The RTI Act which was implemented as a measure to increase transparency in the functioning of the Government machinery, has suffered various attacks and negligence of the Government, which has now rendered it powerless. The Act has empowered the citizens of India and protected their fundamental right to information, however, now that power is being taken away. This article delves into how strategically through amendments and due to the lackadaisical attitude of the government, RTI is becoming a defunct machinery.
The Right to Information (RTI) Act which will soon complete 20 years, has been a very important thread in the democratic fabric of India. The Act empowers citizens to request information from public authorities and promotes transparency and accountability in the functioning of the Government. By enabling informed participation and holding the public officials accountable, the Act aims to strengthen the democratic governance system in our country.
However, over the last few years, questions have been raised about the functioning of the RTI machinery as the number of pending complaints and appeals has increased, various State Information Commissions (SIC) remain defunct, while the Central Information Commission (CIC) is not functioning at its full capacity.
On January 7, 2025, the Supreme Court expressed its concerns over the delay in appointment of the Information Commissioner by Centre and States for protecting the citizens’ right to information, asking what was the use of creating a law protecting the rights of the citizens and creating transparency in the functioning of the government machinery, if there is no one to work for that law.
A defunct RTI machinery
The condition of the functioning of the CIC and the SICs can be better understood by analysing the report published by Satark Nagrik Sangathan (SNS) on the functioning of the 29 commissions across the country with information accessed under the RTI Act through various applications.
Out of the 29 SICs, seven were not functioning at different lengths of time in the year 2024, including Jharkhand, Telangana, Tripura, Goa, Chhattisgarh, Madhya Pradesh and Uttar Pradesh. For a period of four years, the SIC in Jharkhand has not been functional, which is the longest as compared to any other SICs.
Additionally, there were no Chief Information Commissioner in five commissions, along with eight that have been functioning at a reduced capacity with an inadequate number of information commissioners.
As per the Act, each commission shall have 10 commissioners and a chief commissioner, despite that multiple states and even the CIC are functioning at a reduced capacity. The CIC has been working with only three commissioners, including the chief commissioner.
In its recent order, Supreme Court also took cognizance of the situation in Jharkhand, where the commission has been defunct since 2020, and the lack of a leader of opposition (LOP) has resulted in no appointments in the SIC as the Act lays down that the Selection Committee for appointing commissioners must have LOP as a member.
The Court thereafter directed the single largest opposition party in Jharkhand, National Democratic Alliance, to appoint one of its elected representatives for the Selection Committee and complete the appointment process within the next 10 weeks.
As a result of this defunct machinery, the backlog of cases in the 29 commissions has drastically increased, from 2.18 lakh in the year 2019, to 4.05 lakh in the year 2024, which is an increase of around 80 percent, as reported by Newslaundry.
The CIC, which is the final appellate body as per the RTI Act, has more than 23,000 matters pending with 8 vacant posts for commissioners as per the website of the Central Information Commission.
The primary objective of the information commissions is to ensure transparency in the functioning of the government, however with regards to mandatorily making available the annual reports on the websites of respective commissions, it is pertinent to note that 33 percent of the commissions have not made their annual reports available as per an article published in the Business Standard.
The article further analyses the report of SNS as per which nearly 14,000 complaints and appeals were returned while 19,347 were registered by the CIC between July 1, 2023, and June 30, 2024, which comes to 42 percent of the total number of complaints registered.
The article further quotes the report stating “CIC website discloses how many appeals/complaints were re-submitted to the CIC after addressing deficiencies. The data reveals that nearly 96 per cent of the cases which were returned to the appellant/complainant were not re-submitted to the CIC by them”.
Reference can also be made to the 2019 judgement of the Supreme Court in the case of Anjali Bhardwaj vs Union of India, where the apex Court directed the Government to fill up the vacancies in the Information Commission and advised the government to make timely appointments of the Chief Information Commissioner and Information Commissioners 1 to 2 months prior the vacancy is created.
In this judgement, the Court also held that the selection of Information Commissioner must not be merely from Government employees or ex-government employees and highlighted the requirement of appointing people from other streams to increase transparency.
However, the judgement has not made much difference, and the appointment of retired bureaucrats continues.
2019 amendment
The negative attitude of the Government towards the RTI Act has been reflected in the 2019 Amendment to the Act, which has struck a huge blow to the independence and autonomy of the RTI machinery. The scope of the Act has been shrunk and the Government has attempted to defeat the purpose of the legislation. The power given under the RTI Act is now being eroded.
The Right to Information (Amendment) Act, 2019 breaks down the backbone of the law by striking its most important aspect, independence. The Amendment tinkers with status, salary and autonomy of the Information Commissioners at both Central and State levels. The Act which was passed hurriedly without proper consultations gives wide-ranging powers to the Central Government in controlling the one organization that has the power to hold the Government accountable.
To provide autonomy and prevent the information commissions from government interference, the tenure of chief information commissioners and 10 information commissioners was fixed at 5 years, and their salaries were of the rank of the chief election commissioner and election commissioners respectively.
The 2019 Amendment takes away the fixed tenure of the chief information commissioner and the information commissioners and also alters their salaries. As per the amendment, the Central Government has been granted the power to decide the tenure and salary of the chief information commissioner and the information commissioners. This can result in arbitrary removal and curtailment or increment of salary for elections commissioners as per the suitability of the ruling government.
While attempting to explain the objectives and the reasoning behind the amendment to the RTI Act, Bar and Bench in its article reported that, the Minister for PMO, Jitender Singh has argued that
“The functions being carried out by the Election Commission of India and Central and State Information Commissions are totally different. The Election Commission is a constitutional body established by clause (1) of article 324 of the Constitution and is responsible for the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all election to Parliament and to the Legislature of every State and of election to the office of President and Vice President held under the Constitution. On the other hand, the Central Information Commission and State Information Commissions are statutory bodies established under the provision of the Right to Information Act, 2005. Therefore, 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.”
Shri Yashovardhan Azad and Prof. Madabhushanam Sridhar Acharyulu, former Information Commissioners of the CIC argued that the Amendment may kill the RTI Act itself. They argued that the CIC and the SICs are not very different from the Election Commission of India especially with regards to their constitutional duties, and therefore the equivalence between ICs and EC with regards terms and conditions of service and salary were rightly drawn as per an article of the Economic and Political Weekly.
An article of India Today, cites Shashi Tharoor (MP, Indian National Congress) arguing that “It is not an RTI (Amendment) Bill. It is an ‘RTI elimination bill’. This bill is removing the two greatest armours of institutional independence and on top of that, by controlling the State Information Commissioners, by taking over the power to determine their salaries, the Central government is destroying it.”
Backdrop to the 2019 Amendment
Before the introduction of the RTI Amendment Act, 2019, a few orders had been passed by the Information Commission which were considered to cause unease to the Modi Government. Two examples can be referred to here of the row over PM Modi’s degree and the status of non-performing assets in public sector banks.
The Delhi University was directed, in January 2017, to allow the search of records of the students who had cleared the BA Course in the year 1978 which is when PM Modi passed the said exam, by the then Information Commissioner Sridhar Acharyulu.
Based on another complaint filed with the Information Commission during the tenure of the Modi government, the Commission directed the RBI to provide details with regards to the NPA in public sector banks and also the details of primary big loan defaulters. The information was denied by the RBI citing the confidential nature of the said information.
The matter even reached the Supreme Court where the Court directed the RBI in 2015 to make the requested information available and the order was reiterated in 2019 after the Central Bank had previously failed to comply with the order of the apex Court.
A conclusion can be drawn here as to how such complaints that have made the Modi government uncomfortable have resulted in the introduction of the RTI Amendment Act, 2019.
Other Issues with the RTI Machinery –
A pertinent question rises after the Digital Personal Data Protection Act (hereinafter referred as the DPDP Act), 2023 came into force regarding how to balance right to information and right to privacy, both of which are fundamental rights protected under Article 19(1) and Article 21 of the Constitution of India respectively.
Section 44(3) of the DPDP Act amends Section 8(1)(j) of the RTI Act. The previous provision exempted release of “information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information”, which is now substituted with “information which relates to personal information”.
The revised provision has provided a blanket exemption of any personal information and removed the consideration of larger public interest thereby resulting in huge potential of decrease in transparency and accountability.
The provision provides for protection of privacy of the government, meanwhile to protect the democratic fabric of the country, increased transparency on the end of the government would help in protecting the right of privacy of the citizens. Increased accountability of public officials would promote the objective of the RTI Act, which has been severely diluted by the amendment made by the DPDP Act.
Concerns have been raised as the DPDP Act was passed with great haste and without any consultation. In the documents obtained by an RTI application, it has been found that NITI Aayog which is government’s own think tank had formally written to the Ministry of Electronics and Information Technology (MeitY), urging to not pass the proposed DPDP Bill citing its repercussions and impact on the RTI Act especially, as reported in an article published by ET Government.
A fine will be imposed on the citizens if wrong information is provided to the government even by mistake or if there has been a failure to provide identity proof or address, or even if a complaint has been filed regarding breach of data privacy which is found to be false at a later stage as per an article published by the Deccan Herald. The Government expects the citizens to be perfectly candid and provide with their personal information, meanwhile exempting itself from doing the same and thereby destroying the balance between the governing and the governed.
In 2012, the Report of the Planning Commission headed by Justice AP Shah contended that Section 8 of the RTI Act provides for the exception of privacy to the right to information and when contended, the same can be decided by the Information Commissioners applying the public interest test. Therefore, the Privacy Act should in no way circumscribe the Right to Information Act. (Chapter 4, para 4.2, page 29 of 92)
Further, the Report of Justice Srikrishna Committee in 2018 attempted to balance the right to privacy with the right to information by suggesting amendment to the RTI Act by laying down that information must be exempted “only if such information is likely to cause harm to a data principal and such harm outweighs the aforementioned public interest, can the information be exempted from disclosure.” (Page 110 of 213)
From the above analysis it can be seen how time and again the Centre has attempted to whittle down the power of the RTI Act to protect itself. These acts of the Centre are against the basic fabric of a democratic government, accountability and transparency. Citizens’ right to information has been recognized by the Supreme Court as a fundamental right protected under Article 19(1) of the Constitution of India in a catena of judgments, however, the Centre has left no stone unturned to try and dilute the one law protecting that right.
(The legal research team of CJP consists of lawyers and interns; this primer has been worked on by Yukta Adha)
Related:
India’s RTI Act struggles to survive as backlog, lack of staff persists
Public authority must give cogent reason to withhold information under RTI Act: Delhi HC