The Right To Information Act: Ten Years of Transparency or A Decade of Ambiguity
By Shalu Nigam
01 September, 2015
Countercurrents.org
The Right to Information Act passed in 2005 provided a ray of hope for common people as it promises transparency and accountability in governance and captured the imagination of masses soon. The law has a potential to be a crucial catalyst in challenging the power equation between the common masses and the ruling classes besides curtailing corruption. The object to create this Act was to serve a larger public interest to question the age old hierarchical traditional system of governance and to strengthen foundation for a true participatory democracy. However, the assessment of ten years of its implementation reveals that many promises remain unfulfilled. The law has failed to benefit citizens as recently the bureaucratic apparatus is creating hurdles in its smooth implementation. Instead of empowering citizens, the law has been operated in a manner to exclude majority of populace. The widening polarity between the givers and the receivers of information is creating a hindrance in smooth functioning of democracy. The RTI (Right to Information) is rather gradually becoming an OTI (Obstruction to Information) where the giver of the information no longer is willingly parting the required information rather the giver is trying to utilize all the armaments to prevent sharing the same. What is being shared is propaganda where partial information is shared to influence the audiences by selectively presenting the facts to produce emotional rather than the rational response to the political or a social situation. In the age of information and technology, when the usable, relevant and timely information should be proactively disclosed by the public authorities, often they end up denying transparency and accountability by withholding the required pertinent information. The usability from the perspective of the information seeker is often lacking and RTI has failed to become a user friendly law. The backlash against RTI by government and judiciary is further hampering the citizen’s fundamental right to know. To counter such denial and hostility by the bureaucratic machinery, the civil society and citizens have to find innovative ways and means so that RTI truly serves the purpose of ending corruption and facilitate better governance.
A Short Story of the Long Struggle to Enact the RTI Law
`With the tryst of destiny’ when India gained independence from the foreign rulers it could not gain Freedom of Information in its true sense then because what the country adopted is the massive bureaucratic machinery set by the colonial masters along with a constricted mindset of withholding information and a narrow approach of maintaining secrecy and opacity that tend to isolate rulers from the ruled. Masses were alienated by the system which was created to serve them. Poverty, hunger, malnutrition, lack of education, and all other social malaise continued to deepen because of corruption that jeopardized development. Over decades, corruption remains rampant because the common citizens are denied their right to information. Authoritarian regimes shrouded in secrecy and opaqueness hinders the functioning of participatory styled democracy even when the Constitution of India has visualized a dream democratic egalitarian society. Just like the colonial rulers, the successive government in independent India, over the years, demanded taxes from the people, yet they failed to provide information as to why, where and how this tax payer’s money was being utilized. Problems increased because nobody raised questions about how much money was allocated for development, why the particular bridge collapsed, who is to be held responsible for existing hunger and poverty among masses, why hospitals or schools were lacking in facilities and so on. The list was endless and no one knows because getting information was a herculean task. Even when a few dare to raise questions, their voice was throttled. It has been difficult to challenge the hegemony of the rulers. The politicians in nexus with the business played political games instead of reflecting on the crucial issues relating to the development[1]. The government which was created to serve people failed to recognize the rights of its citizens.
Nevertheless, gradually with the emergence of civil society organizations, situation began to change. Steadily, a movement was initiated on the ground that the citizen’s access to information helps to combat corruption and enhance citizen’s participation in decision making and governance. The concept of public information arose with the claim that democracy is essentially based on the interest of common public to which government is accountable. It effectively brought people together to define and protect common interests and dissent against corrupt actions of the government. Began at the grassroot level in a small village in Rajasthan by MKSS, the campaign on the RTI culminated into a movement on the Freedom and access to information and initiated a debate on feasibility of RTI law in India. This was followed by broader discourse on the issue of governance. The RTI Act was finally passed in 2005. It is a well crafted piece of legislation that recognized sovereignty of the citizens and is a result of efforts of civil society’s participation and intervention. The Act legitimized citizen’s right to information and established an apparatus which is entrusted the state with the duty to ensure easy access to information. It empowers ordinary men and women to question the powerful authorities. This law primarily is seen as a tool to promote the culture of openness, transparency and accountability in administration by making government open to public scrutiny while enabling people’s participation in governance. The civil society actors passionately involved themselves in educating common citizens about the law and its nuances. The initial analysis of implementation of this law reveals that in spite of teething issues, RTI when used by conscientious citizens, succeeded in exposing scams, revealing scandals, mapping corruption, questioning decisions, identifying limitations in development programmes and strengthening the process of governance.
Citizens – State Divide: Operationalization of the Law
This particular piece of legislation swiftly gained imagination of the masses in India where people came forward to claim the ownership of the law, extensively exercised their rights to seek information on various aspects relating to governance and demanded accountability from the state. However, once the citizens actively participated in the process of governance, the autocratic, regressive state was gripped with the fear of losing its authority and control. The age old structures of hierarchy and supremacy began resisting the changes as under the new system those in power are forced to surrender their authority and control. Their power is now being questioned and challenged by a common person. The general attitude of ruling elite is to halt the process of participatory governance by holding and hoarding the information and RTI directly made a dent on it. Opacity is perhaps seen as a symbol of domination because by hoarding information the rulers tend to create a `poverty of information’ which is deemed desirable, however RTI began demanding transformation in such mind-set. The knowledge or information has been treated as a possession to be owned by elite and powerful rather than as a common element which should be made available to all. This approach opposes the equal distribution of the power while maintaining the culture of secrecy.
Clearly, with this resistance, two groups emerged as those delineated in the sociological debates – those of powerful and subalterns, exploiters and the exploited, oppressors and the oppressed, the dominating and the marginalized, the knowers and the uninformed or those who have been kept in ignorance and dark about the issues that concerns them, the information providers and the information seekers. Secrecy classifies and creates divide distinctly on the basis of availability of knowledge. It produces hierarchy and maintains hegemony while empowering the holder of the information to abuse and misuse his authority to suppress and control those who are dispossessed of the information. This confining approach is based on the notion that citizen is not an independent entity rather s/he is the subject to be ruled and governed by the state. Those at the givers end hence deploy many techniques and weaponry to halt the process and contest the queries raised under the law to maintain their domination and prevent citizens from claiming their due. This is because secrecy helps them to continue with their arbitrariness in decision making and thrive in the environment of unaccountability. As Jeremy Bentham, a British philosopher in 1843 observed, “In the darkness of secrecy, sinister interest and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks, applicable to judicial injustice, operate. Where there is no publicity there is no justice.”
It is not that the resistance depicted by the powerful is a new phenomenon, maintaining confidentiality has been practiced since ancient times. As Thomas Hobbes in his work Leviathan used the phrase Scientia potentia esa which implies that knowledge is power and aptly describes the manner in which withholding information can be used as a tool to oppress those who do not possess. However, what is being shared is selective information or propaganda where the information is manipulated, synthesized and articulated in the manner to evoke emotional rather than rational intelligent response. This is what Adolf Hitler in his Mein Kampf[2] has also argued, “If those in what are called positions of authority had realized this there would have been no uncertainty about the form and employment of war propaganda as a weapon; for it is nothing but a weapon, and indeed a most terrifying weapon in the hands of those who know how to use it”. Hitler further opined, “Propaganda must always address itself to broad masses of the people….Propaganda must not investigate the truth objectively and in so far as it is favourable to the other side, present it according to the theoretical rules of justice; yet it must present only that aspect of the truth which is favourable to its own side”. He further stated, “The great majority of a nation is so feminine in its character and outlook that its thought and conduct are ruled by the sentiment rather than my sober reasoning”. Hitler warned, “in the field of propaganda, placid aesthetes and blase intellectuals should never be allowed to take lead. The former would readily transform the impressive character of the real propaganda into something suitable for literary tea parties. As to the second class of people, one must always be beware of this pest; for in consequences of their insensibility to normal impressions, they are constantly seeking excitements”.
The state in modern society is therefore indeed focusing on propaganda rather than actually imparting the information which should be made available in the public domain. Mechanisms are being installed by the state to let the people know only that which it wants them to know and not what they should know. Propaganda is used by the state to dehumanize by creating false biased images to mask true intentions and hide uncomfortable facts. Information is disseminated to shape public opinion for the purpose of which latest and innovative techniques are being utilized. Mass media is used by the powerful state to leverage its monopoly and serve the end of dominant elite. As Herman and Chomsky[3] in their famous work Manufacturing Consent explained that with the money and power available with the state actors, they marginalize dissent and allow only the interest of dominants to get across to the public. It is stated that, “large bureaucracies of the powerful subsidized the mass media, and gain special access, by their contribution to reducing the media’s cost of acquiring and producing news. The large entities that provide subsidy become the routine news source and have privilege to access the gates. Non routine sources must struggle for access, and may be ignored by arbitrary decisions of the gatekeepers”.
Successive governments in India therefore made attempts to dilute the provision of RTI law thus reducing its efficiency; however these were met by the intense resistance from common citizens. Nevertheless, citizen’s opposition to amend the law could not deter the state from following lackadaisical approach in implementation of it. When the undesirable acts of the bureaucrats, senior officials and politicians are brought under the scrutiny they developed justifications and undemocratic techniques to prevent citizens from accessing information and dissuade them from using this significant piece of legislation. The fear of criticism, embarrassment, and apprehension of losing the power thwart them to share information. The apathetic approach of Information Commissions, an apparatus created under the act to protect the right to Freedom of Information, further embolden the state to evade the citizen’s claims.
Active and Passive Resistance Against RTI
Resistance to eradicate opacity comes from many levels and in varied forms – both actively and passively. State institutions deny access to information for a variety of reasons. According to a study conducted by CHRI[4], “during the year 2011-12 a total of 2.03 million applications were submitted to the public authorities under Central Government and in 10 states including Jammu and Kashmir. A large number of these applications were rejected on the ground of protecting personal privacy. Appeals were largely made because applicants either did not receive response from the PIO or they are dissatisfied with the reply while several disgruntled complainants approached the Commission due to lack of awareness about procedures or simply due to frustration. The reasons for delays are: Poor record-keeping practices, lack of adequate infrastructure and staff for running information commissions and dilution of supplementary laws like the whistleblowers protection Act”. Often, the information, in many cases is not being provided in timely manner thus frustrating the citizens’ rights.
The Central Information Commission compiled data from the information available from various state commissions and public authorities for the year 2013-14 and observed that a total of 962,630 requests are pending for disposal. The percentage of applications rejected by the public authorities has been increasing over the years. In less than 31% of the cases, penalties were imposed on government departments and the amount of 19.25 lakhs was levied as compared to 13.19 lakhs levied for the year 2012-13. The penalty clause was either not used and further the amount recovered were much less due to administrative delays or grant of stay order by the High Court. Also, no consolidated data is available on the number of application disposed off. Moreover, no compensation was awarded to citizens for the losses due to delay in providing information. Experiences show that often, when citizen demands information, either it is not provided or ambiguous unusable data or piles of files are offered thus making it difficult for a person to filter relevant required facts. Also, though the number of applications seeking information is increasing, yet, the process is becoming cumbersome. Experiences reveal that due to the hurdles created by the givers of information, the citizens’ entitlement to know is at stake[5]. The implementation of this law has caused inconvenience to those in power and therefore multiple efforts are being made to dilute the efficiency in implementation of the Act.
In a comprehensive and an interesting study conducted by RTI Assessment and Advocacy Group (RAAG) and Samya – Centre for Equity Studies (CES), titled ‘Peoples’ Monitoring of the RTI Regime in India 2014[6] for the period 2011-13 it has been observed that the RTI has been made ineffectual and dysfunctional because of huge backlog, ineffective appeal process, non utilization of penalty clause, poor awareness about the law and weak record management system. Participation of women in RTI process was found to be as low as 8% and only 14% of the applicants hail from rural areas[7]. The report further noted that, “Applicants, especially from the weaker segments of society, are often intimidated, threatened and even physically attacked when they go to submit an RTI application, or as a consequence of their submitting such an application”. When raised in Lok Sabha, this findings of this report was dismissed by the state authorities while stating that, “However, in absence of information regarding objectivity of the surveying organization, research methodology and survey design and scheme for data collection and its verification, it is not considered prudent to comment on their findings”[8].
Also, it has been noticed that the weak enforcement mechanism it itself hinders spirit of the law. Public Information Officers are not trained or sensitized. Often, the provisions of the Act are misinterpreted and misread to deny citizens their rightful claims. For instance, the third party clause has been misread by the public information officers to defy transparency. The process of seeking information is obstructed by those in power using whimsical, arbitrary, illegal, unconstitutional and illogical grounds. The life and liberty clause under the RTI Act gives a right to the applicant to receive information in 48 hours in case his or her life and liberty is in danger. However, applications under this clause are seldom being entertained. In instances of custodial torture and rape, the clause cannot be used because the department is under the list exempted category. Other supply side considerations of the operationalization of the right to information consists of streamlining the chaotic clumsy systems of maintaining records or archiving the same, which has been not done in many cases. Keeping dusty files as a scheme of record management in the era of information technology is still practiced at many places. Further, the system and the process followed is not user friendly. The public authorities spend more resources and public funds in doing unnecessary paper work and dragging in litigation instead of providing information to the citizens. For instance, in a matter, a state medical education department expressed its inability to provide information regarding the number of seats available in post graduation programme and number of teachers deployed on the pretext that `it could be detrimental to the safety of preservation of record in question’[9].
Also, imperceptive justifications are given by the state apparatus to avoid giving information under the RTI Act. For instance, recently in an order dated June 30, 2013, the Central Information Commission ordered that political parties should be considered as public authorities under section 2(h) of the Act and therefore they should furnish information related to donations they receive and their expenditure within public domain. However, the state comes to rescue the parties and in the affidavit[10] filed before the Supreme Court of India it firmly stood on the ground that “political parties are not established or constituted by or under the Constitution or any other law made by the parliament. Political Parties are constituted by their registration under the Representation of Peoples Act and this cannot be construed akin to the establishment or constitution of a body or institution by an appropriate government as held by the CIC.”. It further justifies that “If political parties are held to be public authorities it would hamper the smooth internal working. It is apprehended that political rivals might file RTI applications with malicious intention to the CPIO of Political parties thereby adversely affecting their political functioning”. This line of though go against the principles on which RTI Act is formulated and is opposite to the basics of transparency and accountability.
Should RTI Fee be a relevant factor in providing information?
Under Section 27 and Section 28 of the RTI Act, the state governments and competent authorities to make rules and prescribe fee payable by the applicant to seek information. In effect, the Central government, the state governments and the courts are devising and interpreting their own rules for charging fees. The Department of Personnel and Training in 2011 has clarified that fees should not be disincentive to those who might wish to make a request under the RTI Act. The Centre therefore notified RTI (Fees and Cost) Rules and Appeal Procedures Rules in 2012. Yet, only a few states have harmonized rules relating to fees with that of Central Government. As per the Rules, a fee of Rs 2 has to be charged for each page of photocopy in A3 or a smaller size of paper and Rs 50/- for information to be provided in a disk or a floppy[11]. However, in Uttar Pradesh, the fee charged is Rs 10 per paper and Rs 2 per annexure. In Sikkim, Rs 100/ has been charged as RTI fee and Rs 10/ -is charged per annexure. Haryana and Tamil Nadu charge Rs 50/. A few states charge extra amount for photocopy as well as include other costs.
Also, at times, absurdly high charges are demanded as the cost of gather information. For instance, in a matter against National Green Tribunal, the applicant seeking information under the RTI Act paid fee by way of court stamp rather than submitting postal order, cash or bank draft. The Central information Commission reproved the Tribunal for spending Rs 30000/- as legal fees to defend its decision of not providing information to the citizen who paid Rs 10/- as RTI fees in court stamp rather than the postal order[12]. The Commission held that “Fee is not a material factor in throwing out the request”. It ruled that the departments must provide information to applicants even if fee is not paid in prescribed mode. In yet another case, in a response to an application filed to seek department wise money being spent on purchase of books and payments made to booksellers, the Delhi University demanded Rs 80,000/- on the account of the reasoning that the information sought was extensive and the staff would have to work for extra hours to process it[13]. This is in spite of the fact that the Rules under the Act clearly provides that the public authorities could not charge other than the fees fixed under the law.
Information Commissions Often Act as Stumbling Blocks
When the RTI Act was framed it was assumed that the Commissions formulated under the law will act as the keepers of transparency. However, this has not happened as these bodies themselves are marred by bureaucratic approach. In many places there is a paucity of the staff, and often due to delay in appointments the number of cases are piling up[14]. Successive governments are maintaining secrecy in appointment of commissioners and senior positions[15]. Often, political nominations are being carried out on the basis of vested interests. Questions have been raised regarding approach of those appointed as Information Commissioners towards the regime of transparency[16]. Also, the Commissions rarely impose fines or penalize officers who failed to perform their duty of providing timely information. The study by CHRI reveals that Commissions themselves are not updating their annual reports or even in case the annual reports are updated, the data lacks even basic details like number of cases filed, number of cases disposed off, pending cases, gender wise segregation, rural urban divide, so on and so forth.
A Dangerous Bureaucratic Approach to Resist RTI
RTI challenges the existing power equation and this created a resistance as bureaucracy viewed transparency as a hindrance. It is not only the public authorities which created obstruction in the process of seeking information but it is the entire regressive bureaucratic structure which generates barriers in the process to seek transparency. It has been lamented by those in power that people are filing frivolous and vexatious complaints and therefore the process of exposing the truth needs to be controlled. This is a usual attitude of the state adopted in almost all the laws that are people friendly. For instance, the State Information Commission in one of its ruling observes, “Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter-productive.” It also maintained that such questions would “adversely affect the efficiency of the administration”, stating that “the Act should not be converted into a tool of oppression or intimidation of honest officials striving to do their duty.” The State Commission in Lucknow contended that RTI is acting as a stumbling block in functioning of the government[17].
Actively, the state is propagating the agenda that the law has been used more to achieve the personal vendetta and therefore it is hampering the process of governance. It has been reported that the former prime minister at the convention held in 2012 by the Central Information Commission’s said that, “There are concerns about frivolous and vexatious use of the Act in demanding information the disclosure of which cannot possibly serve any public purpose.” This approach of the state towards RTI is dangerous as it is blocking the path towards transparency and accountability. Though RTI web portal has been initiated where citizens can seek information online from 431 public authorities[18] yet there is a need to monitor whether they provide the information which citizens require or become a mouthpiece of the state functionaries providing information only regarding the issues which the government wishes to share.
RTI and the Judiciary: A Reality Check
Initially, when the law on RTI was enacted, many positive judgements were pronounced by the judiciary. However, recently, the quasi judicial and judicial bodies are narrowly interpreting the law while constricting the rights of citizens and neglecting their role as independent and just arms of the state. The citizen’s entitlement to know is obviated and what is promoted is opacity overlooking the fact that secrecy is an anti-thesis to fair justice. In the case of Bihar Public Service Commission v. Saiyed Anwar Hussain Abbas Rizvi[19] the Supreme Court held that the “Right to information is a basic and celebrated fundamental/basic right but is not uncontrolled. It has its limitations. The right is subject to a dual check. Firstly, this right is subject to the restrictions inbuilt within the Act and secondly the constitutional limitations emerging from Article 21 of the Constitution. Thus, wherever in response to an application for disclosure of information, the public authority takes shelter under the provisions relating to exemption, non- applicability or infringement of Article 21 of the Constitution, the State Information Commission has to apply its mind and form an opinion objectively if the exemption claimed for was sustainable on facts of the case”.
The Supreme Court[20] while explaining the fiduciary relationship between the public authority and the citizens observed, “in regard to other information (that is information other than those enumerated in section 4 (1) (b) and (c) of the Act), equal importance and emphasis are given to other public interests (like confidentiality of sensitive information, fidelity and fiduciary relationships, efficient operation of governments, etc.). Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritising `information furnishing', at the cost of their normal and regular duties”. (Emphasis mine) The state using this judgement has issued a circular[21] using it as an excuse to deny information to the citizens to which many of activists have dissented who argued that based on conservative assumptions the government officials will be spending 4.6% of their time on providing information[22].
Further, the High Courts too are narrowly interpreting the citizens’ right to know. For instance, the High Court of Chennai in its judgement elaborated that an applicant must disclose `bare minimum’ reasons for his application and should provide details whether he is seeking information for the `public’ or `private’ interest[23] which was later deleted via suo moto review after the media highlighted the details. This observation violates the provisions mentioned in Section 6 of the Act which specifically mandates that the citizens need not provide any reason for his application. In fact, it has been lamented that in its own inner working the judiciary is systematically preserving opacity as evident in appointment of judges, declaring the assets of judiciary and in proceedings conducted by collegiums in the High Courts and the Supreme Court. Therefore, it may be said that the trend of secrecy and opacity is penetrating and now state actors are finding that transparency is impeding their functioning and therefore the provisions of RTI should be diluted. However, this approach is hindering the citizen’s rights to participative democracy.
Slaughtering the Spirit of Democracy
There are many conscientious citizens and activists who are using RTI to expose maladministration, nepotism, corruption, wrong-doing, mis-governance and mismanagement in the governance process however, this is not an easy task. Most of the civil society actors complained that either the state officials do not accept applications or they are often being pressurized to withdraw their applications. At many places, women using RTI were ostracized. Arti (name changed) shared[24], “when I filed an application under RTI, they made me run around pillar to post. I was taunted and teased by officials every time I visit the office. They used to taunt me by the name ` Thanedar Madam’ and always made fun of me”. Many RTI activists are socially boycotted, mocked, abused or threatened. The reluctance of the officials exhibits the manner in which modern rights are being denied in the traditional set up. Those who attempt to use the law face work place retaliation and in other cases they are implicated in false cases to muffle their voices. Many have been threatened, attacked and assaulted. The brutal attacks on whistleblowers have highlighted vulnerabilities of those who dare to expose truth. Several of the activists, whistle blowers and journalists faced threat to their life because they dare to challenge the oppressive regime by raising uncomfortable questions that may expose the truth of the abuse of power[25]. It is the moral obligation of the state to protect those at peril who expose wrongdoings, yet, the police instead of registering FIR or quickly disposing the case often act against them and hardly provide any protection. Data collected by the CHRI reveals that within the eight years over 251 activists were murdered, attacked, harassed or their property was damaged because they sought information under RTI. This is when records are not being kept as to number of people who filed applications under RTI or the linkage with the attacks and RTI applications. The activists are now lobbying with the government to collect data on the attacks of those who use RTI law[26]. However, it may be said that the courage and hope to transform the world needs to be kept alive within the continuous loop of life threats and deaths.
The Whistle Blower Protection Act: Will it Protect Whistle Blowers?
When Edward Snowden, an American computer professional released information about global surveillance program of USA government he emerged as a whistle blower, and his disclosure fuelled a debate over government secrecy, mass disclosure, national security and information privacy all over the world. Similarly, Julian Assanage, an Australian computer programmer and editor in chief of Wikileaks, Chelsea Manning and many others have been threatened and their actions are considered as civil disobedience though these raised significant concerns relating to government secrecy and abuse of power by the state. In India too, the cases of Manjunath, Satyendra Nath Dubey, Shehla Masood, Avijit Misra and many others who lost their lives in Vyapam or similar scams recently illustrate the manner in which the Right to information has been obstructed and denied by those who are in powerful positions. These are ordinary people who want to report, expose, investigate and prosecute the corrupt government officials yet they face legal barriers, opposition, physical and mental harassment and are victimized or murdered because of abuse of power. The entire debate on whistle blowers importantly points out to the considerable role they play in exposing the truth and protection they need under the national laws and international treaties.
In India, after much debate and protest the Whistle Blower Protection Act, 2011 was passed which received the presidential assent on May, 9, 2014[27]. The intent of this law is to establish a mechanism to protect anyone who exposes the corruption, prevent willful misuse of power and to provide adequate safeguards against victimization of the person of the person making complaints of corruption. Under this law, the Central Vigilance Commission is assigned with the task of receiving the complaints, assessing request and safeguarding the complainant and the onus is laid on the public official to show that any adverse action taken against a whistle blower is not retaliatory. The law seeks to protect the person from the anti retaliation at workplace provision. It ensures confidentiality and penalizes any public official who reveals complainant’s identity without proper approval; still, it does not impose civil penalties on such person. The law also places limitation on the complainant and penalize him or her for filing false or frivolous complaint. However, it has its limitations. The law does not impose criminal liability on those who physically attack the whistle blowers. This is a significant element keeping in mind the number of attacks being made in past years on those who blow whistle. The law does not define the terms `victimization’ and `disclosure’. Thus, this law provides for inadequate protection and merely provides lip services to whistle blowers. Though the rules under the law are yet to be notified, still the current government is planning to amend the law by bringing in Whistle Blower Protection Act Amendment Bill, 2015 in the guise of `national security, integrity and sovereignty of the country, information that is related to strategic, economic, scientific and strategic interest of the state or information that is categorized as commercially confident, trade secret or intellectual property, or information obtained in fiduciary capacity, or unwarranted invasion of privacy’[28]. Once implemented these amendments will certainly reduce the space for blowing lids of corporate or government’s wrong doings. Under the amended Bill, the Center and the state government are considered as an ultimate arbiter in deciding if the information provided by the whistle blower falls in any of these exempted categories and both of these agencies can easily stall the process abusing their power. These provisions ultimately defeat the purpose of the law as it empowers the state agencies rather than the citizens who are struggling to expose the truth.
Way Ahead to Establish the Participatory Process of Governance
Mahatma Gandhi opined, “I hope that real Swaraj will come not by the acquisition of authority by a few but by the acquisition of the capacity by all to resist authority when abused.” RTI is a potential tool to change the discourse of governance and alter the paradigms of power with the object to attain Swaraj or people’s governance. The object of this law is to obliterate opacity while formulating a new participatory form of governance that empower citizens, deepens democracy and make state accountable for its decisions and actions. It was framed with the awareness of unequal power dynamics that underpin the relationship between the state and the citizens and is seen as a weapon to change the situation rather than an end in itself. However, the citizen’s right to information is clearly facing strong challenges due to hostile attitude of powerful bureaucratic structure which act as a strong deterrent. Ten years of operation of this law depicts that it failed to change the mindset of the rulers and could not eliminate the belief that state is an apparatus formulated to serve the people rather than rule. The usability from the perspective of the information seeker is often lacking and RTI has failed to become a user friendly law. The backlash against RTI by government and judiciary is further hampering the citizen’s fundamental right to know. To counter such denial and hostility by the bureaucratic machinery, the civil society and citizens have to find innovative ways and means so that RTI could be truly utilized to serve the purpose of ending corruption and facilitate better governance. RTI is a powerful mechanism for citizens to demand transparency in governance and therefore any attempt to dilute the law cannot be tolerated and this is possible when citizens initiate a movement to `Occupy Information’ before `Right to Information’ becomes `Obstruction to Information’. The need is to encounter the weapon of secrecy used by the dictatorial regime. It is essential to promote openness and transparency as tools to true democracy.
The author is an activist and a researcher working in Gender, Law and governance issues and has written books on the issue of the Right to Information in 2005 (Published by Jain Book Agency) and in 2008 (We the People Trust). She may be contacted at [email protected] or on twitter https://twitter.com/shalunigam
[1] Nigam Shalu (2008) About Your Right to Information, We the People Trust, New Delhi. Also Nigam Shalu (2005) Right to Information: Law and Practices, JBA Publishers, New Delhi
[2] Hitler Adolf Mein Kampf, Published by the Lexicon Books Delhi India 2013 edition p. 159
[3] Herman ES and Chomsky Noam (1994) Manufacturing Consent: The Political Economy of Mass Media, Vintage, London
[4] Commonwealth Human Rights Initiative (2013) The use of Right to Information Laws in India: A Rapid Study, http://www.humanrightsinitiative.org/postoftheday/2013/CHRIRapidStudy-RTIUseinIndia-2011-2012-Oct13.pdf
[5] Gandhi Shailesh (2015) Right to Information is Slowly but Surely being Suffocated, The Wire, July 8 http://thewire.in/2015/08/07/right-to-information-is-slowly-but-surely-being-suffocated-7970/
[6]Available at http://www.rti-assessment.com/raag---ces--rti-study-2011-13.html
[7] RAAG and Samya Centre for Equity Study (2014) People’s Monitoring of RTI Regime in India http://nebula.wsimg.com/93c4b1e26eb3fbd41782c6526475ed79?AccessKeyId=
52EBDBA4FE710433B3D8&disposition=0&alloworigin=1
[8] Ministry of Personnel, Public Grievances and pensions (2015) Increase in RTI Applications, Press Information Bureau July 22 http://pib.nic.in/newsite/PrintRelease.aspx?relid=123499
[9] Sujatha R. (2015) Information Panel terms RTI query Impractical, The Hindu, Chennai, July 30 http://www.thehindu.com/news/cities/chennai/information-panel-terms-rti-query-impractical/article7483484.ece?ref=tpnews
[10] Association of Democratic Reform v. Union of India Civil Writ Petition No. 333 of 2015 Counter Affidavit filed by the Respondents
[11] Sharma Neetu C (2015) Government tell Court Officials to Keep fees at reasonable level, The Mail Online India, July 29 http://www.dailymail.co.uk/indiahome/indianews/article-3179139/Registrars-ordered-charge-reasonable-fees-RTI-requests.html
[12] Tikkuu Aloke (2015) NGT spends Rs 30,000/ to make Citizen Pay Rs 10 RTI fee, The Hindustan Times July 10 http://www.hindustantimes.com/india-news/cic-raps-ngt-for-spending-rs-30-000-to-make-citizen-pay-rs-10-rti-fee/article1-1367673.aspx
[13] Prakash Satya (2015) DU Colleges asks for Rs 80,000/ to frame RTI reply, The Hindustan Times, July 20
http://www.hindustantimes.com/newdelhi/du-college-asks-for-rs-80-000-to-frame-rti-reply-ht-exclusive/article1-1371063.aspx
[14] Misra Udit (2015) The Slow Death of RTI Act February 20, 2011, The Forbes India, http://forbesindia.com/article/resolution/the-slow-death-of-the-rti-act/22182/1?utm=slidebox
[15] Christin PM (2015) Seeking Transparency, activists applied for the top positions in RTI Panel, The Times of India, Chennai, July 16 http://timesofindia.indiatimes.com/city/chennai/Seeking-transparency-activists-apply-for-top-posts-in-RTI-panel/articleshow/48092418.cms
[16] Gandhi Shailesh (2015) Regressive Forces are Undermining RTI. We Must Stop Them, The Scroll.in May 12 http://scroll.in/article/726801/regressive-forces-are-undermining-the-rti-we-must-stop-them
[17] The Times of India (2015) RTI Act not for Stalling Government Work, August 3, http://timesofindia.indiatimes.com/city/lucknow/RTI-Act-not-for-stalling-govts-work/articleshow/48322333.cms
[18] Press Trust of India (2015) Now File Online RTI Applications With 431 Public Authorities, NDTV August 6 http://gadgets.ndtv.com/internet/news/now-file-online-rti-applications-with-431-public-authorities-724475
[19] 2012 (13) SCC 61
[20] CBSE v Aditya Bandopadhyay Civil Appeal No. 6454 of 2011 arising out of SLP No. 7526/ 2009
[21] Circular issued by the Department of Personnel and Training, Ministry of Personnel, Public Grievance and Pensions, Government of India, No. 1/18/2011 IR Dated 16/09/2011
[22] Naryanan Dinesh (2012) RTI Queries don’t Affect Govt Work, The Forbes February 23 http://forbesindia.com/article/numerix/rti-queries-dont-affect-govt-work/32292/1?utm=slidebox
[23] The Public Information Officer, The registrar, HC Madras v The Central Information Commission WP 26781 of 2013 and MP 1 0f 2013 date of decision 17.9.14 http://www.legallyindia.com/images/Judge_Result_Disp.asp.pdf
[24] This is during a personal conversation with the author
[25] Asian Centre for Human Rights (2011) RTI Activists: Sitting Ducks of India, New Delhi http://www.achrweb.org/ihrrq/issue3-4/India-Sitting-Ducks-2011.pdf
[26] The Hindustan Times (2015) Govt to collect data on assaults on RTI activists, scribe, July 23 http://www.hindustantimes.com/india-news/govt-to-collect-data-on-assaults-on-rti-activists-scribes/article1-1372192.aspx
[27] The Whistle Blower Protection Act 2011, Act No. 17 of 2014 Available at http://persmin.gov.in/DOPT/EmployeesCorner/Acts_Rules/TheWhistleBlowersProtectionAct2011.pdf
[28] The Whistle Blower Protection (Amendment) Bill 2015 Bill No 154 C of 2015 Available at http://www.prsindia.org/uploads/media/Public%20Disclosure/Whistle%20blowers%20bill%20as%20passed%20by%20LS.pdf
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