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The Eroding Foundations of Freedom of Information in India.

 
The right to information is often understood as essential for effective exercise of the right to
expression, including within the latter’s ambit, not just information disseminators, but also
information seekers. The UN Human Rights committee has acknowledged Article 19 of the ICCPR
to include a general right of access to information held by public bodies. This requires States to both
‘proactively put in the public domain Government information of public interest’ and ‘enact the
necessary procedures, whereby one may gain access to information, such as by means of freedom of
information legislation’. In India, The Right to Information Act, 2005, (‘The Act’) gives effect to
the right to information protected under Article 19(1)(a) of the Indian Constitution. The legislation
has received international attention and even inspired countries like Nepal and Bhutan who have
passed similar laws soon after India’s.
   
The Act was a result of decades of civil society struggles to redress the balance between the
citizenry and the State. The institutional apparatus thus created, consisting of the Information
Commissioners (‘ICs’) and the Chief Information Commissioner (‘CIC’) to negotiate this balance
was designed to be independent. The recent amendments to the Act, passed by the Indian
Parliament seeks to strike at this independence, undoing protections that prevented political
intervention in matters of appointments and remuneration.

Originally, both central and state level officers were to be appointed for a tenure of 5 years
or up to 65 years of age (whichever is earlier). Further, their salary, allowances and terms of service
were to be the same as corresponding officers of the Election Commission (who in turn are paid the
salary of a Judge, which is determined by the President of India). However, as per the recent
amendment, these are to be determined solely by the Central Government.
 
Such an amendment raises several concerns. It empowers the Central Government to
terminate the CIC or IC which could earlier only be done by the President that too if the apex court
found a sufficient reason. It also enables arbitrary changes in remuneration and terms of service,
earlier determined objectively. These render the authorities as mere puppets to the Centre,
undermining authenticity of information dissemination. Enabling cover-up of information
incriminating the administration, it undoes the major purpose of the RTI Act, rooted in
administrative and political accountability.
 
The most troubling aspect is that, there was no public consultation or debate before the
Bill’s introduction in the Parliament. This was despite the fact that it was this government’s second
attempt at these amendments. A similar Bill introduced in June 2018 was withdrawn due to
widespread opposition and protests.  
 
 All this raises grave concerns about the motivations of the current administration, which has
tried to systematically make the legislation ineffective. For the first time since its enactment, there
was a massive delay in the appointment of the CIC. Posts of four out of ten ICs still remain vacant,
with 32,000+ appeal cases remaining unresolved. On several occasions, requests for vital
information have been systematically denied, such as those relating to the wilful loan defaulters
when several businessmen fled the country and details of the controversial Rafael defence deal
France. As many as 84 RTI activists have been murdered, while several remain missing. The
amendment is only a more structural attempt to dilute the Act, concretising  the administration’s
apathy to transparency. 
 With around six million applications filed under the Act every year, it is the most
extensively used sunshine legislation in the world. The erosion of a framework to address
informational asymmetry between the citizen and the State marks a severe blow to
democratic participation and transparency.