Anugra Anna Shaju, National University of Advanced Legal Studies, Kochi
DEMOCRACY AND PEOPLE'S People’s RIGHT TO INFORMATION: SNEAK INTO RTI AMENDMENT ACT
The Right to Information Act:
Under the Right to Information Act, 2005 (RTI Act), public authorities are required to disclose their organisation, functions and structure, powers and duties of its officers and employees and financial information suo moto. If such information is not provided, the citizens have the right to request for it. The Act has been a great stride towards ensuring accountability and transparency in the government and public institutions and to ensure access to information to every citizen. The Act basically deals with the right of the people to have access to information and the corresponding duty of the government to provide access to information.
The Act allows people to ask pertinent questions and receive information easily and in a systematic manner and the authorities are obliged to reply in a timely manner. The Act specifies a fine for the authorities if they don’t reply within the stipulated time i.e., thirty days from the date of receiving such an application or forty-eight hours in case the matter affects a petitioner’s life and liberty.
Under the Act any Indian citizen can request information under the ambit of public knowledge from the state and central government departments and offices. The information may be in any form. They can ask about the government projects, accounts of spending, relief funds etc. The Act also allows students to get copies of their answers sheets from their universities. However information related to defence, internal security, relations with foreign nations, intellectual property rights, cabinet discussions and personal details do not come under the Act.
Despite certain flaws like half answers for information requests, pending cases, uncertain time limits to dispose second appeals and grievances and delay in appointing Information Commissioners, the Act has been widely used to collect information and is popular among people, it guaranteed transparency and accountability without executive meddling. However the recent amendments have gone overboard and have resulted in government interference in the RTI’s institutions.
Background of the Act:
In 1994, a mass based organization called Mazdoor Kisan Shakti Sangathan (MKSS) in Rajasthan demanded records of famine relief work and labourers payrolls. A few labourers were refused their wages on the construction projects of schools, dispensaries, small dams and community centres. So the villagers of Bhim Tehsil village in Rajasthan asserted their right to information and asked for copies of bills and vouchers and names of people paid wages for the construction projects. The records showed gross misappropriation of funds and brought to light the corruption among the officials. This led the MKSS to protest for Right to Information. The movement was able to bring an amendment in the Rajasthan Panchayati Raj Act to allow the public to procure certified copies of documents with the Panchayats. In order to make this a national campaign, the MKSS in 1996 formed the National Council for People’s Right to Information in Delhi. In 2002, a weak Freedom of Information Act was legislated. Finally in 2005, the Freedom of Information Act, 2002 was replaced with the RTI Act.
Before the RTI Act, disclosure of information was largely restricted by the Official Secrets Act and other special laws. The RTI act was able to bring relaxations in these laws. Also the RTI Act necessitated computerization of records so that information can be easily processed and relayed when asked by the people.
Structure and Process of Enforcing the Act:
Applicants can request for information from the public authorities. The public authorities designate certain officers as Public Information Officers (PIOs). When an application is filed, it first goes to the Central/State Assistant Public Information Officer and Central/State Public Information Officer designated by the public authorities. They are required to reply to the request within thirty days. After which appeals on the information or reply provided goes to the Appellate authority. Appeals from the appellate authority go to the State Information Commission or the Central Information Commission which consists of a Chief Information Commissioner and up to ten Information Commissioners.
Filing an RTI is a hassle-free process and can be done either online or offline. However, some states do not have online RTI application facilities. Online application for RTI can be submitted through the official website of RTI (https://rtionline.gov.in). Different states and departments may have different procedures and the rules for filing may differ.
On the website, click on the submit request option and the applicant will be redirected to the “Guidelines for use of RTI online portal” screen. This page will contain the guidelines for using the RTI online portal. After reading these, the user will have to tick the option “I have read and understood the above guidelines” and click the submit button. An Online RTI Request Form screen will be displayed where the applicant will have to carefully select the Ministry/Department/Apex body and the Public Authority with whom they wish to file an RTI with. The user will have to provide certain personal details and contact information. They will also have to select whether they belong to the BPL category or not. The applicant will have to pay Rs. 10 as prescribed in RTI Rules, 2012 to file an application however BPL category people are exempted from making this payment. They will have to upload their BPL card to avail this exemption. The application need to be made in the “Text for RTI request application” field and should not exceed 3000 characters. Applications of more than 3000 characters can be filed by uploading it as a pdf in the supporting document field. After filling in all information, payment needs to be made by clicking on the “Make Payment” option. Once application is submitted, the applicant will get an email and SMS (if phone number was provided). The alert would contain a unique registration number that can be used to check the status of the application.
RTI and Democracy:
Democracy is the rule of the people. People are central in a democracy and they have the right to know the affairs of the state. They are the rulers of the government and thus the owners of all public records. Access to information is necessary to have empowered citizens and create an inclusive society. The RTI Act bridges the communication gap between the ordinary citizen and the government and allows the citizens to participate and know the affairs of the state. To keep the activities and businesses of the government hidden is not in the interests of the public and is not desired.
Article 19 of the Universal Declaration of Human Rights 1948 recognises the Right to Information. In India, the Right to Information has been recognised as a fundamental right and that it comes under the Right to Freedom of Speech and Expression in State of U. P. v. Raj Narayan and in Bennett Coleman v. Union of India. The Supreme Court had noted the importance of the RTI Act in good governance, which is an integral part of any vibrant democracy in Anjali Bhardwaj v. Union of India. It has also held that an open and participatory democracy requires accountability and transparency about the working of the government in S.P. Gupta v. the President of India. In Union of India v. Association for Democratic Reforms the right of the electors to know about the previous history including criminal records of the candidates was recognised. These judgments show that the Right to Information is an integral part of democracy and an important right of every citizen.
Access to information is of fundamental importance in a democracy and is the way to a more open and responsive government. To enable constructive criticism of the governments’ functioning and to ensure true rule of the people, the people need to know about the government policies, developmental schemes and how these are implemented or materialized. RTI serves this purpose and is a means to ensure transparency and generate trust in the government. Secrecy in the functioning of the government would make holding the government accountable difficult and would gradually degenerate to arbitrariness and absolutism. For all the institutions and departments of the government to work responsibly, information about their actions and decisions need to be available to the people. There exists a strong connection between people’s right to information and an efficient, corruption-free government. Only if citizens have information about the functioning of the government will they be able to keep the government on their toes to formulate better policies and work towards betterment of the country. So the RTI Act plays a huge role in ensuring good governance and in the development of the nation.
The RTI Amendment Act 2019:
The amendment Act has made changes in the term of office and the quantum of salary of the Chief Information Commissioner (CIC) and Information Commissioners (ICs) in the central as well as the state levels. It has made changes to Sections 13 and 16 of the Right to Information (RTI) Act, 2005. According to the amendment, the term of office as well as salaries, allowances and other terms and conditions of service will be determined by the central government. Earlier, the term of the CIC and ICs both at the central and state level was five years or until the age of 65, whichever is earlier. In terms of salary, it was supposed to be the same as that of the Chief Election Commissioner for the central and state level CICs, same as that of an Election Commissioner for the central ICs and same as that of the Chief Secretary to the state government for the state ICs. The Election Commission (Conditions of Service of Election Commissioners) Act refers to the Act and Rules Governing the Service Conditions of Supreme Court Judges.
The problem with these amendments is that it affects the independence of the CICs and the ICs. The amendment allows the central government to decide the tenure and salary on a case-to-case basis. Shashi Tharoor very rightly called the amendment Bill an “RTI elimination Bill”.
However the government argued that the mandate of Election Commission of India and Central and State Information Commissions are different because of which it was necessary to rationalise their status and service conditions accordingly. In the affidavit filed before the Supreme Court, the government held that the amendment was to formalize the otherwise dependent provisions and provide a separate unique procedure and conditions for the independence of the institutions under the RTI Act. The centre also argued that they have not touched upon the powers and functions of the institutions and that the RTI Act was enacted under the Union List, so it is competent to legislate on it.
The government has failed to give a credible rationale for such an amendment that will definitely hamper the independent functioning of the RTI institutions. The amendment is a way of cuffing the independence and impartiality of the RTI, to curb the powers exercised by the RTI institutions. The government may have, like MP Jairam Ramesh’s petition states, felt threatened by the RTI authorities who are not answerable to them and who have passed several decisions unpalatable to the central government fearlessly both at the state and central levels. The amendment would affect the free flow of unbiased information and shows the wariness of the government in making information about its functioning available to the people. It also shows that the government feels threatened by the free flow of information made available to the people and the power exercised by the RTI institutions. This in itself shows how important a role the RTI plays in the country.
The amendment is problematic because first of all it threatens the independence of the CIC, SCIC and ICs. When their salaries and tenure are decide by the government, their functioning will be such that they are ultimately answerable to the central government. They will be forced to act as employees of the government, be loyal to the government and withhold information that might be deleterious for the government. This would grant the government power and say in the functioning of these institutions. So the amendment can be viewed as an effort to bring the Information Commission under the central government’s belt.
The amendment can be seen as lowering their powers and status as the reason cited for the amendment was that they don’t have the same mandate as the Election Commission or the Supreme Court judge. However they were given the same status as the Election Commission or the Supreme Court judge to ensure that they were not mere government agents and could question anyone of any rank. The amendment failed to notice this rationale.
The Commission has before, asked the government to provide significant and relevant information about issues like the 2G Spectrum sale, the 2008 Commonwealth Games, the 2017 demonetisation and RBI, Non-Performing Assets etc. This would not have been possible if the Commission didn’t have the authority or independence. Independence of the Commission becomes extremely important when they have to deal with vested interests in the government. Now chances of them issuing directives to the government have diminished.
Before the amendment, state governments used to establish the commissions, appoint State Information Commissioners and assess the Information Commissioners performance. So the amendment can be seen as an encroachment into the functions of the state government, now the State Chief Information Commissioners and State Information Commissioners would be controlled by the central government.
It is very clear and evident that the amendment was brought without much scrutiny or public consultation. The amendment was not referred to the Parliamentary Standing Committees or the Information Commission and the citizens, the principal stakeholders of RTI.
It is true that all institutions under the RTI Act are statutory bodies however the fact that independence is a pre-requisite for the smooth working of all statutory bodies needs to be considered. Moreover given that the right to information is a fundamental right, this amendment limiting the right to information is an impediment in the effective enjoyment of a fundamental right.
Finally transparency in the system would be heavily affected when the government has a major say in the institution. Transparency and accountability are the pillars of democracy. The amendment has diluted the Act in such a way that it has once again become difficult for the general public to obtain information. Officers will have to act according to the whims of the central government and there are chances of access to certain information being restricted according to their wishes. The officers will be forced to provide filtered information in order to please the government. This will reduce transparency and is a blow on citizens’ right to information.
The RTI Act is one of the most popular and successful laws in India. It instilled confidence in the government and allowed people to obtain information and be active participants in the affairs of the state. For democracy to thrive and for the overall development of the country, it is important for the RTI system to be independent. However the recent amendment affects the independence and autonomy of the RTI institutions and can be viewed as involvement of the central government in the RTI’s functioning. This will adversely affect democracy and can be interpreted to be the government’s way of keeping its businesses and administration behind closed doors.
 The Right to Information Act 2005.
 Namit Sharma v. Union of India, (2013) 1 SCC 745.
 The Right to Information Act 2005 § 2(f): “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.
 CBSE v. Aditya Bandopadhyay, (2011) 8 SCC 497.
 About MKSS, Mazdoor Kisan Shakti Sangathan (Apr. 6, 2021, 3:34 PM), http://mkssindia.org/about/.
What Is the Right to Information Act (RTI)?, Business Standard (Apr. 6, 2021, 3:34 PM), https://www.business-standard.com/about/what-is-right-to-information-act#collapse.
 The Right to Information Act 2005 §2(h):
“public authority” means any authority or body or institution of self-government established or constituted—
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government,
and includes any—
(i) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government.
 G.A. Res. 217 A (III), art. 19 (Dec. 10, 1948):
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
 State of U. P. v. Raj Narayan, AIR 1975 SC 865.
 Bennett Coleman v. Union of India, AIR 1973 SC 106.
 Anjali Bhardwaj v. Union of India, 2019 SCC OnLine SC 205: This Act is enacted not only to sub-serve and ensure freedom of speech. On proper implementation, it has the potential to bring about good governance which is an integral part of any vibrant democracy.
 S.P. Gupta v. the President of India, AIR 1982 SC 149.
 Union of India v. Association for Democratic Reforms, AIR 2002 SC 2112.
PIB Delhi, The Right to Information (Amendment) Bill, 2019 introduced in Lok SabhaThe Right to Information (Amendment) Bill, 2019 introduced in Lok Sabha, Press Information Bureau, July 19, 2019, https://pib.gov.in/Pressreleaseshare.aspx?PRID=1579510.
 Shyamlal Yadav, Explained: What has changed in RTI Act? Why are Opposition parties protesting?, The Indian Express, July 22, 2019, https://indianexpress.com/article/explained/what-changes-in-rti-rti-amendment-bill-2019-mean-5840814/.
 Express News Service, Right to Information Act: Amendments don’t affect citizen’s right to information, Centre to SC, The Indian Express, Mar. 9, 2019, https://indianexpress.com/article/india/right-to-information-act-amendments-dont-affect-citizens-right-to-information-centre-to-sc-7220193/.
Vinita Deshmukh, Govt Affidavit Denies Dilution of Information Commissioners’ Autonomy in RTI Amendment Rules, Money Life (Apr. 6, 2021, 3:34 PM), https://www.moneylife.in/article/govt-affidavit-denies-dilution-of-information-commissioners-autonomy-in-rti-amendment-rules/63196.html.