India’s transparency regime

Context:

• India’s transparency regime is in trouble as the very institution mandated to guard it (Central Information Commission or CIC) has become responsible for its downfall.
• It had passed orders seeking transparency in many cases of public importance.
• However, the present set of Information Commissioners have together adopted a new jurisprudence that has created additional hurdles in a citizen’s quest for accountability.

Central Information Commission:

• Established under the Right to Information (RTI) Act 2005, it is the apex body under India’s transparency regime.
• Its most vital mandate is to decide the disclosure or the non-disclosure of information.
• Citizens can file applications under the Right to Information Act with any public body and are guaranteed a reply from the public information officer of that public body within 30 days.
• Under the RTI Act, when an applicant is denied information by a government department, the first appeal is made to the appellate authority in the department. If unresolved, the RTI applicant can move the office of the Central Information Commission (CIC)—for queries related to central government—or State Information Commission.
• Information Commissioners (ICs) appointed to the CIC are equal in status to the Chief Election Commissioner, and that of a Supreme Court judge; having a a five-year fixed term and terms of service.
• In its current form, Section 8 of the RTI Act lists ten exemptions, ranging from any information that may hurt national security, impede the process of ongoing investigations to cabinet papers and deliberations of the council of ministers.

Challenges to RTI:

• Centre’s dominance: After the amendments of 2019, the Centre gave itself powers to change and decide these terms whenever it wished, thereby striking at the independence of the commission and those who man it.
• Lack of public welfare orientation: The CIC has become more like a walking dead institution, where records will show that not a single order for disclosure has been forthcoming in matters of public importance.
• Delay in hearings: Cases at the CIC come up for a hearing roughly after a two year wait. If the matter is not already infructuous or lost its significance, one can look forward to the commission deciding one’s case.

• In a case seeking disclosure of documents relating to the making of the Unlawful Activities (Prevention) Amendment Act, 2019, the commission has resorted to keeping the matter pending for final order for more than three months now, something which is unheard of.

• Lack of transparency: In matters of public importance, such as cases seeking disclosure of files related to the national lockdown during COVID-19, or the case seeking disclosure of data pertaining to phone tapping orders passed by the Home Ministry, the Commission has adopted a new way of delegating its mandate — to decide cases — to the Ministry before it.
• Vagueness: In most cases, the Ministries reiterate their stand of non-disclosure, most often under vague grounds of national interest.
• Lack of procedure: The CIC refuses to accept any further challenge to such orders, therefore, refusing to do its duty of deciding the cases.

• One of the cardinal rules of natural justice is that no one should be a judge in their own cause.
• However, the commission now allows, or rather wants, the very Ministry that stands accused of violating the RTI Act to act as the judge in their own cause and decide whether a disclosure is necessary.
• Such as, CIC refused to hear the Internet Freedom Foundation’s challenge to the fresh non-disclosure order passed by the Home Ministry in the phone tapping case.

• Ultra-virus actions: In another case related to disclosure of non-performing assets and top defaulters of a co-operative bank, the matter was listed out-of-turn to issue a “stay” order against the Bank’s First Appellate Authority’s order for disclosure. A stay order is unheard of and there is no provision in the RTI Act for the same.
• High number of vacancies: information commissions are purposely deprived of commissioners to scuttle the effective functioning of the RTI Act.

Suggestions for future:

• Simplicity: Unlike court cases, RTI matters do not involve complex legal arguments and are simple to adjudicate.
• Reduce pendency: In May 2014, close to 35,000 appeals were pending before the CIC.

• In June 2019, about 31,000 appeals were pending, over 9,000 of those pending for over a year.

• Fill vacancy: Currently, four out of the ten positions of information commissioners are vacant.

• Several information commissions in the states were either non-functional or working at a reduced capacity.

• Prune the exemption list: In an RTI ratings report by the Canada-based Centre for Law and Democracy, India’s rank slipped from second position in 2011 to eighth in 2018.

• It flagged blanket exemptions from the RTI to “security, intelligence, research and economic institutes” and “information held by private entities which perform a public function”.

• Protect whistle-blowers: In March 2018, Nanji Sondarva was allegedly clubbed to death in Gujarat’s Rajkot district after filing an RTI application seeking details of a newly constructed road in his village.

• 84 RTI activists have been murdered since 2005 for seeking information on illegal construction, alleged scams in social welfare scheme.

• CIC as a constitutional body: the RTI is safeguarding a fundamental right guaranteed under the Constitution.

• Article 19 (1)(a) of the Constitution guarantees freedom of speech and expression to citizens, but without the RTI, one cannot express oneself, including while making an electoral choice.
• the Supreme Court has also interpreted RTI as a fundamental right—in 1975 and 1982.

• Political parties under RTI: Political parties are reluctant to share information with citizens.

• The CIC classified political parties as a public authority since they benefit from land allotted by the government at cheap rates, free air time with state broadcasters during elections, and are allowed to claim income tax exemptions.

Way forward:

• Citizens must mount intense pressure on authorities to act and appoint commissioners of integrity.
• Lawyers must help willing citizens take matters to court and seek justice.
• If there is a failure to do so, India will lose its cherished right to know.

Source: LiveMint