The cornerstone of a vibrant liberal democracy is empowered citizens with the right to know and hold their state accountable. To achieve that, a polity must move beyond the procedural aspects of regular free, and fair elections to a more substantive accountability regime. The Right to Information Act (RTIA) promulgated by India in 2005 provides such a substantive regime.
Under this act, citizens have a legal right to access information from the state. This is a sunshine law that empowers the citizens to scrutinize and seek accountability from the state. The RTIA covers the central, state, and local governments and entities owned, controlled, or substantially financed by the state, including non-government organizations. The law defines the information to be accessed clearly as any material (such as records, documents, memos, e-mails, opinions, bits of advice, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, and data material). Additionally, citizens can inspect ongoing projects and take certified copies of records and samples. The information must be provided within the stipulated time frame, attracting monetary penalties in case of non-compliance. There is also a system of multiple levels of appeal if the information is denied or delayed.
That said, in implementation the RTIA still faces incidents of non-disclosure, non-compliance, and minuscule imposition of penalties on erring officials. Ever since the inception of the RTIA, it was often the norm that the information commissioners at both the central and state level were former bureaucrats. There was always a likelihood that the commissioners would be sympathetic to their former occupation and would shield the executive. The information regime has always been susceptible to greater control from the state since the commissioners were formerly part of the state.
Despite these flaws, since its passage, the RTIA has re-defined state-citizen linkages in India. First, it has deepened democracy by legally ushering in a culture of scrutiny and accountability. Citizens can now ask informed questions to the state, holding it accountable. Second, strong accountability facilitates transparent governance with the potential to detect and block issues on the ground level. Third, the prospective shadow of accountability increases bureaucratic response.
Indeed, information procured through the RTIA has been used to expose both grand and petty corruption. It has also been used to ensure public service delivery at the grassroots and make public authorities accountable. According to a modest estimate (that does not include the subnational level), more than 1.3 million Right to Information applications were filed by citizens in 2018-19.
The RTIA has opened a space for accountability between the state and the citizens. In this accountability continuum, one end is the information givers, and the other is the information seekers. The relationship between the two is often tumultuous. There have been attempts to weaken the law. After the enactment of the RTIA, all governments across parties have attempted to dilute the law. Political parties have constantly resisted coming under the ambit of the RTIA. There have been several aborted attempts to amend the act – first in 2006, then in 2009, and a third time in 2012 (mainly regarding the disclosure file noting of bureaucrats on executive files). In 2013 an amendment to the RTIA was proposed to grant immunity to the political parties.
One of the most contested dilutions to the RTIA came 14 years after its passage, in the form of an amendment. The amendment passed by both the upper and lower houses of India’s Parliament in July 2019 entailed two changes to the tenure and emoluments of the information commissioners. First, the central government will now prescribe the fixed five-year tenure of the information commissioners. Second, the central government will stipulate salaries, allowances, and other related benefits.
The principal opposition to these amendments is that they will take away the autonomy of the information commissioners and put them under greater control by the state. This will impact the adjuratory role of the information commissioners, who are supposed to act as independent and neutral regulators of the transparency and information regime. The RTI amendment bill was neither referred to the parliamentary standing committee nor put in the public domain for a more comprehensive consultation, as is the norm for bills introduced in the parliament.
More recently, the RTIA is now in direct conflict with the just-passed Digital Personal Data Protection Act (DPDP) 2023. Section 8 (1) (J) of the RTIA prevents sharing personal information that has no connection to any public activity, is not in the public interest, or unnecessarily invades a citizen’s privacy. However, personal data can be disclosed in the larger public interest. For example, a list of government scheme beneficiaries can be disclosed even if personal information is involved, as the disclosure is in the larger public interest.
The new DPDP seeks to amend this to introduce a blanket non-disclosure clause for personal information that will weaken citizens’ right to know. The information seeker will have to prove the public interest aspect. Under the RTIA, the onus was on the information giver to deny information citing the public interest clause. The DPDP act ignores the informed precedents where high-powered judicial committees have recommended that a data protection law cannot be the pretext to deny citizens their right to information. Further, Section 22 of the RTIA stipulates that the RTIA would hold supreme in case of a conflict with any other law.
Privacy and accountability have been a double-edged sword since the RTIA first passed in 2005. However, up to now the information commissioners and the courts have adjudicated whether personal information is in the larger public interest. The DPDP stonewalls this legal avenue and augments the legal ground to deny information.
The conflict between secrecy and openness can be traced to the historical friction between the two competing norms. The pre and post-RTIA period provides a contrasting before and after picture. For the first 59 years since India’s independence, laws such as the Official Secrets Act, 1923 (OSA); Civil Services Conduct Rules, 1964; Sections 1, 2, and 3 of the Indian Evidence Act 1872; and manual and office procedures of the government of India weakened the citizens’ right to know, and secrecy was the norm. It was illegal to give out and receive information from the state.
The culture of secrecy was locked in within the state and perpetuated since independence. The vast bureaucratic and political network was vested in perpetuating secrecy, governance could be carried with no accountability. Information was the source of the state’s power over citizens. The logic emerged within the state that official information is the key to national security and state interests. The bureaucracy also viewed information as a source of power – giving out information from within the state was, in a sense, giving away the power that the bureaucracy held hidden in those files.
The RTIA directly hit this nexus of vested interests. This is evident because RTI users have been threatened, booked under fabricated cases, and even killed for holding the state accountable. Clearly, there was a paradigm shift from secrecy to openness. The RTIA resulted from a long-drawn churning between the norm of secrecy and openness. This law came into existence following a long struggle by the segments from within the state and citizens asking for “hamara paisa hamar hisaab” (our money, our account).
With the passage of the DPDP Act, what will be the impact of these amendments? The recent dilutions have not rescinded the seachange from the previously locked-in norm of “secrecy” to a default of “openness.” However, while constitutionally granted rights, such as the RTIA, cannot be withdrawn, the current amendments show these rights can be consciously blunted.
Legal and policy regimes are seldom perfectly executed on the ground; contestations are omnipresent. In this vein, citizen groups such as the National Campaign for People’s Right to Information (NCPRI) 2019 launched a national campaign to “use RTI to save RTI,” urging citizens to constantly seek information from the state. Yet another people’s movement has manifested in objection to the DPDP involving the citizen groups, opposition parties’ members, and some media segments.
The RTIA resulted from a long-drawn churning; a similar contestation is taking place now that has roots in the earlier friction between the state’s secrecy and citizens demanding greater openness.