The Federal News: Opinion: Wednesday, 29 January 2025.
Digital Personal Data Protection Act, freezing vacancies in state, Central information commissions defang crucial right in a nation dominated by steep imbalances A radical reform introduced in 2005 lies in tatters by 2025.
Within two decades, one of
the seminal achievements of the country, with the potential to change the
democratic governance in India, the Right to Information (RTI) Act, is teetering
dangerously close to insignificance.
The way to defang this crucial and basic right in a country dominated by steep imbalances is quite simple: stop appointing information commissioners or slow down the appointments process in such a way that the information commissions become useless.
As backlogs mount, so will public cynicism and distrust.
Vacant posts
Consider this: The state information commissions (SICs) in Jharkhand, Tripura and Telangana, until late last year, did not have a single commissioner. The Jharkhand Information Commission has been defunct since May 2020, Telangana since February 2023 and Tripura since July 2021.
The condition of the other state information commissions is only marginally better. Maharashtra and Karnataka have eight vacancies, Odisha five and West Bengal four. Alarmingly, the pendency of cases in Maharashtra has crossed the 100,000-mark, with significant pendency in some other states.
Compounding the problem is the Central Information Commission (CIC), which itself has only three commissioners out of 11, including the Chief Information Commissioner. It has around 22,000 pending appeals filed by people against denial of information by the government.
The SICs, in effect, have ceased to function.
SC intervenes
Happily, the Supreme Court played its hand it directed the Centre and states to provide clear timelines for filling vacant posts in Central and state information commissions set up under the RTI Act, 2005, after noting, with concern, the vast number of vacancies at the transparency watchdogs.
In addition, the Union government was told to file a status report on the progress made to make the appointments at the CIC.
RTI provides for the appointment of 10 information commissioners at the Centre and each state/UT.
Save-the-RTI campaign
Leading the charge is transparency campaigner Anjali Bhardwaj and two others, whose PIL has become the pivot around which the save-the-RTI campaign is centred. The PIL informed the court about how state governments were defeating the high goal of transparency and accountability by rendering the information commissions redundant.
“They are virtually destroying the RTI by freezing vacancies,” said advocate Prashant Bhushan, appearing for the petitioners. He pointed out that an apex court judgment in February 2019 had observed the need to “crack the whip” to fill up the vacancies.
Under pressure from the Supreme Court, Jharkhand and other states have begun the process of appointments. The apex court has been monitoring the filling up of vacancies in CIC and SICs following its 2019 judgment, where it said the RTI Act was not only enacted to sub-serve and ensure freedom of speech but also had the potential to “bring about good governance which is an integral part of any vibrant democracy”.
Difficulties in filling posts
Just how difficult it is to get the vacancies fixed notwithstanding the apex court breathing down the Unionand state governments’ combined necks can be gauged from the fact that in October 2023, a Supreme Court bench led by then chief justice DY Chandrachud and justices JB Pardiwal and Manoj Misra expressed dissatisfaction with the governments' failure to fill the vacancies.
The court directed the Department of Personnel and Training (DoPT) to prepare a chart on the number of vacancies, and appeals/complaints, in all the commissions.
“The failure of the state governments to fill posts of information commissioners defeats the purpose of the RTI Act and affects the right of information which becomes a ‘dead letter’ if vacancies are not filled up,” the CJI noted in the order.
Setting deadlines
On January 7, 2025, a bench comprising Justices Kant and N Kotishwar Singh directed the DoPT to provide timelines for completing the CIC selection process and disclose the list of applicants.
To expedite the process in Jharkhand, the apex court ordered a member of the selection committee to be nominated by the largest Opposition party, with appointments to be made within six weeks.
The selection process for Jharkhand, however, could not begin due to the absence of a leader of Opposition (LoP) in the Vidhan Sabha after the November 2024 assembly elections.
For other states, the apex court set deadlines for notifying applicant lists within one week: search committee composition within one week from the date of notification of applicants and interview timelines not exceeding six weeks from the date of notification of the search committee’s composition. It also provided a two-week period to the competent authorities for making appointments after receiving recommendations.
States were also asked to report case pendency before the information commissions.
No easy route
Thus far, some have complied, but the others always have crisp alibis to offer. That the way ahead is not going to be easy, is more than clear.
Activist Anjali Bhargava told an interviewer: "It is becoming increasingly difficult, in any case, to access information under the RTI. Now the Digital Data protection law has amended the RTI Act to expand the scope of the exemptions under Section (8)(1)(j). This means that any information that relates to personal information will not be provided."
The Digital Personal Data Protection Act, 2023 (DPDPA) introduces a new layer of complexity by proposing amendments to Section 8(1)(j) of the RTI Act. Specifically, the amendments would exempt the disclosure of personal information of public officials, even if doing so serves a larger public interest.
New layer of complexity
Once the DPDPA becomes operational, even if the Supreme Court were to strike down the aspect of anonymity in let’s say electoral bonds, it will not be easy to access names of donors.
In a broad sense, the two pieces of legislation could be considered at odds with each other. The DPDPA aims to protect personal data, while the RTI Act aims to promote transparency and accountability in government.
The DPDPA may exempt most personal information from the RTI Act's purview. This could make it easier for public information officers to reject RTI applications.
Existential dilemma
It could disproportionately affect people who rely on the RTI Act to access information about their pensions, wages, and other benefits. The DPDPA could make it harder for citizens to access information from the government, which could threaten transparency and accountability.
Clearly, the RTI is in the throes of an existential dilemma, all of which can be laid at the door of the political masters, for whom lip service to creating a viable information highway is more crucial than facilitating it in practice.
(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the article are of the author and do not necessarily reflect the views of The Federal.)
Digital Personal Data Protection Act, freezing vacancies in state, Central information commissions defang crucial right in a nation dominated by steep imbalances A radical reform introduced in 2005 lies in tatters by 2025.
The way to defang this crucial and basic right in a country dominated by steep imbalances is quite simple: stop appointing information commissioners or slow down the appointments process in such a way that the information commissions become useless.
As backlogs mount, so will public cynicism and distrust.
Vacant posts
Consider this: The state information commissions (SICs) in Jharkhand, Tripura and Telangana, until late last year, did not have a single commissioner. The Jharkhand Information Commission has been defunct since May 2020, Telangana since February 2023 and Tripura since July 2021.
The condition of the other state information commissions is only marginally better. Maharashtra and Karnataka have eight vacancies, Odisha five and West Bengal four. Alarmingly, the pendency of cases in Maharashtra has crossed the 100,000-mark, with significant pendency in some other states.
Compounding the problem is the Central Information Commission (CIC), which itself has only three commissioners out of 11, including the Chief Information Commissioner. It has around 22,000 pending appeals filed by people against denial of information by the government.
The SICs, in effect, have ceased to function.
SC intervenes
Happily, the Supreme Court played its hand it directed the Centre and states to provide clear timelines for filling vacant posts in Central and state information commissions set up under the RTI Act, 2005, after noting, with concern, the vast number of vacancies at the transparency watchdogs.
In addition, the Union government was told to file a status report on the progress made to make the appointments at the CIC.
RTI provides for the appointment of 10 information commissioners at the Centre and each state/UT.
Save-the-RTI campaign
Leading the charge is transparency campaigner Anjali Bhardwaj and two others, whose PIL has become the pivot around which the save-the-RTI campaign is centred. The PIL informed the court about how state governments were defeating the high goal of transparency and accountability by rendering the information commissions redundant.
“They are virtually destroying the RTI by freezing vacancies,” said advocate Prashant Bhushan, appearing for the petitioners. He pointed out that an apex court judgment in February 2019 had observed the need to “crack the whip” to fill up the vacancies.
Under pressure from the Supreme Court, Jharkhand and other states have begun the process of appointments. The apex court has been monitoring the filling up of vacancies in CIC and SICs following its 2019 judgment, where it said the RTI Act was not only enacted to sub-serve and ensure freedom of speech but also had the potential to “bring about good governance which is an integral part of any vibrant democracy”.
Difficulties in filling posts
Just how difficult it is to get the vacancies fixed notwithstanding the apex court breathing down the Unionand state governments’ combined necks can be gauged from the fact that in October 2023, a Supreme Court bench led by then chief justice DY Chandrachud and justices JB Pardiwal and Manoj Misra expressed dissatisfaction with the governments' failure to fill the vacancies.
The court directed the Department of Personnel and Training (DoPT) to prepare a chart on the number of vacancies, and appeals/complaints, in all the commissions.
“The failure of the state governments to fill posts of information commissioners defeats the purpose of the RTI Act and affects the right of information which becomes a ‘dead letter’ if vacancies are not filled up,” the CJI noted in the order.
Setting deadlines
On January 7, 2025, a bench comprising Justices Kant and N Kotishwar Singh directed the DoPT to provide timelines for completing the CIC selection process and disclose the list of applicants.
To expedite the process in Jharkhand, the apex court ordered a member of the selection committee to be nominated by the largest Opposition party, with appointments to be made within six weeks.
The selection process for Jharkhand, however, could not begin due to the absence of a leader of Opposition (LoP) in the Vidhan Sabha after the November 2024 assembly elections.
For other states, the apex court set deadlines for notifying applicant lists within one week: search committee composition within one week from the date of notification of applicants and interview timelines not exceeding six weeks from the date of notification of the search committee’s composition. It also provided a two-week period to the competent authorities for making appointments after receiving recommendations.
States were also asked to report case pendency before the information commissions.
No easy route
Thus far, some have complied, but the others always have crisp alibis to offer. That the way ahead is not going to be easy, is more than clear.
Activist Anjali Bhargava told an interviewer: "It is becoming increasingly difficult, in any case, to access information under the RTI. Now the Digital Data protection law has amended the RTI Act to expand the scope of the exemptions under Section (8)(1)(j). This means that any information that relates to personal information will not be provided."
The Digital Personal Data Protection Act, 2023 (DPDPA) introduces a new layer of complexity by proposing amendments to Section 8(1)(j) of the RTI Act. Specifically, the amendments would exempt the disclosure of personal information of public officials, even if doing so serves a larger public interest.
New layer of complexity
Once the DPDPA becomes operational, even if the Supreme Court were to strike down the aspect of anonymity in let’s say electoral bonds, it will not be easy to access names of donors.
In a broad sense, the two pieces of legislation could be considered at odds with each other. The DPDPA aims to protect personal data, while the RTI Act aims to promote transparency and accountability in government.
The DPDPA may exempt most personal information from the RTI Act's purview. This could make it easier for public information officers to reject RTI applications.
Existential dilemma
It could disproportionately affect people who rely on the RTI Act to access information about their pensions, wages, and other benefits. The DPDPA could make it harder for citizens to access information from the government, which could threaten transparency and accountability.
Clearly, the RTI is in the throes of an existential dilemma, all of which can be laid at the door of the political masters, for whom lip service to creating a viable information highway is more crucial than facilitating it in practice.
(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the article are of the author and do not necessarily reflect the views of The Federal.)
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