Selection of right individuals as information commissioners and protection of those who use RTI to expose wrongdoings are essential for accountability in governance.
- Prasanna Mohanty
- New Delhi
- June 3, 2019
- UPDATED: June 14, 2019 09:27 IST
The significance of access to information about the government's functioning can't be over-emphasised. The Right to Information Act of 2005 (RTI Act) makes it abundantly clear at the outset by stating that "democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed."
It also declares that the law is being enacted to provide a practical regime "to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority..."
Somewhere down the line, these ideals seem forgotten. So much so that while hearing the government's "stolen documents" claims in the Rafale case, the Supreme Court made the Attorney General KK Venugopal read out three sections of the RTI Act in the open court - section 22 which overrides the Official Secrets Act (OSA); section 24, which makes it mandatory for security and intelligence organisations to share information on corruption and human rights violations and section 8(2), mandating disclosure of information "if public interest in disclosure outweighs the harm to protected interests", notwithstanding the OSA.
This article is the fifth in a series that looks at the agenda for the Narendra Modi government's second term. Read the first, second, third and fourth part.
Right candidates and transparency in selection
Since information commissioners are critical to ensuring access to information, RTI activists have been fighting a pitched battle with governments over their selection to the Central and State Information Commissions.
In 2018, a PIL was filed in the Supreme Court seeking directions to the governments to streamline the appointment process. In response, the Supreme Court gave four broad directives to the governments in February 2019: (i) begin the appointment process 1 to 2 month before a vacancy occurs (ii) expand the choice of candidates to outside the bureaucracy (iii) make the process transparent by making all relevant information accessible to public and (iv) "make the criteria for short-listing the candidates public so that it is ensured that short-listing is done on the basis of objective and rational criteria".
Anjali Bhardwaj, one of the RTI activists who filed the PIL, says the last directive was because the criteria for selection are not known to the public. All that the RTI Act provides for is the general 'eligibility' of candidates. Section 12(5) and 13(5) say the information commissioners shall be "persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance".
Last heard, the Central government has not made the selection criteria public. In its reply to a RTI query, the Department of Personnel and Training (DoPT) said in April that the apex court judgement "is under consideration".
Shailesh Gandhi, who himself was an Information Commissioner (IC) in the Central Information Commission (CIC) during 2009-12, says: "The selection is a random process depending on political patronage and bureaucratic networking. This applies to a whole range of high offices of checks and balances of democracy. My own selection was also a random occurrence."
Bhardwaj says in the past few years not a single appointment has been made to the CIC without court interventions. The 2018 PIL had led to the appointment of the Chief Information Commissioner and four Information Commissioners, all of which were ex-bureaucrats, in December 2018 (before the directives came). Notwithstanding the directives, four posts of the ICs are lying vacant at present.
Clearly, the apex court directive needs to be followed in letter and spirit in filing up vacancies, selecting candidates and ensuring transparency in the process. Gandhi insists that the selection process must include at least one interview open to media and citizens as is a common practice in the US for many high public offices.
Protection to whistle blowers
The RTI has spelt doom for many public-spirited individuals seeking accountability and transparency in the working of public authorities as the law envisages. According to the Commonwealth Human Rights Initiative (CHRI), so far 83 RTI activists have been killed, 165 assaulted, 180 harassed or threatened and 6 committed suicide.
The Whistle blowers Protection Act of 2014 , which was meant to protect them, still hangs in air.
Eleven years in the making, and after much bloodshed and public outcry, the law was prompted by the killing of NHAI engineer Satyendra Dubey for blowing the whistle on corruption in the Golden Quadrilateral highway project in Bihar in 2003.
The law was passed and notified during the dying days of the previous UPA government and provides for a mechanism to deal with disclosure of corruption or wilful misuse of power against public servants and also "to provide adequate safeguards against victimisation of the person making such complaint..."
Five years after notification, the law has not been operationalised.
In August 2018, the Ministry of Personnel, Public Grievances & Pensions explained the delay to the Rajya Sabha in a written reply : "As the Act required amendments aimed at safeguarding against disclosures affecting sovereignty and integrity of India, Security of the State, etc., before it is brought into force, the Government introduced the Whistle Blowers Protective (Amendment) Bill, 2015 in the Lok Sabha which has been passed by the Lok Sabha on 13th May, 2015. The said Bill has been transmitted to the Rajya Sabha and is presently pending in the Rajya Sabha."
With the dissolution of the Lok Sabha the bill may have lapsed but the apprehensions of the RTI activists regarding some of the amendments in it, particularly those relating to dilution of protection to the whistle blowers, such as removal of immunity from prosecution under the OSA, and prohibition on certain categories of information allowed under the RTI Act remain. Since the amendments had been tried without prior public consultations, it would be prudent for the new government to do so before attempting the same again.
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