2019: Bad for RTI, what happens in 2020?

What is the vision for transparency in 2020? Should we learn any thing from the 2019 sufferings of the RTI? Print and electronic media were accommodating their own interests leaving less space for public.

With the advent of ICT, millions of avenues to ventilate are discovered. They can talk, send pictures, movies, audios and what not, can reach millions in seconds.

Facebook, WhatsApp, YouTube and other such platforms gives opportunities to do many communications. Still, the question remains: Are they educated? Do they have courage to talk on contemporary issues, controversies, and illegal or unconstitutional actions of the governments abusing their power?

If internet is banned, it could be wholesale violation of expression rights, and Article 19(1)(a) of the Constitution and the Article 21, because the living is dependent upon internet connectivity and bandwidth.

One cannot get medicines, if net is not restored. If one does not question, or doubt or criticise the rulers, governance will not improve, for which they should get information from public authorities.

After the fall in 2019, an unforgettable bad year for the RTI, the right of people got diluted, weakened, reduced to a farce with all three estates ruining it in the 70th year of Constitutionally-ruled India.

The 2019 infamous amendment shrunk the size, significance and power of Information Commissioners, besides violating the federal scheme of Indian Constitution.

While October 12 is celebrated as day of empowering citizen with information, the government of India has assaulted the access right with a strong blow through Rules 2019, far more damaging than the amendment, was introduced on October 24, 2019, the RTI damage day.

Initially the RBI was resisting the disclosure in spite of the repeated orders of the CIC, show cause notice to the Governor of RBI and a strong direction of Supreme Court. However, the RBI had to be admonished by the Supreme Court and also warned with use of powers for contempt of court.

That was real ray of hope for RTI from the apex judiciary. When a common man wanted to know whether Constitutional judges have submitted their assets lists as agreed and resolved by them, to their chiefs, the Supreme Court first refused, then resisted and fought tooth and nail for more than 12 years, till November 2019, when it has apparently agreed with the judgment of Delhi High Court to continue the Supreme Court as a whole to be within the purview of the RTI, but excluded office of CJI in such specific form from direct filing of RTI requests.

The RTI request was pending for simple information for more than a decade with the Supreme Court. A tragedy indeed. In addition, the SC went on interpreting each and every provision of the RTI expanding scope of exceptions and shrinking the chances of disclosure.

It gave an inexhaustive list of 'information's that need not be disclosed. Still, a small ray of hope of 'public interest' is giving required oxygen to the RTI, to survive further and help democracy to survive.

Shocker from the Bench

But the fag end of 2019 saw another assault coming from the bench of RTI in the form of observations. The Chief Justice of India observed that "there have been innumerable cases of blackmail, extortion in its working".

This observation was made by the Bench of Bobde, CJI, B R Gavai and Surya Kant, JJ, hearing a PIL for implementation of Supreme Court's directive to appoint Commissioners in Centre and States in time. The bench also wanted to develop some guidelines to curb such abuse.

The CJI said, "There is a kind of paralysis and fear… People are afraid to take action. Everybody is not doing wrong." He said that he had been told that in Maharashtra, the "Mantralaya is paralysed because of this…We don't know why? We are only saying this from our experience as judges.

A public-spirited person should be someone who has something to do with the issue". It is a suggestion, not a direction. Bhushan gave the example of electoral bonds, where political parties would have gained benefits, to make a larger point that only some member of the public would seek information to understand if there was corruption.

Then CJI said, "We are not against information and right to information… there is a need to evolve some kind of guidelines."

Is RTI leading to blackmail?

The RTI Act grants a very small right to citizens, i.e., to copy of a sheet in the file of public authority. That is all. How can a certified copy of a page, which is issued only after thorough examination whether it is exempted under Section 8, help somebody to blackmail the officer?

Indian Penal Code has not listed 'blackmail' as an offence. If someone knew the defect or crime of Mr. X and extorts money from him in return of not exposing defect, it is understood as blackmail. However, Mr X can complain against the extortionist and on proof of it he could be jailed under IPC. Illegal extortion is an offence.

If someone files RTI applications frequently on various issues or if an advocate helps the RTI activist to file such applications and secure the documents which might help them in establishing a fact before court of law or clarify an accusation, why not he practices it as a profession?

The profession could that of a paralegal or person providing a legal aid or a person who is seeking information in public interest? Being engaged in wholetime activity of getting information cannot be straight away called as profession of extortionist.

When a corrupt engineer made huge money on repeated contract of repairing a road, can a citizen seek copies of the file containing the approvals, work details and sanctions of funds? If that officer is scared of exposure, why should justice system be worried about it?

A citizen brought a CD before the Central Information Commission containing the offer of Rs 10,000 as a bribe to the RTI applicant by that corrupt engineer so that such information will not be exposed, and he is not prosecuted.

The applicant demanded the CIC to prosecute the engineer for offering a bribe to him. For the first time in independent India, a public servant offered bribe to a member of public, which is reverse of what generally happens in a corrupt society.

The information legally obtained about corruption in public offices has empowered the powerless citizen, who is otherwise a simple taxpayer. Is it not real empowerment? If a corrupt officer is scared of RTI question of a citizen, is it not victory of democratic power?

Even in the case of wrong of the citizen lured by bribe of Rs 10000 from the engineer, our criminal justice system has no provision to punish the citizen for such an act.

On complaint from that engineer, there shall be an inquiry followed by punishment of culprits as per provisions and process of law. Is that happening?

Supreme Court in its wisdom has secured the freedom of speech as a fundamental right and requisite of democracy with a strong belief that abuse of that freedom could be sufficiently tackled by the restrictions.

The RTI being a part of such right to freedom, is restricted by all those reasonable restrictions in Constitution, and exceptions under RTI Act, etc. The IPC, Information Technology Act, Cable TV Network Act, and plethora of other legislations have enough of provisions to curb abuse of the information brought out by the RTI Act.

The Supreme Court is expected to decide only on basis of solid evidence and not on some isolated experiences or observations by some friends. The RTI is serving as ten-rupee public interest petition that empowers the citizen to enliven the democracy.

In the name of some abuse, without assessing its length and breadth, if the use is curbed and RTI is diluted or power is given to punish the abuse, that power will be totally abused, and corrupt governments will rejoice.

My Lords will you please, understand! My MPs, will you be little more sensible and responsible? My dear Ministers, will you be more reasonable?

Let us all hope 2020 will bring new positive thinking from all three estates for transparency and people's informative empowerment.

(The writer is former Central Information Commissioner and Professor at Bennett University)