There are perhaps few laws in India that could compete with the Right to Information (RTI) Act for the number of obituaries written on it and existential threats it is said to face. RTI activist Aruna Roy once quipped “people have been predicting its demise since it was born.” 12 October, 2012, marks seven years of the RTI Act.
The latest round of doomsday predictions have been inspired by last month’s Supreme Court order that citizens and activists believe could cripple the functioning of already struggling information commissions.
This is not the first time the judiciary has stumped citizens and activists with its orders that seem to do more harm than good to the transparency movement. The orders and verdicts on Right to Information cases has repeatedly cast the judiciary more as a threat and less as a defender of the RTI Act.
Describing the role of judiciary on RTI movement as having taken a “conservative route after the RTI Act has come in,” Venkatesh Nayak, coordinator of the Right to Information Programme at the Commonwealth Human Rights Initiative (CHRI), gives examples of the significant orders that have undermined the cause of right to information.
“The CBSE judgment revealed the apex court’s thinking about the RTI Act. Unlike the High Courts, which said that the RTI Act must be interpreted liberally and the exemptions strictly, the apex court said both access and exemption provisions must be given equal importance. This is against the spirit of a law which is about disclosure and not secrecy. In the Manipur judgment, the apex court rendered Section 18 (that defines the powers and functions of the information commissions) completely ineffective for any redress except levying penalties. Then came the Namit Sharma order, where wings of information commissions were clipped,” Nayak said.
The Namit Sharma case refers to last month’s SC judgment requiring all benches of the information commissions to have one a ‘judicial member’ (Read full report here)
“In 2009, the Delhi high court struck down the Central Information Commission regulations without sufficient justification. But many other high courts in Calcutta, Madras, Karnataka, Bombay, Allahabad, have been giving good interpretations,” Nayak said.
Former central information commissioner Shailesh Gandhi famously identified the judiciary as the second biggest threat to the RTI, next only to the information commissions. In his headlining grabbing statement just before his term at the Central Information Commission ended, Gandhi predicted that the RTI would be dead in five years, thanks to three leading threats – information commissions, the judiciary and the bureaucracy.
“A lot of progressive orders are getting stayed by the courts. And the way our courts function, a case can drag on for five-ten years very easily. If this trend continues, which it is likely to because powerful government departments and those in power whenever there is a decision that goes against them will get a stay order from the courts, it will threaten the RTI,” Gandhi told Firstpost in July on threat from the judiciary. (Read full interview here).
It’s is not orders and judgments alone that have left citizens and activists disappointed, but also it’s response to RTI applications that fall short of upholding the letter and spirit of the RTI Act.
RTI journalist Afroz Alam Sahil recalls his experience of seeking information from the Supreme Court under the RTI Act as being deeply disillusioning. When he was a student at the Jamia Milia Islamia University, he had sought information relating pending terror-related cases.
“Firstly, the SC did not respond within the prescribed time. I went in for a first appeal to which I received a written response simply directing me to visit the Supreme Court website. The question is what happens if the person seeking information does not have access to the Internet? It didn’t end there. During the hearing of the first appeal, when I started to speak in Hindi, I was told I should speak in English. The humiliations continued,” he said.
Sahil says there have been more than one instance where the Supreme Court has responded to queries with ‘deposit Rs 2’ for the information to be given. While it might be technically correct to demand re-imbursement for photo-copies, Sahil points out that in seeking Rs 2, the court ends up spending more money on postage and so does the applicant.
Aruna Roy, pioneer in the RTI movement and member of the National Advisory Council has also spoken out against judiciary’s uninspiring role in defending the RTI Act.
In an earlier interview to Firstpost, Roy had said, “While there certainly have been some useful and landmark rulings by the Courts, it seems clear from the judges assets disclosure case, the rules in many high courts, and the response to RTIs by the Courts that the Courts are troubled by RTI being applied to their own administrative functions. The higher courts in India have occupied the high moral ground for some time. Based on Constitutional provisions, they were the protectors of transparency before the Act came into being."
“They need to realise that they are being carefully watched, and their own credibility is at stake. Unfortunately, even in the judges disclosure case, the Supreme Court has gone in appeal to itself against two rulings by the high court in favour of disclosure and the reach of the RTI Act,” she said. (Full interview here)
As Roy points, the courts have always occupied the high moral ground, they have been stellar defenders of rights of the common man. What then explains the judiciary’s role when it comes to the RTI Act?
“It is easy to order someone else to be transparent, when the finger is pointing at you, it becomes for everybody. This is what has happened with the apex court. Thankfully, most High Courts do not share this thinking,” said Nayak.