of Right to Information Regime in India
The origin of the concept of the ‘right to information’ can be traced back to Sweden’s Freedom of the Press Act of 1776. Initially, the law was introduced to abolish political censorship and ensure that everyone has access to public documents[12]. Almost two centuries and three decades later, India jumped onto the bandwagon and recognised her citizens’ right to information. However, the point of origin of the right to information regime in India cannot be objectively placed in the year 2005. Instead, discussions on recognising this climacteric right of citizens had begun even before.
2.1. The Great Movement behind the Right to Information Act, 2005
Generally, the idea of a new legislation is inspired by either of the following sources:
- The ruling party’s policy,
- Recommendation of expert-led committees or reports of the Law Commission of India,
- Pressure from interest groups and other public organisations or
- Judgments of courts
In the case of the RTI Act, the main provocation can be attributed to the third source, the pressure from interest groups. The origin of the RTI Act in India is deeply associated with the movement led by the Mazdoor Kisan Shakti Sangathan (MKSS), National Campaign for People’s Right to Information (NCPRI), Press Council of India (PCI) and a few others.
In 1990, Aruna Roy, Nikhil Dey, and Shankar Singh founded the MKSS in Rajasthan to promote participatory democracy[13]. They organised public hearings, in which people came together to verify and audit the work of the panchayat through informally procured testimonies; the first such hearing was organised in 1994, marking the starting point of the movement for the right to information. In 1996, NCPRI was launched with the aim of drafting an RTI bill for central legislation. As the movement spread and gained popularity, several states started introducing their own legislation to recognise this right. Finally, in 2000, the Freedom of Information Bill was introduced, which later became the Freedom of Information Act, 2002. However, it was not notified (and hence, not enforced) due to the strong opposition that it faced – the legislation was weak and mired with loopholes that rendered it futile[14]. This gave way to the Right to Information Act, 2005.
2.2. The Judiciary’s role in nurturing the Right to Information Regime in India
While the public movement played an important role, the influence of the Supreme Court’s judgements cannot be overlooked here[15]. Even before the MKSS mustered enough support for the recognition of the right to information, the Supreme Court had, through its judgement in State of U.P. v. Raj Narain (1975), mooted the concept of the right to information to the Indian legal landscape. In this case, the Supreme Court creatively interpreted Article 19(1)(a) to hold that the right to know is implicit in the fundamental right to freedom of speech and expression.
Later, in Union of India v. Association for Democratic Reforms (2002), the Supreme Court reiterated its earlier stance by emphasising that the right to information is a derivation of the right to freedom of speech and expression and, hence, must be respected. The Supreme Court held that the Election Commission is duty-bound to respect citizens’ right to know and hence disclose the public background information of candidates contesting elections, including their past and pending criminal charges, educational background and so on[16]. After enacting the Right to Information Act, we have seen the scope of it broadening through various judicial interpretations. In 2009, the Delhi HC held that the post of Chief Justice of India per se is a public authority and hence comes under the ambit of the RTI Act[17]. This was affirmed by the Supreme Court in the Supreme Court of India v. Subhash Chandra Agarwal (2020)[18]. In 2013, the Central Information Commission (constituted under Sec.12(1) of the Right to Information Act), in its landmark verdict (Subhash Chandra Agarwal v Indian National Congress & Ors.), held that major political parties, due to their public character and the nature of their duties, come under the ambit of the RTI Act[19].
Having comprehensively dabbled through the evolution of the RTI Act in India, the next question to be addressed is about the implementation of this legislation and the analysis of its functioning so far.
3. The Right to Information Act: Implementation and Impact
3.1. Notable Features of the RTI Act
One of the most critical features of the Right to Information Act is the norm it sets – it entrenches the democratic ideal of transparency as the rule while rendering the excuse of secrecy as an exception. It does so by harmonising the conflict between the need for secrecy for proper administration and the ‘paramountcy of democratic ideal’ [20]. Further, it is designed in a ‘purpose-blind’ manner (the purpose for which the information sought is irrelevant in exercising one’s right under the statute) and is procedurally convenient[21]. Also, it established a uniform and more affordable system of retrieving information by replacing rules drafted by individual public institutions for this purpose[22].
A feature that sets the RTI Act unique from similar laws in other countries is the way it was phrased and materialised. In India, citizens have the ‘right’ to access information, while in many other countries, they only have the ‘freedom’ to access information[23]. According to Sec.3 of the RTI Act, ‘all citizens shall have the right to information’ [24]. While right is a legal entitlement, freedom is just the absence of constraints [25]; the subtle difference contributes significantly to how this instrument of accessing information is perceived. Moreover, with time, the scope of Sec.3 has also widened. For example, in April 2023, while reprimanding the order of the Central Information Commission barring non-citizens from this right, the Delhi High Court held that Sec.3 should be interpreted as implying a positive recognition of the rights of the citizens and not as a bar on disclosure of information to non-citizens[26]. Further, to the advantage of the information-seekers, the statute defines the term’ information’ expansively and inclusively[27]. Also, Sec.7(1) places a time limit on responding to the request for information.
The right to information is not absolute – same as how the right to freedom of speech and expression is not absolute. Sec.8 of the RTI Act lays down exemptions to this right[28]. However, a point to be noted here is that the provision for exemption is phrased in a manner that does not bar the public information officer from providing information; instead, it only revokes the obligation to provide information. In addition, the exemptions are not absolute; Sec.8(2) subjects all exemptions to the factor of public interest[29]. To ensure sincere implementation, the Central Information Commission and State Information Commissions (statutory bodies established by Sec.12 and Sec.15 of the Act, respectively) can impose a fine of up to Rs.25,000 on government officials for deficiencies in the implementation of the Act.
Over the years, the RTI Act has become a powerful tool for journalists and activists. It has led to the development of a specialised set of activists called the ‘RTI Activists’ who are known for keeping the governments at various levels on their toes; however, in this process, they have been at the receiving end of state oppression, too[30]. If one looks into the past, there are various examples of how the RTI Act has been used as an effective tool by these activists. From the Adarsh Housing Society Scam, the 2G Spectrum Scam to the Common Wealth Games Scam- in the revelation of these scams, the source can be traced back to the RTI Act and the dedication of RTI Activists[31].
However, despite these remarkable features of the Act and its promising role in fighting corruption and secrecy, certain factors have tainted its effectiveness.
3.2. Hurdles in the Implementation of the RTI Act
The primary hurdle in the proper implementation of the Act is the negative mindset of the government. In fact, the weakening of the RTI Act is influenced less by changes in the text of the Act than by how government officials discharge their duty[32]. In several instances, the RTI regime has also been negatively affected by subordinate rules drafted by the central and state governments by virtue of the power delegated to them under Sec.27 of the Act. The differences in state-level rules have betrayed the intention of the Act to create a unified system. For example, in Tamil Nadu, Indian Postal Orders are not accepted as a mode of payment for the application fee. The mode varies across the state, creating confusion among people[33].
As mentioned before, several activists have used the RTI Act deftly to uncover corruption and malpractices at various government institutions. As a result, governments have come to see them as ‘enemies’ and ‘threats’ as barriers to their free use of power. A simple Google search will reveal the number of instances in which RTI activists have been harassed and even killed by the state machinery. A peek into the data in the ‘Hall of Shame’[34], compiled by the Commonwealth Human Rights Initiative (CHRI), will reveal how grave the situation is.
Apart from the above specific issues that confront the Act, the general issue of awareness that plagues many other laws in India has posed a major hurdle to the effective functioning of the RTI Act[35]. To battle the so-called issue of ‘frivolous applications’, imposing restrictions on the right of the citizens is not the apposite solution. For this, along with increasing awareness of the existence of such a crucial right, governments must also ensure that they recruit a sufficient number of officials in each public institution to cater to the needs of a large number of RTI applications. Such a step is equally vital for addressing the issue of slow rate of disposal[36].
Conclusion
In 2005, the Right to Information Act was brought in as the harbinger of transparency and accountability in India. By entrenching the ideals of transparency and accountability that lie at the heart of constitutional democracy, the RTI Act has undoubtedly helped India move closer to a better democratic paradigm. In some scenarios, administrative efficiency calls for secrecy. The Act addresses this issue by harmonising the conflict between openness and the need for secrecy. This RTI regime in India has dramatically aided in moulding public opinion by providing its basis, that is, information. Behind the beauty of the Act is a long struggle led by various groups whose efforts cannot go unrecognised. Also, over the years, the scope of the Act has widened to cover various contingencies and situations, thanks to creative and purposive judicial interpretation. Despite the glory surrounding the Act, it has faced several challenges that have tainted its effectiveness. Several factors, such as increasing awareness, ensuring the protection of RTI activists, periodic recruitment to different posts in government institutions and ensuring uniformity in state-level rules, will go a long way in addressing the deficiencies of the RTI Act.
[1] The Right to Information Bill: As introduced in the Lok Sabha, 2004, Bill No.107 0f 2004.
[2] The Right to Information Bill: As passed by the Parliament, 2004, Bill No.107 of 2004.
[3] Ministry of Law and Justice (Legislative Department), Notification concerning Presidential assent for the Right to Information Act, 2005, REG. NO. DL—(N)04/0007/2003–05
[4] Barack Obama, Transparency and Open Government National Archives and Records Administration (2009), https://obamawhitehouse.archives.gov/the-press-office/transparency-and-open-government (last visited Dec 8, 2023).
[5] The Right to Information Act, 2005, No.22, Acts of Parliament, 2005
[6] Ram Prakash Sharma, Democracy and Public Opinion in India, 18 The Indian Journal of Political Science 135 (1957).
[7] Anshu Jain, Good Governance and Right to Information: A Perspective, 54 Journal of the Indian Law Institute 506 (2012)
[8] Cristina Hermida del Llano, Public Opinion and Deliberative Democracy, 16 ANNALES UNIVERSITATIS APULENSIS SERIES JURISPRUDENTIA 106 (2013).
[9] Id.
[10] Id.
[11] Namit Sharma v. Union of India, (2013) 1 SCC 745
[12] UCL, Sweden, The Constitution Unit (2018), https://www.ucl.ac.uk/constitution-unit/research/research-archive/foi-archive/international-focus/sweden (last visited Dec 10, 2023).
[13] Struggle for People’s Right to Information – MAZDOOR KISAN SHAKTI SANGATHAN, https://mkssindia.org/struggle-for-peoples-right-to-information/ (last visited Dec 10, 2023).
[14] Id.
[15] Right To Information (Court in Review), Supreme Court Observer, https://www.scobserver.in/journal/right-to-information-court-in-review/ (last visited Dec 11, 2023).
[16] Union of India v Association for Democratic Reforms, 2002 (3) SCR 294.
[17] CPIO, Supreme Court of India v. Subhash Chandra Agarwal, 2009 SCC OnLine Del 2714.
[18] Supreme Court of India v. Subhash Chandra Agarwal, (2020) 5 SCC 481.
[19] Right To Information, supra note 15.
[20] The Right to Information Act, supra note 5.
[21] N Sai Vinod, Attempts to Erode RTI Mechanism, 49 Economic and Political Weekly 30 (2014).
[22] Id.
[23] Anshu Jain, supra note 7.
[24] The Right to Information Act, supra note 5
[25] Leif Wenar, Rights, in The Stanford Encyclopedia of Philosophy (Edward N. Zalta & Uri Nodelman eds., Spring 2023 ed. 2023), https://plato.stanford.edu/archives/spr2023/entries/rights/ (last visited Dec 18, 2023).
[26] A.S. Rawat v. Dawa Tashi, 2023 SCC OnLine Del 1504
[27] Anshu Jain, supra note 7
[28] The Right to Information Act, supra note 5.
[29] Anshu Jain, supra note 7
[30] Divyani Dubey, RTI Anniversary: Multiple Barriers To “Right To Information” Persist in India, (2022), https://www.factchecker.in/data-dive/rti-anniversary-multiple-barriers-to-right-to-information-persist-in-india-838707 (last visited Dec 21, 2023).
[31] Taxmann, Some Interesting Cases Resolved Through RTI, Taxmann Blog (2018), https://www.taxmann.com/post/blog/571/some-interesting-cases-resolved-through-rti/ (last visited Dec 22, 2023).
[32]Aroon Deep, Explained | Has the Right to Information Been Weakened over the Years?, The Hindu, Sep. 1, 2023, https://www.thehindu.com/sci-tech/technology/explained-has-right-to-information-weakened-over-the-years/article67259315.ece (last visited Dec 20, 2023).
[33] Id.
[34] Ajit Mihra, Attacks on RTI Activists in India, http://attacksonrtiusers.org/ (last visited Dec 23, 2023).
[35] Sneha Mahawar, Right to Information Act, 2005, iPleaders (Nov. 5, 2022), https://blog.ipleaders.in/right-to-information-act-2005/ (last visited Dec 23, 2023).
[36] Gaurav Vivek Bhatnagar, As CIC Slams ‘Frivolous’ Applications, RTI Activists Say Proactive Disclosure Is Solution, The Wire (2021), https://thewire.in/rights/rti-frivolous-applications-activists-proactive-disclosure-solution-pending-cases (last visited Dec 24, 2023)
Author: Vaishnav M
Juris Centre 