Opinion Holding authority to account
Like clockwork,news of amendments to the Right to Information Act makes its way to newspaper headlines. It started with the issue of vexatious and frivolous applications...
Like clockwork,news of amendments to the Right to Information Act (RTI) makes its way to newspaper headlines. It started with the issue of vexatious and frivolous applications,and whether discussion notes (file notings) ought to be made public. Now,it has moved on to the latest controversy,sparked by the office of the Chief Justice of India (CJI) seeking to exempt itself from the purview of the act. For the moment,the official government line is that amendments are on hold till public consultations are undertaken. Whether or not these consultations take place,the proposed amendments have serious ramifications for the RTI and for efforts to institute norms of transparency and accountability in our institutions of governance,and must thus be debated.
Lets consider the latest controversy first. The question over whether the office of the CJI ought to fall within the purview of the RTI came to a head recently when the Supreme Courts secretary general moved the apex court to appeal against the Delhi high court verdict declaring the CJI a public authority. The irony of the apex court appealing to itself is inescapable but this move also throws up important questions about the scope and powers of the RTI.
The act states that any authority established by the Constitution,Parliament,state legislatures or by government notifications and orders is a public authority. The fundamental principle here is that public institutions institutions that draw on public funds and that are endowed with the power to make decisions that directly impact citizens lives have to be answerable for their conduct. On this view,the office of the CJI,as upheld by the Delhi high court,is a public authority.
The Supreme Court disagrees. According to reports,the appeal argues that placing the office of the CJI within the ambit of the RTI compromises judicial independence. Judges discharge unique constitutional functions making it necessary not to subject them to litigative public debate. While the constitutional merits of this argument ought to be the subject of a broader public debate,one reason why this argument may not hold much weight in India is that the judiciary no longer performs its traditional role. In fact,and by its own argument,because of government inaction and ineffectiveness,the Supreme Court has begun to shape policy through public interest litigation and in this process,has forayed into legislative and executive functions. Given that judges are no longer discharging unique functions but play a broader role in governance,shouldnt they be subject to the same norms that apply to the rest of the system? Whatever the technicalities,the move for exemption undermines the credibility of the apex court and this is a serious concern.
Related is the issue of what constitutes public information. The argument for the proposed amendment to exempt discussion notes or file notings is that it curbs discretion and hampers decision making and by implication ought not to be made public. The same argument has been used by the courts against information requests for details on appointment procedures. The validity of the argument is questionable. On first principles,any information essential to understanding how public functionaries exercise power and authority in public interest is public information,and decision making processes are an important element of this. No doubt,when it comes to tricky issues like appointments there is a need to strike a balance between discretion and transparency. But in an environment where government posts starting at the block level are being bought and sold,striking this balance in favour of transparency is the only solution.
Finally,there is the question of the nature of applications. If there is one thing that the RTI has achieved,it is the introduction of two new words in our governance vocabulary vexatious and frivolous. At any given opportunity,government argues that the RTI has resulted in an overflow of vexatious and frivolous requests for information that overburden officials and undermine the value of RTI. Yet,there is little real empirical or anecdotal evidence to support this claim. Rather than amend the law,what we need is a systematic analysis of the applications received by public authorities to determine the extent to which these are in fact vexatious and frivolous. The irony is that that information on applications is extremely hard to get in fact you need to file an RTI to access copies of applications.
These regular calls for amendments have served one purpose that of obfuscating the real challenges that the RTI faces. Recent studies on the RTI have highlighted problems such as difficulties in filing applications,delays in appeal processes,the absence of record management systems and the failure of public authorities to comply with the mandate (Section 4) to proactively disclose information. The official line is that amendments will serve to strengthen the RTI. This is clearly not the case. Rather than push for amendments,the prime minister and his government would do well to focus on addressing the implementation challenges and in so,doing make good on his commitment to bring in an era of accountable governance.
The writer is with theAccountability Initiative,Centre for Policy Research.
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