Why the RTI amendments must be opposed
In passing the amendments to Right to Information Act (RTI), Parliament has risked undermining one of the central institutional pillars of our democracy: The information commission, both at the Centre and the state. This comes at time when the institutional foundations of India’s democracy — from the Election Commission (EC) to the Supreme Court and the National Statistical Commission — are facing a severe crisis of credibility. In recent years, even the most sacred of institutions, like the EC, have been accused of blatant partisanship. The information commissions have thus far remained insulated from this charge, passing orders that have, on occasion, made the Narendra Modi government uncomfortable. But in pushing these amendments, both Houses (the Lok Sabha passed the amendments on Monday; the Rajya Sabha on Thursday) have now made information commissions vulnerable. This is a worrying development that must be resisted now with the only tool available: Greater public scrutiny.
At first glance, the amendments appear benign. They deal with matters pertaining to tenure, allowances, and the terms of service of information commissioners. These were articulated in the Act, which mandates fixed five-year terms, and accords appropriate status to the commissioners by equating their salaries with that of election commissioners at the state and central level. The amendment removes these provisions, and empowers the Centre to take these decisions.
Two consequences follow from this. First it undermines the status of the commissioners, which in the hierarchy of the State, is a necessary condition for staying independent, issuing orders, and more importantly, monitoring implementation. This was the logic behind conferring information commissioner’s status and salary equivalent to election commissioners (and the chief secretary, in the case, of states). Importantly, this is a principle routinely adopted for statutory oversight bodies.
Second, it allows the Centre to meddle with the everyday functioning of the commission. The Centre has now appropriated powers to notify term of office. In other words, it can get rid of uncomfortable commissioners, with relative ease, thus making the information commissions subservient to it. In undermining their independence, the amendments threaten the spirit and intent of the RTI, which is to establish norms of transparency and accountability in governance. To understand this, it is important to place the role of the commissions in the larger context of how the RTI has unfolded over these, nearly, 15 years.
Since its passage in 2005, citizens have enthusiastically embraced the RTI. By one estimate, nearly six million citizens use the law, annually. And this may come as a surprise, but governments respond to applications. The rate of rejections of RTI applications is low, at an estimated 6% in 2017-18. In this lies the genius of the Act. The Act draws its teeth from the State’s passion for paper work and files. The RTI requires that applications are submitted on paper, acknowledgment slips are mandatory, and responses too have to be given in a written format, on paper. In essence, every RTI application requires the system to open a file. And once a file has been opened, the system has to respond.
But even as the State has found RTI applications difficult to ignore, reforms — reviewing internal rules and procedures, improving record management, and implementing Section 4 of the RTI, which mandates proactive disclosure of information — have been resisted. Instead the focus, across political parties (including, ironically the Congress, which brought the law to Parliament), has been on finding loopholes to weaken the law.
This resistance is unsurprising; after all, the RTI exposes government decision-making to scrutiny. This resistance doesn’t stem only out of a fear of exposing corruption, as is assumed. Rather, it comes from the challenge scrutiny poses to accepted norms of governmental decision-making.
Increased transparency creates new pressures on governance that need negotiation. It requires, for instance, striking a delicate balance between the need for discretion and the imperatives of transparency — how to ensure that transparency in appointments doesn’t curb governmental discretion to hire the right people? How to ensure that transparency doesn’t encroach on free and frank debate within government? How to ensure that transparency in political parties doesn’t encroach on the internal workings of parties?
This is where the information commissions play a critical role. As institutional mediators between citizens, their right to information and the State, it is the information commissions who shape norms (and limits) of transparency. While responding to citizen appeals, the commissions strive to strike a balance between transparency and modes of decision-making, while pushing boundaries on the acceptable limits of governmental transparency. Moreover, it is the information commissioners who have the mandate to initiate administrative reforms related to transparency. Of course, there are serious gaps in the performance of successive commissions that need to be addressed. But independence is a necessary precondition. Once the information commission is vulnerable, so is the spirit of the RTI. This is why the amendments are dangerous and must be resisted.
Yamini Aiyar is president and chief executive, Centre for Policy Research
The views expressed are personal