The
Hindu: Thane: Thursday, October 18, 2012.
A
recent Supreme Court judgment and Prime Minister Manmohan Singh’s openly
expressed views in favour of privacy have raised concerns that attempts are
being made to dilute the spirit of the RTI Act and limit its use. Aruna Roy and
Nikhil Dey, the RTI’s movement’s leading lights, share their worries with Vidya
Subrahmaniam.
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| Aruna Roy and Nikhil Dey (R). Photo: Shiv Kumar Pushpakar |
The RTI Act
has had, and continues to have a significant positive impact on democratic
governance in India. This is because the Act has been owned by the common
people. The prime mover of the Act is the ordinary person.
The Act has,
in one stroke, delegitimised the norms of secrecy imposed by a colonial and
feudal past with its continued legacy in independent India. Equally significant
has been its capacity to empower those who use it by changing power
relationships between the ruling classes and citizens. Today it has become the
most important means by which ordinary people can fight corruption and the
arbitrary use of power. While there are obvious shortcomings in the Act and its
implementation a fundamental transformation from a culture of secrecy to one of
complete openness is still a long way off nevertheless, in its short history,
this Act has built the basic architecture of a transparent regime.
What are
your views on the Prime Minister’s speech at the recent convention of the
Central Information Commission?
The RTI Act
needs all the support it can get. Yet, it is unfortunate that the Prime
Minister repeatedly speaks of irritants when these have been addressed and
allayed several times. At a time when its detractors are looking for helpful
signals to dilute the Act, we had hoped Dr. Singh would celebrate the Act as an
achievement and promise stronger implementation towards building a transparent
and accountable democracy.
Dr. Singh
raised three specific issues: frivolous and vexatious applications, privacy,
and exclusion of public-private partnerships (PPP).
While the
Prime Minister did mention in passing that the RTI has strengthened democracy,
the focus was on areas of concern. There have been attempts, primarily through
amendments to rules, to keep out “frivolous and vexatious” applications. Since
neither can be objectively defined, any such amendment will result in huge
rejection, affecting mostly the poor and the marginalised. This issue has been
repeatedly deliberated. The Department of Personnel and Training dropped the
amendment move after its website was flooded by adverse comments. The National
Advisory Committee too has rejected the amendments. However, the Prime Minister
continues to raise the same issue over and over.
The law has
adequate provisions under Section 8 to reject applications that are not
legitimate and Dr. Singh does not qualify why the exemption for privacy under
section 8(1) J is inadequate to protect personal privacy.
Nor has the
government laid out those cases in which personal privacy has been infringed
because of the RTI Act. The Prime Minister referred to Justice A.P. Shah’s
report on privacy. However, it is our information that this report has
recommended that any privacy law should be in harmony with, and subject to, the
RTI regime.
As for
excluding the PPPs, this is absolutely unacceptable, as more and more essential
public services are being outsourced to the private sector. In such cases, they
should be held to a higher standard of transparency as the private sector can
easily escape the accountability provisions of the public sector. In fact, many
ordinary people see the PPP as a ploy by the government to escape its
responsibilities and accountability.
The
Supreme Court, in a recent judgment, has mandated two Commissioner-Information
Commission benches with the additional caveat that one commissioner must be a
judge or judicial officer.
There is no
doubt that there were many legitimate complaints about the functioning of the
Information Commissions and Commissioners. The appointment process is certainly
opaque and non-consultative. To begin with, the government has a 2-1 majority
in the selection committee which enables it to push through a nominee of its
choice. Second, while the spirit of the Act calls for commissioners across
sectors, the majority of commissioners appointed have been former bureaucrats.
The RTI campaign had suggested that a nominee of the Chief Justice be on the
appointment committee along with the Prime Minister and the Leader of the
Opposition.
The RTI law
does not prescribe a process of appointment. Nor has the government framed
rules to address the issue. So, it would have been of great value if the court
had rectified the defect by suggesting or mandating a transparent and consultative
process. This was a great opportunity before the court. But the solution it has
offered only creates more problems. A big problem with the commissions was
mounting pendency and delays. This judgment will have the immediate effect of
at least doubling this delay. Another problem was the absence of standards and
norms and the judgment has failed to address that lacuna.
Our
information is that work has halted in a number of State commissions.
Work has
halted in many commissions, including in the Information Commission of
Rajasthan, where we live. If the Supreme Court’s orders are followed, all
commissions may have to stop work. The Central government has filed a review
petition, and the State governments are disinclined to begin the process of selecting
individuals with judicial backgrounds. Chaos prevails.
If the
commissions become courts of sorts, isn’t there a danger that the common RTI
user will be forced to hire lawyers to argue his case which will defeat the
purpose of the Act? Won’t the stress on judicial adjudication complicate the
process of information delivery which must be quick in order to be effective?
The
commission was designed to be citizen-friendly. Judicial procedures will usher
in a judicial mindset. While this may be very important in administering
justice in criminal or civil law, it may defeat the quick and effective
delivery of information. The custodians of information who can hire lawyers
will benefit, and the ordinary will be placed at a disadvantage.
Dr.
Singh’s speech and the court judgment have the privacy concern in common. The
running thread in the judgment is that privacy must be protected. It emphasises
the exceptions under section 8 of the Act and says only a judicially-trained
mind can decide when “information ought not be disclosed.” So, from a situation
of not getting enough information are we going towards a situation where
information will be routinely denied?
That is
certainly a very troubling aspect of this judgment. The emphasis seems to be on
the “exemptions.” The RTI Act has a clear presumption towards disclosure, and
even the exemptions contain a proviso of a public interest override. Actually
only about five per cent of the cases go up in appeal to the commissions. But,
the commissions set the tone for compliance. This judgment could pass a message
not only to information commissioners, but also to Public Information Officers
that a more liberal use of the exemptions under the Act would be permissible.
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