Sunshine Legislation

Any government serious about fighting corruption must strengthen the RTI regime. Unfortunately, key elements of an accountability framework await implementation

The freedom to question the government about its actions is the hallmark of a democracy. The Right to Information Act, passed in 2005, guarantees the citizens of India the right to question their government, and ensures that people no longer have to rely solely on elections to hold public functionaries accountable.

Every year, nearly 6 million information applications are filed across the country, making the RTI Act the most extensively used transparency legislation globally. National assessments have shown that a large proportion of these applications are filed by the poorest and the most marginalised. This is perhaps because they have understood the tremendous potential of the RTI law to empower them to access their basic rights and entitlements, especially in the absence of effective grievance redress mechanisms to address service delivery failures. For instance, when denied their share of subsidised rations on the pretext that the government was not supplying foodgrains to ration shops, residents of slum settlements in Delhi used the RTI Act to access the monthly stock registers of their shops. The records exposed rampant corruption in the public distribution system and were successfully used by people to hold officials accountable to ensure proper delivery of rations. The law has similarly been used by people to ensure delivery of minimum wages, pensions, healthcare, education, water supply and sanitation.

The RTI Act has initiated the vital task of redistributing power in a democratic framework and transforming the relationship between citizens and the government. People are using the law to question the highest offices of the country on their performance, their decisions, and even their conduct. Information has been sought regarding the educational qualifications of the prime minister and the expenditure incurred on his foreign travels, regarding assets of the Supreme Court judges and names of corporate loan defaulters of public sector banks.

The transparency law has been instrumental in unearthing mega corruption scandals like the Vyapam scam and the Adarsh scam. Human rights excesses, including encounter killings and enforced disappearances, have been questioned. More recently, information accessed under the RTI Act has been used to expose fallacious claims made by public functionaries. When the PM and the HRD minister claimed savings worth thousands of crores of rupees due to Aadhaar—it was stated that 40 million bogus ration cards and 80,000 bogus university teachers were detected due to Aadhaar—their assertions were queried. Unable to provide any evidence, the state swung into damage control mode, issuing clarifications and even rectifying parliamentary proceedings. Similarly, claims of demonetisation being a resounding success could not stand up to interrogation by RTI users.

INSTRUMENT OF POWER

The power of the RTI Act can also be gauged by the great lengths to which institutions have gone to shield themselves from scrutiny under the law. In an unprecedented move, the Supreme Court in March 2010 appealed before itself, challenging the judgment of the Delhi High Court directing—in response to an RTI application—the disclosure of asset-related information of judges of the apex court. The matter is still pending!

By giving every citizen of India the right to access government files and records, the RTI Act has created an army of 1.3 billion potential whistleblowers and auditors—roles traditionally played by officials working within the government. It is no surprise, therefore, that

those who have used the law to show truth to power have often had to pay a heavy price.

Scores of citizens across the country have been threatened, attacked and at least 70 have been murdered for using the law to access information exposing corruption and abuse of power. Nandi Singh was hacked to death in Assam for using the RTI Act to expose corruption in the public distribution system. In October 2016, Bhupendra Vira was shot at pointblank range in his home in Mumbai for accessing information to file complaints implicating the powerful land mafia.

The backlash has not been limited to attacks on users of the law. The legislation itself has not been spared. There have been several attempts by successive governments to denigrate the sunshine law—the first within one year of its enactment. The government wanted to remove file notings from the ambit of the law in order to prevent citizens from accessing information related to the decision-making process.

In 2013, when six national political parties were declared public authorities under the RTI Act, they came together, in a rare show of solidarity, to move an amendment bill in Parliament to exempt themselves from being answerable under the law.

The latest attempt to subvert people’s right to information is the government’s decision to sneakily list in Parliament an RTI Amendment Bill, in complete contravention of the principles of prelegislative consultation. Through the proposed amendments, the government seeks to centrally control people’s ability to access information by undermining the autonomy of information commissions.

The RTI law fixes the tenure of information commissioners at five years, subject to the retirement age of 65 years. The salaries of the chiefs of information commissions and the central information commissioners are effectively on par with those of judges of the Supreme

IT IS A TESTIMONY TO THE RELEVANCE OF THE RTI LAW THAT PEOPLE HAVE PROTECTED IT FROM ANY ATTEMPTS AT DILUTION. EACH MOVE TO AMEND THE LAW HAS BEEN MET WITH PUBLIC RESISTANCE

Court, and decided by Parliament. The fixed tenure and the exalted status conferred on commissioners under the RTI Act is to empower them to carry out their functions autonomously and direct even the highest offices to comply with the provisions of the law.

The RTI Amendment Bill, 2018, seeks to empower the central government to decide the tenure and salaries of all information commissioners in the country. The move will make commissions function like government departments by potentially making commissioners compliant with the wishes of the government at the Centre, lest their tenures or salaries are adversely impacted.

The proposed amendments come in the backdrop of the BJP government’s adamant inaction on filling vacancies in the Central Information Commission (CIC). Since May 2014, not a single commissioner of the CIC has been appointed without citizens having to approach courts. Out of a total sanctioned strength of 11 commissioners, there are currently four vacancies; four more, including the post of Chief Information Commissioner, will become due this year. The failure to make timely appointments is leading to huge backlogs of appeals and complaints, resulting in inordinate delays in the commission, which render the law meaningless for citizens.

It is a testimony to the power and relevance of the RTI law that people have persistently protected it from any attempts at dilution. Each move to amend the law has been met with tremendous public resistance—people from all walks of life have come together to save their right to information, which has been upheld as a fundamental right by the Supreme Court. Even this time, public opposition to the RTI Amendment Bill forced the government to defer its introduction in Parliament, at least for the moment.

Any government serious about fighting corruption and delivering good governance must necessarily strengthen the RTI regime, which provides a decentralised framework for citizens to expose corruption and abuse of power. In addition, forward linkages need to be forged—an effective anti-corruption and grievance-redress framework needs to be set up, so that exposure achieved through the use of the RTI Act can be converted into deterrent action against those responsible. Unfortunately, key elements of this accountability framework—the Lokpal law and the Whistleblower Protection Act—enacted over four years ago, await implementation. The Grievance Redress Bill, aimed at providing a timebound mechanism for looking into complaints of service delivery, which lapsed with the dissolution of the last Lok Sabha, is yet to be revived.

Statistical and anecdotal evidence indicates that the RTI Act, considered one of the most progressive pieces of information-access legislation in the world, has successfully initiated the process of infusing transparency and accountability in government functioning. It is only when an effective accountability framework is operationalised that we, the people of India, will reap the systemic and permanent gains of our transparency law.