Sixteen years on, RTI Act 2005 and India
By Chitta Behera
The
RTI Act 2005 was partially notified on 15th June, and rest of it, after
120 days, i.e. on 12th October of the same year. Earlier, a toothless
law ‘Freedom of Information Act 2002’ (https://indiankanoon.org/doc/
Came the D-day on 12th May 2005, when
both houses of Parliament unanimously passed the RTI Bill on conclusion
of marathon and tumultuous debates. Political Parties, Civil Society
Groups, Mass Media and even a sizable segment of bureaucracy who
nevertheless cherished the face-lift of a gargantuan but degenerate
officialdom, were all agog with a new hope that the colonial era of
Official Secrets Act 1923 has given way to a new epoch of transparency
and accountability ushered in by the historic RTI Act 2005 (https://rti.gov.in/rti-act.
Concurrently,
another shocker, nay, a bombshell was thrown at RTI Act by none else
than the Dept of Personnel and Training, Govt of India under the charge
of then PM Dr. Manmohan Singh. The Ministry was not only the author of
the draft RTI law but also the authority to notify the Rules, monitor
its implementation and remove the difficulties, if any, impeding the
process of its implementation. But, taking the cue from the then
President APJ Abdul Kalam who while assenting the RTI Bill had advised
that the file-notings should be kept outside the RTI purview, there had
begun serious deliberations between PMO, Cabinet Secretary and Ministry
of Personnel, as to whether the RTI Act needed an amendment to achieve
the said purpose. Meanwhile the DoPT, in its website, had displayed an
FAQ on RTI Act, which had mentioned inter alia that the ‘information’ as
defined in Section 2(f) of the Act didn’t cover ‘file-notings’ as such.
As if adding fuel to the fire, quite some public authorities across the
country, citing the DoPT’s truncated definition of ‘Information’
started denying the copy of file-notings to the RTI Applicants, but the
brave and righteous Chief CIC Sri Wajahat Habibbula, not only took the
DoPT to task for their outrageously skewed perception of ‘information’,
but also asked them to remove the same forthwith from their website.
Still then, the DoPT didn’t relent and continued its display as before.
Such a recalcitrant attitude of the DoPT triggered off a country-wide
chain of resounding protests, following which the proposed Amendment to
RTI Act for exclusion of file-notings was shelved for good. (vide
NCPRI-mobilized collective Memorandum of Protest dated 27 Oct 2009
submitted to then PM Dr. MM Singh). We from Odisha Soochana Adhikar
Abhijan did also join the upsurge of national angst against the infamous
dictate of DoPT on file-notings along with the demand for its immediate
removal.
The next threat to RTI Act came again
from the Supreme Court, when a Division Bench of Justice Ananga Patnaik
and Justice Swatanter Kumar passed a queer Judgment on 13 September
2012, mandating inter alia that every hearing of an Appeal by the
Information Commission at Central or State level ought to be conducted
by a Division Bench, which must comprise at least a Judicial Member.
Besides, they also ruled that at least 50% of the composition of a
Commission and Chairperson of every Commission must be Judicial Members.
The Bench further ordered the Government to amend the RTI Act 2005 to
make room for the reforms suggested by them. Such a weird judgment threw
the country’s RTI regime instantly out of gear, and quite many Chief
Information Commissioners who were not judicial members as such, stopped
their work immediately and ordered the members and benches of the
Commission to stop their respective works too. Country-wide resentment
flared up against the unconscionable Judgment, and as if to salvage the
apex court from a sacrilegious ignominy,a specially constituted Bench
comprising Justice A. K. Patnaik and Justice A. K. Sikri, on 3rd Sept.
2013 erased the court’s 13 September 2012 Judgement. (https://timesofindia.
Followed
then a subversive bid to sap the strength of RTI law, by the DoPT under
the NDA Government led by PM Modi (vide Circular No.1/5/2016-IR dated
31.03.2017). The Central RTI Rules 2012, which was on the whole a
user-friendly instrument, was sought to be supplanted by a retrogressive
and anomalous one. For instance, the Draft RTI Rules 2017 allowed the
withdrawal of a complaint or an appeal by the complainant/ appellant if
they wish so, and also the closure of a case in the event of their
death. Making of a Complaint under Section 18, which didn’t require any
fee or format earlier, became very, very complicated by way of
stipulation of so many conditions that involved costs, time and risks.
Quixotically enough, the Draft Rules provided for a Complaint to be
amended during the process of hearing itself. Unlike the Rules 2012
where the personal presence of the Respondent/ PIO was obligatory, the
draft Rules liberally offered him an additional option to him, that is,
to appear through an authorised representative. Unlike the earlier
Rules, the draft Rules made it obligatory for the appellant/ complainant
to send a copy of their appeal/ complaint to the respondent, failing
which the appeal/complaint won’t be registered. Further the Draft Rules
took away the power of the Commission to delegate enquiry in respect of
any matter to any officer outside its authority, contrary to the
spacious provision made under Section 18(3) of the Act. Above all, the
Draft Rules provided for postal charges beyond Rs. 50/- to be collected
from the applicant, whereas the Central Govt had designated the Postal
Dept to carry out all the to and fro correspondences between the
Applicant/Appellant and all the Public authorities under the control of
the Central Government, with no cost to be incurred by an Applicant/
Appellant. In response to the said Draft Rules, a veritable deluge of
protests and condemnations by all sections of society overtook the
Government’s arbitrary bid to tinker with an established RTI regime. A
Joint Rejoinder by Odisha Soochana Adhikar Abhijan and Bhastachar
Birodhi Abhijan dated 15 April 2017 demanding the withdrawal of Draft
RTI Rules 2017 was also sent to DoPT, GoI. Ultimately, the Draft RTI
Rules was pushed to the dustbin of history, and a celebrated maxim of
democracy- ‘Eternal Vigilance is the Price of Liberty’ got vindicated in
flying colours once again.
The NDA Government
after returning again to power in early 2019 moved an RTI (Amendment)
Bill 2019 and got it hurriedly passed with a view to weakening the
relative immunity of the Information Commissions at both Central and
State levels, which they enjoyed under the parent RTI Act. The Bill
provided for the Central Government’s absolute discretion in respect of
determination of tenure, salary and allowances and terms and conditions
of service of every Information Commissioner. It goes without saying
that the underlying motive of this enactment was to ensure that the
Commissions and Commissioners, in their decisions or functions, do never
ignore or overstep the hidden agenda of the powers-that-be at the
Centre. Though this Amendment has a long-term debilitating impact on the
functioning of Information Commissions all across the country, no vocal
dissent was however heard from any of the incumbent Commissioners, nor
any strong resistance found visible from among the civil society
groups.
During these more than 16 tumultuous
years, the most challenging issue that the RTI has ever faced and is
still facing is whether the political parties would be considered as
Public Authorities under Section 2(h) of the Act, and accordingly liable
to disclose the information held by them including those pertaining to
sources and disposal of their funds. After hearing a joint complaint
filed by ADR (Association for Democratic Reforms) and Mr. Subhas
Agarwal, a full Bench of the Central Information Commission had ruled on
3rd June 2013 that six national parties, namely Congress, Nationalist
Congress, BJP, CPI, CPI(M) and BSP fell within the RTI ambit, and
directed them to put in place the necessary arrangements so as to share
the information with the public as and when required. But none of the
parties responded to CIC’s direction, and the CIC had to issue a
show-cause for their non-compliance in November 2014. Meanwhile, before
the expiry of UPA-2 Government, an RTI Amendment Bill was moved in
Parliament with a view to excluding the political parties from the RTI’s
ambit. Due to strong country-wide public protest, the Bill was referred
to the Parliamentary Standing Committee. But, before the Committee’s
Report could be presented before the House, the tenure of Lok Sabha had
expired. The CIC again called all the parties for a hearing on 7 January
2015, but alas! All the parties in unison boycotted it. In March 2015
the CIC in their decision expressed helplessness saying that they were
bereft of tools to manage the wilful non-compliance of the parties.
However, as matters stood thus, on 21 December 2020 the self-same
Central Information Commission in course of two decisions staged a
shameful volte face vis-à-vis their earlier decision, The Commission,
while disposing the two cases relating to electoral bonds ruled that
people/citizens/voters do not have or should not have any interest in
how, and from where, and from whom the political parties get their
money. Now that the avowed sentinel of RTI, the Central Information
Commission has been self-exposed as an effete institution par excellence
vis-à-vis the high and mighty political parties, another ray of hope
still shines amidst the fuzzy clouds, is the PIL filed in the Supreme
Court in April 2019 by Shri Ashwini Kumar Upadhyay, a BJP leader, with a
prayer to declare the registered political parties as ‘public
authority’ under the RTI Act. The Supreme Court has issued a notice to
the Centre and the Election Commission to explain as to why the
political parties won’t be declared as public authorities in order to
make them transparent and accountable to the public at large. The
ultimate fate of this PIL being as such unpredictable, the Apex Court
can be impacted in a wholesome direction if and only if the people
irrespective of their political affiliations and persuasions rise in
unison to demand the inclusion of political parties within the RTI
ambit.
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Advocate Chitta Ranjan Behera, Advisor to Odisha Soochana Adhikar Abhijan, Mob-9437577546
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