A Eulogy to our Fundamental Rights And The Fleeting Sense of Transparency.

Democracy is dead. Long live Democrazy!

So, our Fundamental Rights had a good run. So long the magical Constitutional checks and balances feeding into our utopian visions of a Country that still belonged to the people who birthed it once upon a time. Since it’s our intrepid Government that makes the laws, of course it should be able to steer their statutory interpretation in any direction it pleases as long as just about any Constitutional provision which is somewhere in the vicinity of the subject being debated gets quoted. Resultantly, the Constitution serves to be their invisibility cloak, effectively safeguarding them from public scrutiny.

The Right to Information Act, 2005 that the beloved Government that we recently elected with staggering, jaw-dropping and soul-crushing majority has a(ssailed)mended on July 25, 2019, was not just another insipid piece of legislation. It was, in fact, the very first law that could be used as the poster-girl for the quixotic implementation of truly democratic workings of the State. It wasn’t just about receiving information, its essence had lain in regaining power from the Government, tilting the axis of the hitherto skewed power ratio scales in favor of the citizens, something the Government could never really swill down.

How did we get here?

USHERING IN THE ERA OF INFORMATION

It all began somewhere around the time India lost a war to China (1962) and the people finally began to wake up from the dream of Independence, albeit the nightmare of Partition still lingers on. People began questioning the governmental actions and lack thereof like never before and suddenly there were more persistent and strident demands seeking information and justification from the Government, emphasizing on the virtues of accountability and transparency. However, it took another ten years or so for the Hon’ble Supreme Court of India to take cognizance of the pressing public demands for access to information and rule that the right to information was a fundamental (human) right. In 1975 the Apex Court, in State of UP versus Raj Narain, ruled that: “In a government of responsibility like ours where the agents of the public must be responsible for their conduct, there can be but a few secrets. The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearings.” Subsequently, in 1982, the Supreme Court of India, hearing a matter relating to the transfer of judges, held that the right to information was a fundamental right under the Indian Constitution. The judges stated that: “The concept of an open Government is the direct emanation from the right to know which seems implicit in the right of free speech and expression guaranteed under Article 19(1) (a). Therefore, disclosures of information in regard to the functioning of Government must be the rule, and secrecy an exception justified only where the strictest requirement of public interest so demands. The approach of the Court must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest bearing in mind all the time that disclosure also serves an important aspect of public interest”[1]

Unsurprisingly, despite all this, there was little effort by the Government to institutionalize the right to information and to set up a legal regime which could facilitate its exercise by the common citizen. Though in 1985, following the disastrous gas leak in the Union Carbide Corporation plant in Bhopal, various environmental groups petitioned the Supreme Court asking for transparency in environmental matters; especially where storage of hazardous materials was concerned, and yet specific relief in this matter did not result in there being any systemic change in the Government. In 1989, there was a change of government at the national level, the ruling Congress party losing the elections. There were promises by the new ruling coalition to quickly bring in a right to information law, but the early collapse of this Government and reported resistance by the bureaucracy resulted in a morbid status quo. It was only in the mid1990s, with the coming together of various people’s movements, that there was concerted and sustained pressure towards such institutionalization. It was only then that the state began to respond and work towards appropriate legislation.

FIGHTING FOR IT

In April 1996, thousands of residents of Beawar, a town in Central Rajasthan, marched to the office of the Sub-Divisional Magistrate. They had a simple demand: “Humara Paisa, Humara Hisaab” (our money, our account). This was a watershed moment for the Indian society. Instead of asking for the customary roti, kapda aur makaan (food, clothing and shelter), people were asking for the right to information. The Beawar agitation of 1996 started a decade-long process which culminated with the enactment of the RTI Act in 2005.

The 1990s saw the emergence of a right to information movement which primarily comprised three kinds of stakeholders. First, there were people’s movements working on ensuring basic economic rights and access to government schemes for the rural poor. The relevance and importance of transparency was brought home to them when they found that the landless workers in rural areas were often cheated and not paid their full wages. Yet, the workers could not challenge their paymasters, who claimed that they had worked for fewer days than they actually had, as these workers were denied access to the attendance register in which they had affixed their thumbprints every day they worked because these were “government records”. The second group of activists who joined hands in the fight for transparency was of those fighting for the human rights of various individuals and groups, especially in conflict-prone areas of India. They found that their efforts to prevent human rights abuses and illegal detentions and disappearances were frustrated because they were denied access to the relevant information. The third group of supporters that was of the environmentalists who were concerned about the rapid destruction and degradation of the environment. They were spurred on by the success, though limited, of an earlier petition to the Supreme Court demanding transparency about environmental matters. Along with these movements, central to the fight for transparency were various professionals, especially journalists, lawyers, academicians, and some retired and serving civil servants.[2]

In August 1996, a meeting was convened at the Gandhi Peace Foundation, in New Delhi where the National Campaign for People’s Right to Information ("NCPRI") was born. This campaign, after detailed discussions, decided that the best way to ensure that the fundamental right to information is universally exercised would be to get an appropriate law enacted, which governed the whole country. Consequently, one of the first tasks that the NCPRI addressed itself to was to draft a Right to Information law that could form the basis of the proposed National Act. Once drafted, this draft bill was sent to the Press Council of India, which was headed by a sympathetic chairperson, Justice S.B. Sawant, who was the then retired judge of the Supreme Court of India. The press Council examined and revised the draft bill which was then presented at a large conference, organized in Delhi, which had among its participants representatives of most of the important political parties of India and was enthusiastically endorsed by the participants, including those from the political parties. The NCPRI then sent this much-debated and widely supported bill to the Government of India, with a request that the government considers urgently converting it into law. In response, the Government of India set up a committee, known as the Shourie Committee, after its chair, Mr. H.D. Shourie. The Shourie Committee was given the responsibility of examining the draft Right to Information Bill and making recommendations that would help the government to institutionalize transparency. The committee worked fast and presented its report to the Government within a few months of being set up, though it did succeed in significantly diluting the draft RTI bill drafted by civil society groups. The consumer protection movement in India had also been concerned about the lack of transparency with regards to matters that affected consumer rights. They had also formulated an “Access to Information Bill” in 1996. Evidently, the dominant mood in the government was against any such move, but it was never politically expedient to openly oppose transparency as it would make the government seem unwilling to be accountable, almost as if it had something to hide (which of course it didn't and never does). Therefore, inevitably, the draft Bill, based on the recommendations of the Shourie Committee, was referred to another Committee, this time a Parliamentary committee. As predicted, these internal contradictions within and among different levels of the government had to, sooner or later, come to a head. In 1999 Mr. Ram Jethmalani, the then Union Minister for Urban Development, issued an administrative order enabling citizens to inspect and receive photocopies of files in his Ministry. This, of course, rang alarm bells among the bureaucracy and among many of his cabinet colleagues. Though the Minister’s order was quickly reversed by the then Prime Minister, it gave an opening for the activists and lawyers to file a Petition in the Supreme Court of India questioning the right of the Prime Minister to reverse a minister’s order, especially when the order was in keeping with various Supreme Court judgments declaring the right to information to be a Fundamental Right. Meanwhile, as mentioned earlier, a case had been filed in the Supreme Court questioning the unwillingness of the government to facilitate the exercise of the Fundamental Right to Information. This case continued from 2000 to 2002 with the Government using all its resources to delay any decision. However, finally, the Court lost patience and gave an ultimatum to the Government. Consequently, the government enacted the Freedom of Information Act, 2002 (“FoIA”). It seemed that the will of the people, supported by the might of the Supreme Court of India, had finally prevailed and the representatives of the people had enacted the required law, even if it was a very watered-down version of the original Bill drafted by the people[3]. Conveniently, theFoIA, as passed by Parliament in 2002, had the provision that it would come into effect from the date notified. Interestingly, despite being passed by both houses of Parliament and having received presidential assent, this Act was never notified and therefore never became effective. The bureaucracy had, in fact, had the last laugh!

Eventually, in consequence of the people’s movements and persistent demands, a system that was not willing to operationalize a much weaker Freedom of Information Act, was suddenly confronted with the prospect of having to stand by and watch a much stronger transparency Bill which had been recommended by the National Advisory Committee ("NAC") become law. Therefore, damage control measures were set into motion and, soon after, a notice appeared in some of the national newspapers announcing the Government’s intention to finally (after two and a half years) notify the Freedom of Information Act, 2002. It sought suggestions from the public on the rules related to the FoIA. Battling this new challenge, the Government had decided that the best way of neutralizing the NAC recommendations was to resuscitate the old FoIA and suggest that amendments can be thought of, if necessary, in this act, after a few years’ experience. The first of these amendments was the renaming of the Act from “Freedom of Information” to “Right to Information” (“RTI”). The RTI Act was among the first of the laws unveiling the rights-based approach to public entitlement, subsequent ones include the National Rural Employment Guarantee Act ("NREGA") and the Right to Education Act ("RTE"). The rights-based approach, apart from empowering the people, also does away with the prevailing system of benign dispensation of entitlements, leading to state patronage and corruption. It allows even the poorest of the poor to demand with dignity what is their due, rather than begging for it and humiliating themselves while being at the mercy of the insensitive, partisan or corrupt civil bureaucrats.

The intense lobbying paid off and after a tense and pivotal meeting with the Prime Minister (arranged by a former Prime Minister, who was also present and supportive), in the middle of December 2004, the Government agreed to introduce in the Parliament, a fresh RTI Bill along the lines recommended by the NAC. Consequently, the Government of India introduced a revised Right to Information Bill in Parliament on 22 December 2004, just a day or two before its winter recess. Unfortunately, though this RTI Bill was a vast improvement over the 2002 Act, some of the critical clauses recommended by the NCPRI and endorsed by the NAC had been deleted or amended. Most significantly, the 2004 Bill was applicable only to the central (federal) government, and not to the states. This omission was particularly significant as most of the information that was of relevance to the common person, especially the rural and urban poor, was with state governments and not with the Government of India. Consequently, there was a sharp reaction from civil society groups, while the Government set up a group of ministers to review the Bill, and the Speaker of the Lok Sabha (the lower house of Parliament) referred the RTI Bill to the concerned Standing Committee of the Parliament. Soon after, the NAC met and expressed, in a letter to the Prime Minister, their unanimous support for their original recommendations. Representatives of the NCPRI and various other civil society groups sent in written submissions to the Parliamentary Committee and many were invited to give verbal evidence. The group of Ministers, chaired by the senior minister, Shri Pranab Mukherjee, was also lobbied. Fortunately, these efforts were mostly successful and the Parliamentary Committee and Group of Ministers recommended the restitution of most of the provisions that had been deleted, including applicability to states. The Right to Information Bill, as amended, was passed by both houses of the Indian Parliament in May 2005, got Presidential assent on 15 June 2005, and became fully operational from 13 October 2005.

FIGHTING TO KEEP IT

Even while according assent “in due deference to our Parliament”, the then President had some reservations which he expressed in a letter dated 15 June 2005 addressed to the Prime Minister. Essentially, the President wanted communication between the President and the Prime Minister exempt from disclosure. He also wanted file notings[4] to be exempt. The Prime Minister, in his reply dated 26 July 2005, disagreed with the first point but reassured the President (wrongly, as it turned out), that file notings were exempt under the RTI Act. Less than a year after the RTI Act came into force, there were rumors that the Government of India was intending to amend it, ostensibly to make it “more effective”. Sympathizers within the government confirmed that a bill to amend the RTI Act had been approved by the Cabinet and was ready for introduction in Parliament in the coming session. A copy of the draft amendment bill also became available, though legally it would not be publicly accessible till it was presented in Parliament. A perusal of the draft Bill revealed that the main thrust of the amendments was to effectively remove “file notings” from under the purview of the RTI Act. The genesis of this demand of the government lay in the drafting of the RTI Act itself. When people’s movements were drafting the RTI Act, they had under the definition of information specifically added “including file notings”.

As soon as the RTI Act became operative, the nodal department of the Government of India (Department of Personnel and Training) stated on its web site that file notings need not be disclosed under the RTI Act. This was challenged by citizens, who appealed to the central, and various state information commissions. Despite Government efforts, various Information Commissions held that, as per the definition of information in the RTI Act, file notings could not, as a class of records, be excluded. This forced the Government to try and amend the RTI Act itself. The Government tried to perpetuate the myth that, in amending the RTI Act, they were actually trying to strengthen rather than weaken the act. In a letter addressed to the noted RTI activist Anna Hazare, the Prime Minister states: “File notings were never covered in the definition of ‘information’ in the RTI Act passed by Parliament. In fact, the amendments being currently proposed expand the scope of the Act to specifically include file notings relating to development and social issues. The overall effort is to promote even greater transparency and accountability in our decision-making process”.

Fortunately, the public didn’t buy the argument, especially as more than one Information Commission had held that the RTI Act, in its present form, did include file notings. People’s organizations reacted strongly to this attempt to weaken the RTI Act and restrict its scope and coverage. They organized a nation-wide campaign, including a dharna (sit-down protest) near the Parliament. A point by point answer to all the issues raised by the government, in favor of this and other proposed amendments, was prepared by RTI activists and publicly conveyed to the Government, with the challenge that the Government should publicly debate the issues. The Government beat a hasty retreat in front of this onslaught and the Amendment Bill, as approved by the Cabinet, was never introduced in the Parliament.

In 2009 fresh rumors started circulating that the Government was once again proposing to amend the RTI Act. The real agenda remained “file notings” though this time around they were calling it “discussion/consultations that take place before arriving at a decision”. Other aspects were also included and mostly involved either non-issues (like whether information commissioners had to all sit together to give orders, or could they do so individually), or issues that could easily be tackled by amending the rules (like defining “substantially funded” or facilitating use by Indians residing abroad), without touching the Act itself. Another issue that made its appearance, was the effort to exempt so-called “frivolous and vexatious” applications. The first report of the Second Administrative Reforms Commission (ARC), presented in June 2008, had the ill-founded recommendation that the RTI Act should be amended to provide for the exclusion of any application that is “frivolous or vexatious”. Meanwhile, a threat from a new quarter, the judiciary, emerged. In 2007, an RTI application was filed with the Supreme Court (SC) asking, among other things, whether SC judges and high court (HC) judges are submitting information about their assets to their respective chief justices. This information was denied even though the Central Information Commission subsequently upheld the appeal. The main issue was whether the office of the Chief Justice of India (CJI) was under the purview of the RTI Act. The matter was then appealed to by the Supreme Court Registry before the High Court of Delhi, where a single judge ruled that the CJI was covered under the RTI Act.[5] A fresh appeal was filed by the Supreme Court in front of a full bench of the Delhi High Court which has also, since, ruled against the Supreme Court[6]. The Supreme Court has now taken the somewhat unusual and perhaps unprecedented step of filing an appeal against the order of the full bench of the Delhi High Court in front of itself. Interestingly, the real issue was no longer the assets of the Supreme Court judges. In fact, perhaps at least partly in response to public pressure and perception, judges of the Supreme Court and various high courts (including Delhi) had already put the list of their assets on the web. The dispute seemed to be about more sensitive issues, arising out of recent controversies about the basis on which high court judges were recommended for elevation to the Supreme Court. Newspaper reports suggested that some members of the higher judiciary were concerned that if the office of the Chief Justice of India was declared to be a public authority then the basis on which individual judges were recommended or ignored for elevation would also have to be made public. Therefore, even as the Supreme Court prepared to listen to an appeal from itself to itself, great pressure was exerted on the government to save them the embarrassment of either ruling in their own favour or ruling against themselves. This the government could do if it amended the RTI Act and excluded the office of the Chief Justice of India (and presumably other such “high constitutional offices”) from the purview of the RTI Act. Even while the appeal against the single judge order to the full bench of the Delhi High Court was pending, the then CJI wrote a long letter to the Prime Minister, trying to make a case for the exclusion of the CJI from the scope of the RTI Act. Among other things, he contended that “Pursuant to the decision of the Delhi High Court and in view of the wide definition of information under section 2(f) of the RTI Act, several confidential and sensitive matters which are exclusively in the custody of the Chief Justice of India may have to be disclosed to the applicant-citizens exercising their right for such information under the RTI Act. Undoubtedly, this would prejudicially affect the working and functioning of the Supreme Court as this would make a serious inroad into the independence of the judiciary……In this scenario, I earnestly and sincerely feel that Section 8 of the RTI Act needs to be suitably amended by inserting another clause to the effect that any information, disclosure of which would prejudicially affect the independence of the judiciary should be exempted from disclosure……”. All this came together in October 2009, when just after the annual conference, organized each year by the CIC, the nodal department of the Government of India (the DoPT) organized a meeting of chief information commissioners and information commissioners from across the country to discuss the proposed amendments. As RTI activists had already got wind of this meeting, many of the commissioners were briefed in advance. In any case, most of the information commissioners were sympathetic to the activist’s point of view and, by all accounts, the proposed amendments were rejected by almost all those present.

DéJà VU

In the present day, as on July 30, 2019, the Government has finally succeeded in destroying the RTI Act by striking it at its very roots which the Government (in these matters, all the political parties are united) has been trying to do ever since the President was dragged kicking and screaming to its signing ceremony.

The Government jettisoned the RTI Amendment Bill, 2019 in our faces as if they were the water bottles Trump threw at the surviving Puerto Ricans in the wake of Hurricane Mario, of course sans averting or alluding to the fact that millions of these bottles were left at the airport by the Trump Administration.

As Sarah Smarsh Harshland put it, it can be a benign cliché or a weaponized political idea

The amended Act has changed sections 13 and 16 of the RTI Act, 2005. Section 13 of the original Act sets the term of Central Chief Information Commissioner and Information Commissioners at five years (or until the age of 65, whichever is earlier). It has been replaced now with “for such term” as may be prescribed by the Central government.

Again, Section 13 says that salaries, allowances and other terms of service of the “Chief Information Commissioner shall be the same as that of the Chief Election Commissioner”, and those of an Information Commissioner “shall be the same as of the Election Commissioner”. Through amendment now, the salaries, allowances and other terms of service of the Chief Information Commissioner and the Information Commissioners “shall be such as may be prescribed by the Central Government”.

Almost identical changes through amending Section 16 of the original Act have been brought to Chief Information Commissioner and Information Commissioners of states. While the salaries, allowances, and other terms of service now “shall be such as prescribed by the Central Government”, even State Chief Information Commissioner and Information Commission would be chosen by the Centre. Earlier as per the original Act, State Chief Information Commissioner, and Information Commissioner were picked up by a three-member panel consisting of the Chief Minister (CM), state’s leader of the opposition or leader of the largest opposition party in the state assembly and a state cabinet minister nominated by the CM.

The Modi government has defended the changes saying that the Information Commissions are statutory bodies and therefore Centre has the right to make rules. By controlling the tenure and acquiring the authority to fix salaries, allowances and other terms of service, the Government has radically altered the character of the Information Commissions rendering them futile and mere puppets at the hands of the Government. At the same time, the Central Government has also disempowered states by acquiring the right to appoint their Chief Information Commissioner and Information Commissioner that is clearly against the principles of cooperative federalism about which the BJP leaders including Prime Minister Narendra Modi spoke ever so eloquently.

Interestingly, the British Government took longer than India to formulate a transparency law, and as soon as it was passed, the British Government left no stone unturned trying to destroy it. Perhaps British Colonial influence runs deeper within the Indian bureaucracy than we thought.

Akin to the case of Aadhar, the government and its sympathizers have been quick to declare any dissent against the RTI Act amendments to be coming from the privileged intelligentsia. However, the story of the Beawar agitation should serve as a simple reminder that legislation like the RTI Act is not just for activists and lawyers. It is for the (wo)man on the street.

The paternalistic comport with which the Government has carried itself in fixing the tenure and salaries of Information Commissioners is much like shutting down the Publishing Houses that exercise their freedom of speech inveighing against the Government except that the former is more of an ‘in your face’ kind of law while the latter is merely a practice everyone pretends to be ignorant of.

The Landmark Kesvananda Bharti Judgment has been assailed by implication, the basic structure doctrine has been violated and the Government has once again disempowered its people while empowering itself. A common (wo)man is deemed a criminal if s/he so much as utters a single word disdaining or unintentionally offending religious sentiments of anyone in this secular country where cows feel safer than women while a Government official runs scot-free beaming with pride after ravaging the shrine of the Constitution.

WAY FORWARD

Our struggle for the Fundamental Right to information has been encapsulated above to emphasize on the lessons we have learnt that can be applied in the current predicament we inevitably happened to stumble upon and draw your attention to the fact that the only novelty in the Government’s misdeeds that can be found is in the fact that it actually enacted the RTI (Amendment) Act, 2019 relying heavily on its sweeping victory in the recent elections. This is mostly because the Indian State, like many others, is essentially reactive. It reacts to stimuli, and the nature and intensity of its reaction is mostly in direct proportion to the nature and intensity of the stimulus.

What do we do now?

• We stay ready to exploit opportunities that might suddenly appear. For instance, in 2004, the change of government, the refusal of Mrs. Sonia Gandhi to become the Prime Minister and the extraordinary level of moral authority this gave her, the setting up of the National Advisory Council under her leadership, the unfamiliarity of the system with this first-of-its-kind council and therefore its inability to “manage” and neutralize it, the hesitation of the bureaucrat to openly oppose proposals coming from this council, all led to a window of opportunity which allowed the RTI Act to “slip through”.
•  We question and protest. Granted, it has no immediate effect and the Government is trained to ignore and stifle the people protesting on the streets, but it has been tried and tested that if enough number of people are united in pursuit of a common goal then they win and historically at that.
• We build alliances across the board, ensure that there is grassroots mobilization and pose the demand as a political demand rather than a techno-managerial one.
• We reach out to the Apex Court for the preservation of our Fundamental Rights and for it to be recognized that acknowledging people’s right to information is acknowledging that they are the ones to whom the government is ultimately and directly answerable. When people exercise this right, they actually take back some of the power that was rightly theirs but had, over the years, been usurped by governments and institutions.
• We write letters to all the relevant ministers. My suggestion? You might want to add the following: “Insofar as manifestations of functional deficiencies are agreed by any and all concerned parties to be imperceivable, and are so stipulated, it is incumbent upon said heretofore mentioned parties to exercise the deferment of otherwise pertinent maintenance procedures. In other words, if it ain't broke, don't fix it.”
• We spread awareness. We educate and get educated. We mobilize people and inspire them to fight for their rights. Edmund Burke said that the study of law renders men acute, they are able to augur misgovernment at a distance and sniff the approach of tyranny in the ever tainted breeze. I think it’s true of all the studies. I urge you all, my learned friends, to augur misgovernment at a distance and sniff the approach of tyranny in the ever tainted breeze and make efforts to STOP it.

Whatever we do, we don’t stop FIGHTING.

[1] SP Gupta & others vs The President of India and others, 1982, AIR (SC) 149, p. 234

[2] The evolution and genesis of the right to information regime in India by Shekhar Singh

[3]Essentially, the five indicators of a strong transparency law can be seen to be minimum exclusions, mandatory and reasonable timelines, independent appeals, stringent penalties and universal accessibility. The 2002 Bill failed on most of these counts. It excluded a large number of intelligence and security agencies from the ambit of the act, it had no mechanism for independent appeals, it prescribed no penalties for violation of the act and it restricted the access only to “citizens” and did not put a cap on the fees chargeable under the act.

[4] File notings are the views, recommendations and decisions recorded by civil servants/ministers in files and include the deliberative process which leads up to the final decision. In the Indian system this deliberative process is usually recorded on sheets of (usually light green) paper with a margin. These sheets are attached to a file but are distinct from the correspondence and other documents that comprise the remaining file. There are strict conventions about how notes are to be recorded – and even the colour of ink to be used – and usually the file and the consequent notes move up and down the hierarchy, starting from near bottom, moving up to the appropriate decision making level, and then coming down for implementation of the decision and storage of the file.

[5]Judgment of the High Court of Delhi dated 2 September, 2009, W.P. (C) 288/2009.

[6]Judgment of the High Court of Delhi dated 12 January 2010, LPA No. 50-1/2009.