Strengthening the Right to Information

The Right to Information (RTI) Act of 2005 has been a pivotal tool for ensuring transparency and accountability in India for nearly two decades. It has empowered citizens to expose corruption and hold authorities accountable, from uncovering irregularities in the delivery of basic rights to bringing to light opaque schemes like electoral bonds. However, the effectiveness of the RTI Act is being systematically weakened through various methods.

Delays in appointing information commissioners have rendered commissions ineffective, resulting in a growing backlog of appeals. When appointments do occur, they often favor retired officials or those with political connections, leading to a lack of strict enforcement of the law. Recent legislative changes, including amendments to the RTI Act and provisions in the Digital Personal Data Protection Act, 2023, have further diluted the law’s impact. As the RTI Act approaches its 20th year, it is crucial to address these challenges to maintain the transparency and accountability it was designed to promote.

History of Right to Information

1975-1977: Seeds of the Transparency Movement

During the Emergency period, civil liberties were suspended, highlighting the need for greater government accountability. This period sparked discussions about the right to information among activists and intellectuals. Although no legislative steps were taken, the experience of the Emergency laid the foundation for future transparency initiatives, as citizens recognized the dangers of an opaque government.

1975: Supreme Court Judgment on Right to Information

In State of U.P. v. Raj Narain (1975), the Supreme Court recognized the right to information as part of the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution. Later, in S.P. Gupta v. Union of India (1981), the Court reinforced this principle, stating that open government stems from the implicit right to know, with government transparency as the norm and secrecy as the exception.

1990: Mazdoor Kisan Shakti Sangathan (MKSS) Movement

The MKSS, based in Rajasthan, initiated a grassroots campaign for the right to information, focusing on access to local government records. Their “Jan Sunwai” (public hearings) exposed corruption in public works, galvanizing support for transparency. The movement became a model for RTI advocacy across India.

1997-2001: State-Level RTI Laws

Several states, including Tamil Nadu, Goa, Rajasthan, Karnataka, and Delhi, enacted their own RTI laws. These state-level initiatives, particularly Maharashtra’s robust RTI Act of 2002, served as valuable precursors to the national law, demonstrating public demand for transparency legislation across India.

2002: Freedom of Information Act

The central government passed the Freedom of Information Act, but it was never implemented. The act was criticized for its weak provisions and numerous exemptions, leading to continued pressure from civil society for a stronger national RTI law.

2005: Enactment of the Right to Information Act

The RTI Act came into force in October 2005, mandating timely responses to citizen requests for government information. It established Information Commissions at both central and state levels and imposed penalties for non-compliance. The Act was hailed as one of the most progressive transparency laws globally, covering all levels of government and even private bodies receiving substantial government funding.

2006-2010: Early Implementation and Impact

The early years saw a surge in RTI applications, exposing corruption, including the Adarsh Housing Society scam and irregularities in the 2G spectrum allocation. However, challenges such as backlogs in Information Commissions and resistance from the bureaucracy became evident.

2011-2019: Judicial Interventions and Expansion

The Supreme Court issued several rulings strengthening the RTI Act. In 2013, it mandated that political parties be considered public authorities under the Act, though implementation faced resistance. The assassination of RTI activists like Shehla Masood in 2011 highlighted the growing risks for information seekers. In 2019, the Court ruled that the Office of the Chief Justice of India (CJI) is a “public authority” under the RTI Act.

Right to Information (Amendment) Act, 2019

This amendment reduced the tenure of the Chief Information Commissioner (CIC) and Information Commissioners (ICs) from five years to three, with terms set by the central government. It also allowed the government to determine their salaries and removed pension deductions for prior government service.

2023 Amendment:

Section 44(3) of the Digital Personal Data Protection Act exempted all personal information from RTI disclosure, removing exceptions that previously allowed for its release.

Undermining the Effectiveness of the RTI Act

• Understaffed and Defunct Information Commissions

Many state information commissions are either non-functional or severely understaffed, leading to significant backlogs of appeals and complaints. According to the 2023-24 Satark Nagrik Sangathan report, 7 out of 29 information commissions were defunct at various times last year. Jharkhand’s commission has been non-functional for over four years, while Tripura and Telangana have been defunct for three years and one and a half years, respectively. At the Central Information Commission, 8 out of 11 posts remain vacant, contributing to over 4 lakh pending appeals and complaints across India. In states like Chhattisgarh and Bihar, fresh appeals may not be resolved until 2029.

• Dilution of the RTI Act Through Amendments

Recent legislative changes have significantly weakened the RTI Act. The 2019 amendment gave the central government control over the tenure, salaries, and post-retirement benefits of information commissioners, potentially undermining their independence. The Digital Personal Data Protection Act, 2023, further weakened the RTI by exempting all personal information from disclosure, even when there is a larger public interest. This has made it easier for authorities to deny information requests under the guise of privacy concerns.

• Lack of Penalties for Non-Compliance

Information commissions are failing to impose penalties on officials who violate the RTI Act, fostering a culture of impunity. The Satark Nagrik Sangathan report revealed that penalties were imposed in only 5% of the cases where they were warranted. This lack of consequences encourages public information officers to ignore or delay responses, undermining the RTI Act’s effectiveness.

• Political Appointments and Lack of Diversity in Commissions

Many critics argue that information commissions are dominated by retired government officials or politically connected individuals, raising concerns about their independence. This lack of diversity limits fresh perspectives and undermines the commissions’ willingness to enforce transparency laws, especially when politically sensitive matters arise. Furthermore, a recent report indicates that only 9% of all information commissioners appointed since the RTI Act’s inception in 2005 have been women.

• Threats and Violence Against RTI Activists

The hostile environment for RTI activists severely undermines the Act’s effectiveness. According to Transparency International India, nearly 100 RTI activists have been killed, and many others have faced threats, assaults, or false legal cases. Despite the passage of the Whistleblowers Protection Act in 2014, it remains unimplemented due to the government’s failure to establish the necessary rules, creating a climate of fear that discourages many citizens from using the RTI Act.

• Increasing Use of Exemption Clauses

Public authorities are increasingly invoking exemption clauses to deny information requests. The expanded scope of personal information exemptions is one example, while authorities frequently cite national security (Section 8(1)(a)) or commercial confidence (Section 8(1)(d)) to withhold information. For instance, the government refused to disclose details about the PM CARES Fund in 2023, citing these exemptions, which undermines the transparency the RTI Act was designed to promote.

What measures can be adopted  to increase its effectiveness?

Streamline and Expedite Appointment Processes

Implement a transparent, time-bound process for appointing Information Commissioners at both the central and state levels. Establish an independent selection committee that includes opposition members, civil society representatives, and legal experts to ensure diverse, qualified appointments. Mandate that vacancies be filled within a specified timeframe, preferably 30 days before the position becomes vacant. This measure would address the current understaffing crisis and reduce political interference in appointments.

Enhance Digital Infrastructure and Accessibility

Leverage artificial intelligence to categorize and route RTI applications more efficiently, reducing processing time across public authorities. Establish RTI kiosks in rural areas and provide mobile RTI services via Common Service Centres to bridge the digital divide. These initiatives would improve accessibility, reduce delays, and foster a more transparent system for tracking and processing RTI requests.

Strengthen Penalty Provisions and Enforcement

Amend the RTI Act to mandate penalties for officials who willfully deny or delay information without just cause. Introduce personal accountability measures, where repeated violations impact an official’s service record and promotion opportunities. Establish an independent enforcement wing within Information Commissions to investigate and prosecute serious violations. These steps would create a stronger deterrent against non-compliance and encourage transparency within public authorities.

Implement Comprehensive Protection for RTI Activists

Operationalize the Whistleblower Protection Act with provisions specifically designed to protect RTI activists. Set up a dedicated helpline and rapid response system for users facing threats or harassment. Establish special investigative units at the state level to handle cases of attacks on RTI activists, ensuring swift and impartial investigations. Enforce exemplary punishment for those found guilty of harming or threatening RTI users. These protections would encourage more citizens to use the RTI Act without fear.

Mandatory Proactive Disclosure and Open Data Initiatives

Expand and strictly enforce Section 4(1)(b) of the RTI Act, mandating proactive disclosure of information by public authorities. Implement an ‘Open by Default’ policy where non-sensitive government data is automatically made public in machine-readable formats. Introduce penalties for public authorities that fail to comply with proactive disclosure norms. This approach would reduce the number of individual RTI applications, promoting a culture of openness and transparency.

Regular Training and Capacity Building

Institute regular, mandatory training programs for Public Information Officers (PIOs) and First Appellate Authorities on RTI Act provisions, judicial updates, and best practices. Develop a certification program for PIOs to ensure a high level of competence. Introduce RTI literacy programs in schools and colleges to create awareness among youth.

Revise and Clarify Exemption Clauses

Review and narrow the exemption clauses in Section 8 of the RTI Act to prevent misuse and overly broad interpretations. Introduce a mandatory “harm test” for invoking exemptions, requiring authorities to show substantial harm from disclosure. Establish clear guidelines on applying the “larger public interest” override clause.

As the RTI Act nears its 20th anniversary, it is essential to tackle the challenges undermining its effectiveness to safeguard the principles of transparency and accountability. The Act’s continued success depends on prompt reforms and a collective dedication to upholding the right to information in India.

The End of the Blog: Strengthening the Right to Information