The United States (US) adopted the Freedom of Information Act (FOIA) in 1966. President Lyndon B Johnson said that he signed the Bill “with a deep sense of pride that the United States is an open society in which the people's right to know is cherished and guarded”. Years later, his press secretary Bill Moyers recollected that Johnson “hated the idea” of the Act. He had to be “dragged kicking and screaming to the signing ceremony”. Speaking in 2016, Moyers recalled that “Getting FOIA passed was almost as difficult as making it work once it was law... we had to fight for it then, and we have to keep fighting for it 50 years later.”
India’s Right to Information (RTI) story is similar.
A people’s legislation
In April 1996, thousands of residents of Beawar, a town in Central Rajasthan, marched to the office of the Sub-Divisional Magistrate. They had a simple demand: “Humara Paisa, Humara Hisaab” (our money, our account). This was a watershed moment for Indian society. Instead of asking for the customary roti, kapda aur makaan (food, clothing and shelter), people were asking for the right to information! The Beawar agitation of 1996 started a decade-long process. It culminated with the enactment of the RTI Act in 2005.
When it was first enacted, the RTI Act was hailed as an iconic, people-empowering legislation. Since then, all three wings of State — including the Judiciary — have done everything in their power to undermine it. Over the years, a determined civil society has managed to fight off most attacks on the legislation. The latest battle seems to have been lost, for now. The Right to Information (Amendment) Bill, 2019, eats into the independence given to Information Commissioners. In effect, it hollows out the Act without touching on any of the substantive rights or procedural rights the Act provides.
The Act and the amendment
Before getting into the nitty-gritties of the law, it is imperative to understand that the RTI Act was not conferred upon citizens in 2005. The Supreme Court in a consistent line of cases has held that the right is part of the Constitution’s free-speech guarantee. The freedom of speech and expression includes right to acquire information and to disseminate it. The RTI Act, thus, is a vehicle to facilitate the implementation of a fundamental right.
The Act makes it mandatory for public authorities to disclose aspects of their structure and functioning. This includes disclosures on financial information, powers and duties of its employees, etc. The intent of such suo motu disclosures is that the public should need minimum recourse through the Act to obtain such information. Besides suo motu disclosures, citizens can file applications demanding the supply of specific information. This may include information in the form of documents, files, or electronic records under the control of the Public Authority.
‘Public Authorities’ include bodies of self-government established under the Constitution, or under any law or government notification. It also includes any entities owned, controlled or substantially financed and non-government organisations substantially financed directly or indirectly by funds provided by the government.
The Act has established a three-tier structure for enforcing the right. Public Authorities designate some of their officers as Public Information Officers. The first request for information goes to them. These officers are required to provide information to an RTI applicant within 30 days of their request. Appeals from their decisions go to an appellate authority. The appellate authority is a senior official working in the same public authority. Thus, essentially, the first appeal is made from ‘Caesar to Caesar’.
Appeals against the order of the Appellate Authority go to the State Information Commission or the Central Information Commission. Information Commissions consists of a Chief Information Commissioner, and up to 10 Information Commissioners. It is with respect to this that the amendment makes two crucial changes.
Under the original Act, the term of an Information Commissioner was fixed at 5 years. Further, the salary of the CIC and ICs (at the central level) was to be equivalent to the salary paid to the Chief Election Commissioner and Election Commissioners, respectively. Similarly, the salary of the CIC and ICs (at the state level) was to be equivalent to the salary paid to the Election Commissioners and the Chief Secretary to the state government, respectively.
The Amendment Bill states that the central government will notify the term of office of Information Commissioners. Further, the salaries, allowances, and other terms and conditions of service of the central and state CIC and ICs will be determined by the central government. The reasoning given for this is bizarre.
The Statement of Objects and Reasons of the Act states: “The salaries and allowances and other terms and conditions of service of the Chief Election Commissioner and Election Commissioner are equal to a Judge of the Supreme Court, therefore, the Chief Information Commissioner, Information Commissioner and the State Chief Information Commissioner becomes equivalent to a Judge of the Supreme Court in terms of their salaries and allowances and other terms and conditions of service.” It goes on to state that “the mandate of Election Commission of India and central and state Information Commissions are different. Hence, their status and service conditions need to be rationalised accordingly.”
The distinction misses a crucial point. Free speech and fair elections are Constitutional goals and part of the Constitution’s basic structure. The Election and Information Commissions act as facilitators of these goals. The Information Commission is essentially an adjudicatory body that decides whether an individual is entitled to access government information. The Commission decides disputes between the government and the citizen. It is, therefore, imperative that the Commission be free from all government control. It is precisely this independence that the Bill attacks.
By making the tenure and salary of Information Commissioners subject to the whims of the government, the amendment effectively turns them into ‘caged parrots’, a term the Supreme Court famously used for the Central Bureau of Investigation (CBI). Whether the Supreme Court or other Constitutional Courts do anything about it is another matter. Given their recent record, one does not hold much hope.
Like in the case of Aadhar, the government and its sympathisers have been quick to declare any dissent against the RTI Act amendments to be coming from the privileged intelligentsia. However, the story of the Beawar agitation should serve as a simple reminder that legislation like the RTI Act are not just for activists and lawyers. They are for the man on the street. Over the years, people have used the Act to enquire about why their pensions are stuck, why their subsidies have been disallowed and why no action has been taken on their complaints.
It is often said that the poor do not need obscure, ineffable things such as transparency and freedom — they need food. The poor know this better than anyone else. They also know that they have been denied their basic rights through a web of lies. Lies based on documents that are quoted, but never revealed. These documents were what the people of Beawar demanded to see. These documents are what RTI gave to them, and to us. And these documents are precisely why all of us must oppose any law which makes the Right to Information illusory.