The Narendra Modi government seems to be hastening the “slow death” of India’s Right to Information Act (RTI) of 2005, which once gave hope to millions of Indians regarding transparency and accountability in governmental and administrative work.
Recently, the Indian Cabinet gave its nod to the Digital Personal Data Protection (DPDP) Bill to be placed before Parliament’s ongoing monsoon session. Once enacted, the DPDP Bill will further cripple the RTI, a law that served as a powerful tool in the hands of journalists and activists in exposing corruption and the lack of government transparency and accountability.
The RTI’s scope has been progressively limited during the nine years of Modi rule, a process often described as “slow death.”
Activists fear that the amendments proposed in the DPDP Bill will strip the RTI Act of most of its power.
Nikhil Dey, a founder-member of the National Campaign For People’s Right to Information (NCPRI), tweeted on July 18 that the DPDP Bill “actually fundamentally undermines” transparency and the right to information. He demanded a public consultation before the bill is placed before Parliament.
Notably, on July 26, opposition party members of the Parliamentary Standing Committee on Communications and Information Technology walked out of its meeting, alleging that the committee led by a ruling coalition MP adopted the report on the DPDP Bill without members getting to see the final version cleared by the cabinet.
While it remains to be seen in exactly what shape the DPDP Bill got the cabinet’s nod – as that version has not been put in the public domain yet – the draft bill circulated last year had multiple problematic provisions. The government has not disclosed its responses to public objections to these provisions.
Section 8(1)(j) of the RTI Act says with regard to exemptions from disclosure, that “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” can be denied, unless central or state public information commissioners or appellate authorities are satisfied that “the larger public interest justifies the disclosure of such information.”
The section also mentions that information that cannot be denied to the Parliament or a state legislature shall not be denied to any person.
However, the DPDP Bill’s proposed amendment deletes all these scopes around “larger public interest” and information that cannot be denied to legislatures. It gives a blanket exemption to “information which relates to personal information.”
The Bill defines as a “person” an individual, a Hindu Undivided Family, a company, a firm, an association of persons or a body of individuals (whether incorporated or not), the State, and “every artificial juristic person, not falling within any of the preceding sub-clauses.”
Former Central Information Commissioner (CIC) and RTI activist Sailesh Gandhi has pointed out that most information, except budgets, would be linked to at least one of these, and access to such information could therefore be legally denied. He cautioned that the proposed amendments would turn the law into a “Right to Deny” for public information officers unwilling to provide information. It will lead to “a major regression for democracy,” he said.
Transparency and accountability activists Anjali Bhardwaj and Amrita Johri fear the passage of the bill in its last known shape would be “a huge blow to the transparency regime in the country.”
“Experience of the use of the RTI Act in India has shown that if people, especially the poor and marginalized, are to have any hope of obtaining the benefits of government schemes and welfare programmes, they must have access to relevant, granular information,” they wrote.
Since its inception in 2005, the RTI Act and its users have come under attack.
The Congress-led first United Progressive Alliance (UPA) government (2004-09) took pride in the legislation but the second UPA government (2009-14) exempted the Central Bureau of Investigation (CBI) from its purview at a time the agency was probing a number of high-profile cases involving Congress leaders.
Besides, RTI activists have frequently faced harassment, intimidation, and physical attacks. They have even been killed. Even though the Ministry of Home Affairs issued a set of advisories to state governments in 2013 to “provide adequate security” to RTI activists at the receiving end of threats, as many as 74 were killed by 2018.
However, the Modi government’s intention to render the law toothless clearly surpasses all previous attempts to weaken the RTI.
In 2017, the government proposed amendments to RTI rules, which were subsequently put in cold storage in the face of fierce opposition from activists and political opponents. According to one recommendation, a case would be closed if the applicant dies. This was seen as a recipe for encouraging the murder of information seekers.
Attempts to pass the RTI Amendment Bill failed in 2018 but were successful the following year, when Modi returned to power with a larger mandate. The amendment did away with the fixed, five-year tenure of information commissioners and increased the central government’s role in determining their salary and tenure, widening the scope for downgrading the autonomy of the commissions.
In an article written soon after the bill’s passage in the Lok Sabha, the lower house of the Indian Parliament, in 2019, former CIC Yashovardhan Azad and M. Sridhar Acharyulu pointed out that the 2005 RTI Act placed information as a “constitutional right” and that the Supreme Court, too, in a series of landmark cases, held that the RTI, like the right to vote, had “emanated from [the] right of expression under Article 19(1)(a).” The 2019 amendments, on the other hand, contradicted this idea of information as a fundamental right, and “may kill the RTI Act itself,” Azad and Acharyulu warned.
A report published by transparency watch group Satark Nagrik Sangathan in December 2022 noted that the functioning of information commissioners, who are “mandated to safeguard and facilitate people’s fundamental right to information,” was proving to be “a major bottleneck in the effective implementation of the sunshine law.” Not only was the massive backlog of appeals causing inordinate delays but also the commissions were found to be “extremely reluctant to impose penalties on erring officials” who were unjustly denying information.
Allegations of information officers denying information on the grounds that they were personal in nature have been growing in recent years, one of the most-talked-about cases being related to PM Modi’s educational qualifications.
In 2016, the BJP top leadership produced a document showing Modi’s MA degree, which the opposition Aam Aadmi Party (AAP) alleged was a “forged” document. When AAP sought information under the RTI, Gujarat University refused, claiming the information was “personal in nature.” Courts stayed and even quashed orders issued by information commissioners to the Gujarat and Delhi Universities to provide the information sought regarding the prime minister’s degree. When Acharyulu, as a CIC, directed Delhi University to disclose records of Modi’s degrees, he was asked to stop hearing cases related to the human resources development ministry, which deals with education.
The proposed amendment through the DPDP Bill would not only legalize and normalize the trend of government departments and officials refusing to disclose information but also give the government greater control over information officers and exemptions, effectively crippling whatever is left of one the world’s most-known transparency mechanisms and the independence of its functionaries.