OCTOBER 31, 2023

By Mr M G Kodandaram, IRS, Assistant Director (Retd); ADVOCATE and CONSULTANT

Erosion of RTI Act

THE Right to Information Act, 2005 (hereinafter 'RTI Act') is a significant legislative step in creation of a practical legal regime for citizens to exercise their right to access information held by Public Authorities, as guaranteed under Article 19 of the Indian Constitution. The primary objective of the RTI Act is to equip citizens with the right to access information that is in the ‘Public Interest' and relevant to address their concerns within a timeframe. It's aim is to establish an effective administrative system that enhances transparency in the public functionalities, thus upholding the principles of accountability in a democratic society.

Over the years, several factors have contributed to the diminishing effectiveness of the RTI Act, undermining its very fundamental goals. These include growing number of pending applications in the appellate forums due to insufficient appointments of personnel to information commissions, resulting in a substantial backlog. It is appalling that in some states, information commissions have become non-functional, while others operate without leadership, causing citizens to experience prolonged delays in resolving their applications.

The governments' attitude towards Implementation of the RTI Act has progressively become less favourable and more restrictive. Further,various legislative measures are being taken to weaken the original purpose of the RTI Act, such as the recent amendment introduced through Section 44 of the Digital Personal Data Protection Act (DPDPA) of 2023. These changes not only have narrowed down the scope of the RTI Act but also reduced the authority of commissioners, making it more challenging to access vital information, even when it involves significant ‘Public Interest'. This article explores the consequences of the proposed amendment, aiming to inspire both citizens and governments to give greater importance to enhancing the RTI Act.

Amendment and the Impact

In Section 8(1)(j) of the RTI Act, as it existed, there was no obligation to provide information to any citizen if it pertains to personal information that has no connection to any public activity or interest or if its disclosure would infringe upon an individual's privacy without a valid cause. However, if the Central Public Information Officer (CPIO), State Public Information Officer (SPIO), or the appellate authority, as applicable, is convinced that there is a larger ‘Public Interest' that justifies the release of such information, then such information must be provided to the applicant. Furthermore, this provision reinforces citizens' rights by stating that information that is available to the Parliament or a State Legislature cannot be denied to any person.

The relevant parts of the provision are extracted below for ease of reference.

Section 44(3) of the Digital Personal Data Protection Act (DPDP Act) of 2023substitutesthe previous clause (j) in section 8 of the RTI Act, 2005, stating that personal information is not subject to disclosure. This amendment has raised concerns as it seems to curtail the influence of the RTI Act, potentially even in situations where there is a compelling public interest at stake.

Public Interest under RTI

In the context of the RTI Act, 2005, in a significant judgment of the Supreme Court of India in ‘S. P. Gupta v President of India', (AIR 1982 SC 149), Justice Bhagwati, referred to ‘Public Interest', as: "Redressing public injury, enforcing public duty, protecting social, collective, ‘diffused' rights and interests vindicate public interest… [in the enforcement of which] the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected."In State of Gujarat v Mirzapur Moti Kureshi Kasab Jamat & others (AIR 2006 Supreme Court 212), the Apex court stated, "the interest of general public [public interest] is of a wide import covering public order, public health, public security, morals, economic welfare of the community, and the objects mentioned in Part IV of the Constitution [i.e., Directive Principles of State Policy]".One of the decisions of the Central Information Commission also throws light on this term. Public interest includes "disclosure of information that leads towards greater transparency and accountability" [in the working of a public authority] (Decision No. CIC/OK/A/2006/00046, dt. 02.05.2006).

In RTI Act, the ‘larger public interest' was always more important than private or protected interests. Only such Information which could lead to unwarranted invasion of the privacy of the individual may be denied by the PIO. Overall, if the public interest in disclosure to the citizen outweighs the harm to the protected interest, then the public authority will have to provide information and not reject the request for the same by citizens.

RTI to be Strengthened.

The Right to Information (RTI) Act faces an uncertain fate as the original intent of the Act wanes, and the apparatus for its enforcement gradually deteriorates over the years. The RTI law's reach has diminished as the government has employed other laws to undermine the objectives of the RTI legislation. The government's stance towards the RTI has become progressively more adverse and constrictive across all echelons resulting in evaporation of ‘Public Interest',rightfully protected under RTI regime. These principles not only ensure the containment of corruption but also serve as a mechanism to hold governments and their instrumentalities accountable to the people they serve.

However, the act of disclosing information, in practice, often clashes with other vital public interests, such as the efficient functioning of governments, the optimal utilization of limited financial resources, and the preservation of confidential and sensitive data. Therefore, the need arises to strike a balance between these competing interests while preserving the paramount importance of the democratic ideal, which has now been robbed by this amendment. The RTI Act strives to reconcile these conflicting interests by acknowledging citizens' right to access the information they specifically request, thereby reinforcing the democratic framework.

The Constitution of India, in its wisdom, established the framework for a democratic republic, recognizing the vital role of an informed citizenry and the transparency of information in the successful functioning of democracy. In a progressive democracy, laws should prioritize the interests of the citizens. However, the DPDP Act, 2023 has failed in its mission to safeguard privacy rights, which are an integral part of the right to life as guaranteed by Article 21 of the Constitution. (Please read India's Privacy Journey - Two Steps Forward, Three Steps Back TIOL- OCTOBER 25, 2023 by the author) As a result, those affected by this law find themselves without support, as it is regressive in nature. The recent amendment to the RTI Act through the DPDP Act violates the fundamental rights enshrined in Article 19 of the Constitution. The Governments must actively champion transparency and accountability, upholding the spirit of the RTI Act and resisting any amendments that diminish its efficacy.

Further, to restore the RTI Act to its former effectiveness, it is essential for the government to promptly appoint qualified individuals to fill vacancies within information commissions. Moreover, strenuous efforts should be made to clear the backlog of pending appeals and expedite the resolution of RTI inquiries to ensure timely access to information.

RTI Act serves as a vital instrument for fostering transparency, accountability, and the citizens' entitlement to essential information, ultimately enhancing the nation's democratic structure. Hence, it is the author's belief that it must be safeguarded to uphold the ‘Public Interest'.

[The views expressed are strictly personal.]