Law at crossroads:16 Years Of Right To Information Act

12th October 2021 marked 16 years since the implementation of the Right to Information Act, 2005. The foundations of the law were laid by various Supreme court judgements which held that the right to information form an integral aspect of the Right to Freedom of Speech and Expression under Art.19. An equal strong impetus for statutory recognition was the strong grassroots campaign for Right to Information in rural Rajasthan. In 16 years since its implementation, the law has empowered the ordinary citizen to exercise control over the corrupt and arbitrary exercise of state power. To mark the 16th anniversary of the implementation of the RTI Act, the Satark Nagrik Sangathan (SNS) has released a report titled Report Card on the Performance of Information Commissions in India 2021' on the performance of information commissions across the country based on information accessed under the RTI Act. The report examines the performance of all 29 commissions in India in terms of the number of appeals and complaints registered and disposed of by them, number of pending cases, estimated waiting time for the disposal of an appeal/complaint filed in each commission, frequency of violations penalised by commissions and transparency in their working. The Report shows that three State Information Commissions in the states of Jharkhand, Tripura and Meghalaya are completely defunct as no new commissioners have been appointed upon the incumbents demitting office. The report further notes that 3 more state commissions- of the states of Nagaland, Manipur and Telangana are currently headless i.e. functioning without a Chief.

This is not the first time the organisation has come out with a report exposing the shocking non-compliance with the statutory requirements under the Right to Information Act, 2005. In 2018 RTI activists Anjali Bhardwaj, Commodore Lokesh Batra and Amrit Johri had filed a petition before the Supreme Court of India seeking expeditious filling up of vacancies in Information Commissions. In February 2019, in Anjali Bhardwaj vs Union of India the Supreme Court had issued a slew of directives regarding the filing up of vacancies in Central and State Information Commissions directing that: vacancies be filled up within 6 months; vacancies be advertised well in time and selection criteria adopted by search committee be made public. This writ petition without writs, it was hoped, would put an end to the deliberate negligence in not filling vacancies of posts of Information Commissioners and thus dilute the mechanism set up under the RTI Act. The findings of SNS's 2021 Report on the functioning of Information Commissions suggests that reality has belied that hope and that the directives have remained only on paper.

Ms.Anjali Bhardwaj, the petitioner in the case, is slightly more optimistic about the impact of the Supreme Court judgement on the ground-level in terms of vacancies and appointments made. Speaking to LiveLaw, she points out that there has been a marked difference in the number of vacancies since the judgements in Anjali Bharadwaj vs Union of India was delivered. Taking up the example of the Central Information Commission she points out that at the time of filing of the writ petition before the Supreme Court there were only 4 functioning CICs effectively meaning that there were 6 vacancies, whereas currently there are only vacancies at the CIC. The impact can also be seen in the functioning of State Information Commissions, she feels. She points out-"the State Information Commissions at Telangana and Andhra Pradesh at the time of filing of the writ petition were completely non-functional, but now, they are functioning albeit at less than statutorily mandated capacity." She goes on, "so you see, in a way, the Supreme Court's directions had a huge impact." In her opinion, the fact that Supreme Court or other courts monitored these appointments made a huge difference to the issue of vacancies in the Information Commissions. Ofcourse, she goes on, "as the SNS report points out there is much to be desired both at the central and at the state-level."

However, the examples Ms.Bhardwaj gives begs the question- are filing writ petitions before different constitutional courts the long-term solution to the issue of vacancies in Information Commissions? As Ms.Bhardwaj' herself points out, since 2014 there hasn't been a single appointment to the Central Information Commission without the intervention of the courts. Is that an example of the Supreme Court's activism in matters of executive functioning or a symptom of the failure on part of the executive to comply with statutory requirements? In 2021 Ms.Bhardwaj filed another writ petition before the Supreme Court of India seeking compliance on part of the Central Government with respect to the guidelines issued by the Supreme Court in its judgement delivered in Anjali Bhardwaj vs Union of India as regards the posts and vacancies in Central Information Commissions. The matter was listed twice in the months of August and September yet not taken up.

The Supreme Court in its judgement in Anjali Bhardwaj Case not only made scathing observations on the shocking vacancies across Information Commissions in India which crippled their functioning but also noted the lack of diversity in the pool of applicants for the post of Information Commissioners and the selections ultimately made. The Apex Court had observed that- "As can be seen, any person of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance is qualified to become Chief Information Commissioner or Information Commissioner…….we observe is that all those persons who have been selected belong to only one category, namely, public service, i.e., they are the government employees." The court's list of directives included a direction that persons of eminence in public life with wide knowledge and experience in all the fields mentioned in Ss. 12(5) and 15(5) of the Act, namely, law, science and technology, social service, management, journalism, mass media or administration and governance, be considered by the Committees under Ss. 12(3) and 15(3) of the Act for appointment as Chief Information Commissioner or Information Commissioners. The directives also enjoined that shortlisting be done on the basis of objective and rational criteria.

On this front, nothing much seems to have changed on the ground level. The majority of the Information Commissioners at the Centre and State level continue to be bureaucrats and government employees. As Ms. Bhardwaj points out "being a bureaucrat by itself is not to question a person's credibility but the cause of diversity needs to be furthered in light with the spirit of the judgement." Diversity has to be pursued without compromising on the lack of arbitrariness in choosing people from other fields like law, journalism or social activism. She points out that the Supreme Court had also emphasised on the need to have 'objective criteria' and the need to make the names and criteria of the candidates who applied for the posts publicly available.

Interestingly, in the recent round of selections for the Central Information Commission the Leader of Opposition, who forms a part of the Selection Committee for Information Commissioners, had moved a Dissent Note stating that the appointments had been made in deliberate ignorance of the Supreme Court's observations in Anjali Bhardwaj vs Union of India by not making the names and criteria of the candidates publicly available. The Dissent note further pointed out that "despite the categorical directions of the Hon'ble Supreme Court the names shortlisted by the Search Committee consisted only of bureaucrats despite a large number of academicians, scientists, historians, human rights activists, etc applying for the post."

Echoing a similar concern as Ms.Bhradwaj, at a recent event to mark 16 years since the implementation of the RTI Act, Retd. Justice Madan B.Lokur wondered why, despite a Supreme Court judgement in 2019 laying down that vacancies be filled up within 6 months vacancies across information commissions were left unfilled. As he puts it, the deliberate practice of leaving vacancies unfilled "undermines" the RTI Act.

How is the act of deliberately leaving posts vacant across information commissions undermining the RTI Act one may wonder? RTI Act sets up an internal mechanism of PIOs, Information Commissioners and Chief Information Commissioners responsible for time-bound delivery of information. These officials also act as the appellate mechanisms in case information is denied. If vacancies are left unfulfilled it renders the entire mechanism futile. In this light, Justice Lokur observations that "deliberate negligence" of leaving vacancies unfilled does seem like a method to "undermine" the power that the Right to Information Act, 2005 gives to common citizens to be able to question governmental authority.

RIGHT TO INFORMATION AND COURTS

One aspect in which the Right to Information Act, 2005 has been subject to litigation has been in the way the institutions and mechanisms set up under it are functioning. The other aspect has been with respect to the applicability of the RTI Act, 2005. Various petitions have been filed before courts on the issue of the ambit of RTI Act, 2005 because under the Act only a "public authority" as defined under S.2 (h) is mandated to provide information in response to an RTI application. Through various judgements, the Courts have expanded the ambit of the RTI Act by holding that institutions, posts and offices fall under the definition of "public authority". In the landmark case of Central Public Information Officer, Supreme Court of India vs Subhash Chandra Agarwal, the Supreme Court held that the CJI's office falls under the purview of RTI Act as it is a "public authority". While some pleas have ended with Apex Court pronouncements clarifying the ambit of RTI Act, some pleas concerning the applicability of RTI to PM-CARES Fund, Electoral Bonds and Political Parties have for long been pending before constitutional courts.

It maybe recalled that the Delhi High Court is currently hearing a plea challenging PMO's order rejecting an RTI application stating that PM CARES was not a "public authority" within the meaning of Section 2(h) of the RTI Act. In its reply as a respondent to the plea, The PMCARES-Fund has argued that it is not "public authority" within the meaning of Section 2(h) of the RTI Act inasmuch "PM CARES Fund has been set up as a public charitable trust and is not created by or under the Constitution of India or by any law made by the Parliament or by any State Legislature… this Trust is neither intended to be or is in fact owned, controlled or substantially financed by any Central Government or State Government or any instrumentality of the any Government. In other words, there is no control of either the Central Government or any State Government/s, either direct or indirect, in functioning of the Trust in any manner whatsoever."

PM-CARES has been sought to be included within the ambit of RTI Act since the trustees are public authorities and the fund received large amount of public funds. As Justice Madan Lokur recently pointed out- "despite PM-CARES being a public fund to which government employees and average citizens had donated crores and crores of money, there is no information on how the money is being spent". He also pointed out that the audit report for the year 2020-2021 has not been made available yet in the public domain. Ms.Bhardwaj too echoed similar concern with respect to the PM-CARES Fund and wondered whether it was apt in a democracy people for people to have the right to have information about how public institutions headed by people holding 'high-offices' and dealing with public money was being utilised.

The litigation over the inclusion of PM-CARES Fund is still a relatively fresh issue. Some other issues regarding the applicability of RTI Act have been contested for even longer. The issue of political parties falling within the ambit of RTI Act has had its own tumultuous journey over many years. The Central Information Commission had in its order dated 3.06.2013 declared that political parties are public authorities for the purpose of RTI Act. In pursuance of this, the CIC order had said, all the information about the contributions received by these parties as well as their annual audited accounts, as and when submitted to the Commission, are put in public domain.

So why hasn't there been information out in the public domain regarding the internal finances and functioning of political parties despite the CIC order? Ms.Bhardwaj points out that though there has been no stay on that order by any court, all political parties across the spectrum have refused to entertain RTI applications in blatant non-compliance with the CICs order. She further points out that parties have opted to neither challenge CICs order before the courts nor have they taken steps to comply with the Order. Multiple pleas have been filed before the Supreme Court on the grounds of non-compliance with the CIC order and the declaration of political parties as public authority under S.2(h) of the RTI Act. In most of the pleas, not even a notice has been issued to respondents.

Similar trajectory reflects in the case of Electoral Bonds scheme. The Electoral Bonds scheme, which was ironically brought with the stated objective of "bringing in more transparency in electoral funding", has been kept out of the purview of the Right to Information Act. In any democracy, the foundation of trust in political parties is measured by the transparency in its electoral funding mechanisms. As Ms.Bhardwaj explains, "Political parties which go on to form governments will work for those who fund them and take decision keeping in mind their interest. In this light, isn't the common man entitled to know who is funding which political party. Is there any greater 'public interest' than that?" The Central Information Commission seems to disagree with that notion for in 2020, the CIC held that disclosure of names of political parties to whom contributions are made under the electoral bonds and the donees thereof, is not in public interest. Almost 4 years have passed since the introduction of the Electoral Bonds scheme yet there hasn't been any decision on its legality or the applicability of Right to Information Act.

When one takes into account how Information Commissions are functioning below capacity, distressing reports of RTI Activists being killed and pleas on applicability being pending for years and information sought under RTI application being arbitrarily denied it may seem like the Right to Information Act, 2005 is failing. If not failing, As Justice Madan Lokur put it- " being subverted by information not being collected, not being shared, appointments not being made, persons not applying are getting selected and appeals being kept pending." However, not everything is so bleak. In the State of Rajasthan where the Right to Information movement was launched, the state government has launched the Jan Soocha Portal with the aim of providing government information at the click of a button. The portal is a realisation of the true intent behind S.4 of the RTI Act, 2005 which requires public authorities to proactively disclose information so that beneficiaries do not have to run from pillar to post trying to figure out what went wrong and how to set it right. Hopefully, this is the beginning of public authorities and governments changing their adversarial outlook toward the RTI Act and towards the realisation of the importance of having information on governmental functioning out in the public domain. After all having access to information and using it to ensure governmental accountability strengthens state capacity. It is also an incredibly powerful tool to empower the very people for whom governments are taking efforts to ensure last-mile delivery of goods and services. As Ms. Bhardwaj points out the empowering potential of the RTI Act can be seen from the fact that despite various methods being adopted to undermine the RTI Act, over 60 lakh RTI applications are filed in India every year much higher than at any place in the world. These applications are not only filed by the elite living in metropolitan cities but by "people at the margins" who are most dependent on the delivery of government services.

On wonders how this immensely empowering legislation can be protected and strengthened in light of repeated attempts to undermine and subvert the intent of the legislation. Ms.Bhardwaj and Justice Lokur both seem to be in agreement that there is no simple solution. When asked what strategy can common people adopt to protect this immensely empowering piece of legislation, Ms.Bharadwaj feel that since RTI has been the result Supreme Court judgements and a mass grassroots movement, a similar combined effort needs to be made on all fronts- by approaching courts, people's monitoring of functioning of the institutions and creation of public pressure by disseminating reports like the one brought Satark Nagrik Sangathan, strong advocacy at the grassroots-level, taking matters to appropriate forums, etc to protect the valuable right provided by RTI. Justice Lokur too echoes a similar belief that the protection of the Right to Information Act, 2005 would require joint efforts by people, courts and institutions. Right to Information Act, 2005 is a piece of legislation that arose out of a sustained campaign by the masses and it has to be protected by the masses. As Ms. Aruna Roy poignantly put it in a recent piece to celebrate 16 years of the RTI Act, "You can circumvent, violate, and even amend a law – but you cannot amend a movement."

A movement led to its enactment and a renewed movement must lead to its protection.