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How the Supreme Court has failed to save the RTI

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Partha Mudgil
Partha MudgilApr 13, 2015 | 12:00

How the Supreme Court has failed to save the RTI

The Right to Information is more than just a piece of legislation. It represents an aspiration and demand for transparency and accountability from a state that is often ineffective, corrupt and apathetic. In the hands of common citizens, it is sometimes the only way to breach the impregnable wall of silence and misinformation they encounter in their interactions with the bureaucracy. Not surprisingly, the state and its officials are far from enthusiastic in their support for the Right to Information. It therefore falls upon our courts to not only stand up for it, but also promote it. In this, the highest court of the country is failing us and unless it recognises the damage its decisions have caused, it will bear the responsibility for undermining one of the most important movements in modern India.

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Since 2005, when the Right to Information Act was enacted, the Supreme Court of India has heard 14 cases related to request for information under the RTI Act. In all but one case, the court ruled in favour of the public authority withholding information. This statistic, though disappointing, would have been justifiable if the court had given adequate reasons for these refusals. Instead, the reasons behind the Supreme Court's decisions are either absent or incoherent, offering no explanation for its apparent disregard for the spirit of the RTI Act. As a result, some dangerous precedents have emerged, which may have a serious impact on the long-term effectiveness of the transparency regime in India.

The problem lies in how the court, like the state, views the citizens' Right to Information. The intense negotiations that preceded the adoption of the RTI Act led to the inclusion of Paragraph four in the Preamble. This paragraph recognises the need to harmonise provision of information with other public interests such as efficient operation of the government. Not surprisingly, public authorities have used this paragraph extensively to defend their failure to provide information. This campaign to protect the efficiency of the state from the attack of the RTI has been so successful that even Dr Manmohan Singh, the then prime minister, gave a public statement on how the excessive use of the RTI was affecting efficiency in government departments - a statement that was found, through an RTI application, to have absolutely no basis in any facts. In fact, a recently published report on the RTI found that, in the PIO's own perceptions, 77 per cent spent less than 13 per cent of their time in doing RTI-related work per week. Further, an analysis of RTI applications found that 67 per cent applications sought information that should either have already been made public under Section 4 of the RTI Act, or should have been provided to the applicant without an RTI application in the first place. In other words, a large majority of designated government officers spend less than a day per week giving out information that should have been provided to the public without any RTI application.

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In the face of a state hostile to the very idea of the Right to Information, it falls on the courts to protect this right. Sadly, the Supreme Court too seems to think that releasing information is a bad idea. In fact, it has created a completely arbitrary distinction between information that promotes transparency and discourages corruption, and "other information" - where such "other information" is more readily denied. This distinction raises a number of hairy questions, like who decides the category in which your RTI application falls in? And more importantly, why should I be denied information that is my right just because it is not meant to expose any corruption? These are questions that the Supreme Court appears not to have considered. It also seems to have ignored the fact that the government, and its officials, have consistently failed to publish information suo moto under the RTI Act as they are supposed to. In a country that consistently lands at the bottom of transparency and corruption indices, the RTI movement is a citizen-led crusade to build a more responsive and responsible state. It represents a vision for a less corrupt India. As one of the most progressive institutions in the country, the Supreme Court's treatment of the Right to Information and its careless dismissal of RTI cases is at odds with its own alleged efforts to build a better society. It bears the responsibility of not only deciding RTI cases that end up at its doors, but also set precedents that create the conditions for the effective implementation of the RTI Act. Unless the Supreme Court reviews its own stand on this issue, it risks being seen as part of the same venal system that serves only those in power, and thwarts any attempts to make the state more transparent and accountable.

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Last updated: October 12, 2015 | 15:48
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