Governance Notes 05

Weaknesses in the Implementation of the Right to Information Act

• Conflict with Colonial-Era Secrecy Laws: The Right to Information (RTI) Act, 2005, fundamentally clashes with the pre-existing culture of secrecy institutionalized by British colonial legislation.
  • Official Secrets Act (OSA), 1923: Enacted by the British administration, its primary objective was to suppress espionage and dissent against the state, thereby protecting the interests of the colonial regime. As noted by legal scholar A.G. Noorani in his works on constitutional law, the OSA’s vague definitions of “secret” and “official document” grant excessive discretionary power to the executive, fostering a culture of non-disclosure.
  • Indian Evidence Act, 1872: Sections 123 and 124 of this Act grant privileges to the government to withhold documents related to the “affairs of the state” if their disclosure is deemed injurious to the public interest. This has historically been used to deny information access.
  • Second Administrative Reforms Commission (2nd ARC): The 6th Report of the 2nd ARC, titled “Right to Information: Master Key to Good Governance” (2006), strongly critiqued this culture. It stated that these laws “are based on the feudal premise that the rulers know what is good for the people and that the people need not know how they are being governed.”
• The 2nd ARC’s Recommendations on OSA:
  • The Commission argued that the RTI Act and OSA are fundamentally incompatible. It recommended the repeal of the Official Secrets Act, 1923, and its replacement with a specific chapter in a proposed National Security Act (NSA). This new chapter would contain narrowly defined provisions to protect genuinely sensitive information concerning national security.
  • The government rejected this recommendation, arguing that less than 3% of official information falls under the purview of OSA, while the remaining 97% is accessible under RTI, suggesting the two can coexist.
• International Comparison and Declassification Policy:
  • India’s RTI framework was partly inspired by the Freedom of Information Act (FOIA) of the USA (enacted 1966). A key feature of the US system is a mandatory declassification timeline. Most classified information is automatically declassified and made public after a period, typically 25-30 years.
  • In contrast, under India’s OSA, once information is classified, there is no provision for its automatic declassification. The 2nd ARC recommended adopting a similar 30-year declassification rule for all but the most sensitive documents, a recommendation that remains unimplemented.

Problems with Information Commissions

• High Pendency and Delays: As of mid-2023, reports from civil society organizations like the Satark Nagrik Sangathan (SNS) indicate a pendency of over 3.15 lakh appeals and complaints across the Central Information Commission (CIC) and State Information Commissions (SICs). This crippling backlog renders the 30-day time limit stipulated in the RTI Act largely ineffective, defeating the purpose of timely information delivery.
• Credibility and Composition:
  • A significant criticism, also highlighted by the 2nd ARC, is the overwhelming appointment of retired civil servants to the Information Commissions. The argument is that these individuals, having spent their careers within the framework of the OSA and a culture of secrecy, may lack the requisite mindset to champion transparency aggressively.
  • This has led to what critics term a “credibility crisis,” where the commissions are perceived as being sympathetic to the government departments they are meant to hold accountable.
• Lack of Enforcement Powers:
  • Under Section 20 of the RTI Act, Information Commissions have the power to impose penalties on Public Information Officers (PIOs) for failing to provide information without reasonable cause.
  • However, studies have shown a very low rate of penalty imposition and an even lower rate of collection. The commissions lack the powers of a civil court to enforce their own orders, such as through contempt proceedings or attachment of salary. They are dependent on the parent departments of the erring officials to implement the penalties, which often does not happen.
• Persistent Vacancies: Both Central and State governments have been criticized for delaying appointments to Information Commissions, often leaving them to function without a Chief Information Commissioner or at significantly reduced strength. For instance, in 2022-23, several SICs were functioning without a Chief, which severely hampers the disposal of cases and overall administration.

Solutions Proposed for Strengthening Information Commissions

• Amending Appointment Procedures (Sections 12 & 15): The summary refers to Sections 11 and 12, but the relevant sections are Section 12 (Constitution of CIC) and Section 15 (Constitution of SICs).
  • 2nd ARC Recommendation: To enhance credibility and diversity of perspective, the 2nd ARC recommended that at least half of the members of Information Commissions should be from non-civil service backgrounds. It specifically suggested inducting eminent individuals from fields like academia, law, journalism, and civil society organizations (CSOs) with a proven track record in the domain of transparency and public life.
• Augmenting Resources: The commissions require adequate financial and human resources to manage the massive caseload. This includes increasing staff strength for case processing, research, and administrative support to enable timely disposal.
• Mandatory and Timely Appointments: To address the issue of vacancies, it is proposed that the appointment process be made time-bound and mandatory, removing the discretionary delays by governments.
• Granting Contempt Powers: A crucial reform suggested is to grant the Information Commissions the power of contempt of court. This would empower them to enforce their own judgments and penalize non-compliance by government departments, thereby ensuring their orders are not flouted with impunity.

Response of the Government of India: The RTI (Amendment) Act, 2019

The 2019 amendment significantly altered the original 2005 Act, leading to widespread criticism.

Feature	RTI Act, 2005 (Original)	RTI (Amendment) Act, 2019 (Changes)
Status	Chief Information Commissioner (CIC) and Information Commissioners (ICs) enjoyed the status equivalent to the Chief Election Commissioner (CEC) and Election Commissioners (ECs) respectively.	This equivalence was removed. Their status was downgraded.
Tenure	Fixed tenure of 5 years or until the age of 65 years, whichever is earlier. No provision for reappointment.	Tenure for both CIC and ICs at Central and State levels to be “for such term as may be prescribed by the Central Government.” (Later notified as 3 years).
Salary & Allowances	Salary of CIC and ICs was pegged to that of the CEC and ECs, respectively. State Commissioners’ salaries were pegged to ECs and the Chief Secretary of the state.	Salaries, allowances, and other terms of service for both Central and State commissioners will be determined by the Central Government.
Autonomy	The fixed tenure and high status (equivalent to Supreme Court judges for CEC/ECs) provided a strong security of tenure, insulating them from executive pressure.	The Central Government now controls tenure and salary, which critics argue severely compromises the functional and financial autonomy of the commissions.

• Government’s Arguments:
  • The government justified the changes by arguing that the Election Commission is a constitutional body, whereas the Information Commission is a statutory body. Therefore, their status and service conditions cannot be equated.
  • It claimed that delinking salaries from the EC allows the government the flexibility to prescribe higher salaries if needed.
  • Regarding tenure, it argued that the provision for re-nomination (though not explicitly in the act, it is a possibility) could be beneficial.
• Critics’ Arguments:
  • Critics, including former CIC Wajahat Habibullah and activist Aruna Roy, argued that the amendments make the Information Commissions subservient to the central executive.
  • By controlling tenure and salary, the government can effectively reward pliable commissioners and penalize independent ones, creating a chilling effect.
  • This is seen as a systematic dilution of the RTI framework, turning the commissions into “caged parrots” or extensions of government departments rather than independent oversight bodies.

Misuse of RTI

• There is a perception, often highlighted by government officials, that the RTI is misused by vested interests for blackmail, settling personal scores, or filing frivolous and vexatious applications that burden the administration.
• 2nd ARC Recommendation: To tackle this, the commission suggested an amendment where a PIO could reject an application if it is deemed to have no relation to any public interest. This decision would be taken in consultation with the Information Commission.
• Critique of the Recommendation: RTI activists have strongly opposed this suggestion. They argue that the term “public interest” is subjective and giving PIOs the power to reject applications on this ground would create a major loophole for denying legitimate information. The solution, they contend, is not to restrict the supply of information but to manage its demand and application more effectively.

What Should Be Done: A Broader Perspective on Solutions

• Proactive Disclosure (Section 4): The most effective way to curb misuse and reduce the burden of applications is the robust implementation of Section 4 of the RTI Act. This section mandates that all public authorities must proactively disclose information through their websites and other means. If information regarding government schemes, expenditures, and decisions is readily available in the public domain, the need to file individual RTI applications would drastically reduce.
• Record Management and Digitization: A common reason for denial of information is that records are “missing” or “destroyed.”
  • The 2nd ARC recommended the use of Management Information Systems (MIS) for the scientific storage and digitization of all government records.
  • This, combined with proactive disclosure under Section 4, ensures that information is preserved and made accessible, preventing its deliberate destruction to evade accountability. Proper implementation of the Public Records Act, 1993 is also critical.
• Addressing the Colonial Mindset of Bureaucracy: The success of RTI is hindered by a deep-seated bureaucratic culture that views citizens as subjects rather than rights-holders. This “mai-baap” attitude leads to resistance in sharing information. Sensitivity training and capacity building for government officials are essential to inculcate democratic values and an understanding of the importance of transparency.
• Lack of Awareness: RTI usage is heavily skewed towards urban, educated populations. There is a significant lack of awareness in rural and marginalized communities who stand to benefit the most from it. CSOs, NGOs, and the media must play a proactive role in conducting awareness campaigns and simplifying the application process. Enabling online filing and payment has been a positive step in this direction.
• Protection of RTI Activists:
  • The murders of and attacks on RTI activists are a grave concern. According to the Commonwealth Human Rights Initiative (CHRI), over 100 activists have been killed since 2005 for exposing corruption.
  • The Whistle Blowers Protection Act, 2014, was enacted to provide a mechanism for protecting those who expose wrongdoing. However, subsequent amendments have been criticized for diluting its provisions, for instance, by disallowing disclosures that are protected under the OSA.
  • Urgent measures are needed, such as ensuring the anonymity of applicants where requested and strengthening the legal framework for whistleblower protection.
• Impact of the Digital Personal Data Protection (DPDP) Act, 2023:
  • This new law has amended Section 8(1)(j) of the RTI Act.
  • Previously, personal information could be denied only if it had no relation to public activity/interest OR would cause an unwarranted invasion of privacy, AND the authority was satisfied that the larger public interest did not justify disclosure. This provided a balancing test.
  • Now, the DPDP Act allows for a blanket exemption for all “personal information.” Critics argue this drastically narrows the scope of the RTI Act, as much of the information related to the functioning of public officials (e.g., their qualifications, assets, performance) can now be denied under the garb of “personal information,” undermining the very core of the transparency law.

Prelims Pointers

• The Right to Information (RTI) Act was enacted in 2005.
• The RTI Act is in conflict with older laws like the Official Secrets Act, 1923, and the Indian Evidence Act, 1872.
• The Second Administrative Reforms Commission (2nd ARC) in its 6th report, “Right to Information: Master Key to Good Governance”, recommended the repeal of the Official Secrets Act.
• India’s RTI law is partly inspired by the Freedom of Information Act (FOIA) of the USA.
• Section 4 of the RTI Act mandates proactive disclosure of information by public authorities.
• Section 8 of the RTI Act lists the exemptions from disclosure of information. Section 8(1)(j) deals with personal information.
• Section 20 of the RTI Act provides for penalties on erring Public Information Officers (PIOs).
• The RTI (Amendment) Act, 2019, changed the provisions related to the tenure, salary, and status of Information Commissioners.
• Under the 2019 amendment, the tenure of Information Commissioners was reduced from 5 years to 3 years.
• The salaries and allowances of both Central and State Information Commissioners are now determined by the Central Government.
• The Digital Personal Data Protection (DPDP) Act, 2023, amended Section 8(1)(j) of the RTI Act, creating a broad exemption for “personal information.”
• Information Commissions (Central and State) are statutory bodies, not constitutional bodies.

Mains Insights

1. Conflict of Ideologies: Transparency vs. Secrecy

   • Cause-Effect: The core challenge to RTI’s success is the deep-rooted administrative culture of secrecy, a legacy of the colonial Official Secrets Act. This culture manifests as bureaucratic resistance, misuse of exemption clauses (Section 8), and deliberate destruction of records. The RTI Act attempts to impose transparency on a system designed for opacity, leading to constant friction.
   • Historiographical View: The debate reflects two opposing views of governance. The colonial view treats information as a possession of the state. The democratic view, enshrined in RTI, treats information as a public good to which citizens have a right. The incomplete success of RTI shows that legislative change alone is insufficient without a corresponding shift in administrative culture.

2. Institutional Weakening and Erosion of Autonomy

   • The effectiveness of any oversight mechanism depends on its independence. The RTI (Amendment) Act, 2019, is a prime example of institutional weakening. By giving the Central Government control over the tenure and salaries of Information Commissioners (both at the Centre and States), it fundamentally compromises their autonomy.
   • Analysis: This move can be analyzed as a shift from a rights-based framework to a government-controlled one. An Information Commissioner who depends on the executive for their service conditions is less likely to pass orders that are inconvenient to that executive. This represents a structural blow to the RTI regime.

3. RTI as a Double-Edged Sword: Empowerment vs. Misuse

   • Debate: While RTI has been a revolutionary tool for exposing corruption (e.g., Adarsh Scam, 2G Spectrum Allocation) and empowering citizens, the narrative of its “misuse” is often used to justify diluting its provisions.
   • Perspective: The solution to misuse should not be to restrict the right itself, as that would be a classic case of throwing the baby out with the bathwater. A more constructive approach is to strengthen proactive disclosure under Section 4. When information is openly available, the scope for both filing applications and using the obtained information for blackmail diminishes significantly.

4. The Chilling Effect of Legislative and Extra-Legal Threats

   • The RTI ecosystem is being squeezed from two sides. On one hand, legislative changes like the 2019 Amendment and the DPDP Act, 2023, are shrinking the legal scope of the Act. On the other hand, physical attacks on and murders of RTI activists create a climate of fear.
   • Consequence: This combined “chilling effect” discourages citizens and activists from using the law. The risk-reward calculation changes when seeking information can lead to physical harm or when the law itself is too weak to guarantee results. This threatens to make the RTI Act a “paper tiger.”