India
Today: New Delhi: Tuesday, June 04, 2019.
The
significance of access to information about the government's functioning can't
be over-emphasised. The Right to Information Act of 2005 (RTI Act) makes it
abundantly clear at the outset by stating that "democracy requires an
informed citizenry and transparency of information which are vital to its
functioning and also to contain corruption and to hold Governments and their
instrumentalities accountable to the governed."
It
also declares that the law is being enacted to provide a practical regime
"to secure access to information under the control of public authorities,
in order to promote transparency and accountability in the working of every
public authority..."
Somewhere
down the line, these ideals seem forgotten. So much so that while hearing the
government's "stolen documents" claims in the Rafale case, the
Supreme Court made the Attorney General KK Venugopal read out three sections of
the RTI Act in the open court - section 22 which overrides the Official Secrets
Act (OSA); section 24, which makes it mandatory for security and intelligence
organisations to share information on corruption and human rights violations
and section 8(2), mandating disclosure of information "if public interest
in disclosure outweighs the harm to protected interests", notwithstanding
the OSA.
This
article is the fifth in a series that looks at the agenda for the Narendra Modi
government's second term. Read the first, second, third and fourth part on
credibility of data here.
Right
candidates and transparency in selection
Since
information commissioners are critical to ensuring access to information, RTI
activists have been fighting a pitched battle with governments over their
selection to the Central and State Information Commissions.
In
2018, a PIL was filed in the Supreme Court seeking directions to the
governments to streamline the appointment process. In response, the Supreme
Court gave four broad directives to the governments in February 2019: (i) begin
the appointment process 1 to 2 month before a vacancy occurs (ii) expand the
choice of candidates to outside the bureaucracy (iii) make the process
transparent by making all relevant information accessible to public and (iv)
"make the criteria for short-listing the candidates public so that it is
ensured that short-listing is done on the basis of objective and rational
criteria".
Anjali
Bhardwaj, one of the RTI activists who filed the PIL, says the last directive
was because the criteria for selection are not known to the public. All that
the RTI Act provides for is the general 'eligibility' of candidates. Section
12(5) and 13(5) say the information commissioners shall be "persons of
eminence in public life with wide knowledge and experience in law, science and
technology, social service, management, journalism, mass media or
administration and governance".
Last
heard, the Central government has not made the selection criteria public. In
its reply to a RTI query, the Department of Personnel and Training (DoPT) said
in April that the apex court judgement "is under consideration".
Shailesh
Gandhi, who himself was an Information Commissioner (IC) in the Central
Information Commission (CIC) during 2009-12, says: "The selection is a
random process depending on political patronage and bureaucratic networking.
This applies to a whole range of high offices of checks and balances of
democracy. My own selection was also a random occurrence."
Bhardwaj
says in the past few years not a single appointment has been made to the CIC
without court interventions. The 2018 PIL had led to the appointment of the
Chief Information Commissioner and four Information Commissioners, all of which
were ex-bureaucrats, in December 2018 (before the directives came).
Notwithstanding the directives, four posts of the ICs are lying vacant at
present.
Clearly,
the apex court directive needs to be followed in letter and spirit in filing up
vacancies, selecting candidates and ensuring transparency in the process.
Gandhi insists that the selection process must include at least one interview
open to media and citizens as is a common practice in the US for many high
public offices.
Protection
to whistle blowers
The
RTI has spelt doom for many public-spirited individuals seeking accountability
and transparency in the working of public authorities as the law envisages.
According to the Commonwealth Human Rights Initiative (CHRI), so far 83 RTI
activists have been killed, 165 assaulted, 180 harassed or threatened and 6
committed suicide.
The
Whistle blowers Protection Act of 2014 , which was meant to protect them, still
hangs in air.
Eleven
years in the making, and after much bloodshed and public outcry, the law was
prompted by the killing of NHAI engineer Satyendra Dubey for blowing the
whistle on corruption in the Golden Quadrilateral highway project in Bihar in
2003.
The
law was passed and notified during the dying days of the previous UPA
government and provides for a mechanism to deal with disclosure of corruption
or wilful misuse of power against public servants and also "to provide
adequate safeguards against victimisation of the person making such
complaint..."
Five
years after notification, the law has not been operationalised.
In
August 2018, the Ministry of Personnel, Public Grievances & Pensions
explained the delay to the Rajya Sabha in a written reply : "As the Act
required amendments aimed at safeguarding against disclosures affecting
sovereignty and integrity of India, Security of the State, etc., before it is
brought into force, the Government introduced the Whistle Blowers Protective
(Amendment) Bill, 2015 in the Lok Sabha which has been passed by the Lok Sabha
on 13th May, 2015. The said Bill has been transmitted to the Rajya Sabha and is
presently pending in the Rajya Sabha."
With
the dissolution of the Lok Sabha the bill may have lapsed but the apprehensions
of the RTI activists regarding some of the amendments in it, particularly those
relating to dilution of protection to the whistle blowers, such as removal of
immunity from prosecution under the OSA, and prohibition on certain categories
of information allowed under the RTI Act remain. Since the amendments had been
tried without prior public consultations, it would be prudent for the new
government to do so before attempting the same again.
It
is not just access to information but also protection to those who use such
information to expose corruption or misuse of official machinery are of
paramount significance to build an informed citizenry, as the RTI Act seeks to
achieve, and also to deepen the democracy, make it more vibrant and
participatory.