New Delhi: Chief Justice of India Sharad Arvind Bobde’s observation on Monday that the unbridled use of the Right to Information (RTI) Act has created a sense of “paralysis and fear” in the government, has not gone down well with RTI activists. While some questioned the rationale of behind the comments, considering the case before the bench pertained to the delay by the government in implementing the court’s orders to appoint information commissioners, others said it could set a “dangerous trend” since the Right to Information as also Right to Speech and publish all derive from the same Article 19(1)(a) of the Constitution.
During the hearing of a case filed by activists Anjali Bhardwaj and retired Commodore Lokesh Batra, Justice Bobde observed that “there is paralysis and fear about this Act (RTI). People are not taking decisions.” He further stated that “we want to find a way to stop the abuse of RTI Act. Don’t say as if there is no abuse.”
When senior advocate Prashant Bhushan, who was appearing for Bhardwaj, said “only those who are corrupt have reason to fear”, Justice Bobde went ahead to state that time has come to lay down guidelines on the use of the RTI. Guidelines, he said, need to be there to check the locus of the RTI applicant and to have a “filter” on the kind of requests that are made. He said RTI “cannot be an unrivalled right. There is the serious problem of people filing RTI requests with malafide intentions, people set up by rivals.”
The judge noted that the Act was being used for “criminal intimidation” by those who have an axe to grind. “When I was in Mumbai, a government official said the Mantralaya is almost paralysed because of the kind of RTI requests made… Have you seen the kind of people seeking information. Anybody can ask. People describe themselves as RTI activists. Is that an occupation?” he was quoted as saying.
Reacting to the development, Bhardwaj said, “These were terrible observations which are totally uncalled for. They said there is abuse of the law. He talked about locus. The biggest issue is RTI is a fundamental right and it flows from Article 19(1) of the Constitution which is free speech and expression. If it is a fundamental right related to every person’s free speech and expression. Then how can you bring locus in?”
She added that the Supreme Court has itself held in S.P. Gupta and other cases, that in a democracy, people have a right to know what the government and their representatives are doing. “There is a tremendous public interest involved. Even when the RTI law was drafted, it kept in mind the fact that you do not have to prove locus because it is a fundamental right which people can exercise despite not being directly involved in something,” she said.
Bhardwaj cautioned that if people have to start “proving locus standi”, then it will provide an opportunity for public authorities to start denying information.
Moreover, Bhardwaj said she was very surprised that the Bench made these observations. “The case was very different. On February 15, 2019, the Supreme Court judgment was very clear on the transparent appointment of commissioners and it was not complied with. So we simply went back to court to say the previous order was not being followed. There was no question of opening more issues.”
“We were talking of governments not putting in place commissions, whereas the Supreme Court spoke of why RTI cannot be an unbridled right. We know this because under the Act, section 8 speaks about exemptions – like information that impacts national security or people’s privacy. There was no provocation to open this kind of debate or discussion,” Bhardwaj added.
The RTI activist also said she had tweeted how the Prime Minister’s Office had itself said that there was no evidence of gross misuse of the RTI law and that it was not an unfettered right. So where is the concern of the judges coming from?
Extremely concerning comments by judges during hearing today- said there is misuse of #RTI & that it cant be an unbridled right.
RTI is subject to exemptions laid down in the law. Also, there is no evidence to show misuse of RTI. This was also stated by Minister in Parliament 👇 pic.twitter.com/8in73lEQ6t
— Anjali Bhardwaj (@AnjaliB_) December 16, 2019
How does CJI see misuse when Shah says there is none?
Further, she noted that during his address at the 14th Annual convention of Central Information Commission, Union Home Minister Amit Shah too observed that there was no misuse of the law. He said, “There was no misuse of the law and that when the law got passed in 2005, I was very worried that it may be misused but I can say with surety now that those fears have been misplaced and there is no misuse of the law now.”
“When the home minister had also put across the government’s position, then where are these concerns coming from? Which officials are they concerned about?” Bhardwaj questioned.
She said the law did not require people to prove their locus standi because the poor, underprivileged or citizens trying to identify corruption would have been denied information.
“How can anyone blackmail anyone who has not done anything wrong? If there is no wrongdoing, there will be no fear.”
On the CJI’s remarks, she said: “Our argument is why is there a paralysis? Honest officers, in fact, welcome the RTI because it helps them push back illegitimate pressures. They can say, ‘Tomorrow these files will be out, so I will not do a wrong thing’.”
‘Government data does not support RTI misuse claim’
Venkatesh Nayak of the Commonwealth Human Rights Initiative said that the concerns expressed by the bench appear to be genuine, but there is simply no data to back up the claim that RTI is being used by professionals to the detriment of decision making processes in government offices.
He recalled how in 2011, an RTI reply from the PMO had indicated very clearly that there was no data about misuse of RTI. “The same situation continues till date.”
Nayak said he made several attempts to find this information from Uttar Pradesh, where several complaints were made verbally by senior government functionaries, including some information commissioners. “However, despite contacting the UP State Information Commission and its General Administration Department, which is responsible for implementing RTI, and the UP Prashasan Academy, no one had any data or even a single case to show how RTIs were being misused or busybodies were misusing the Act.”
So, he said, government authorities have been unable to demonstrate in a credible manner that the Act was being misused.
‘Constitution Bench held that people have a right to know everything’
As for the CJI saying that only those concerned with a case should be allowed access to information, Nayak said he was in “respectful disagreement” with the observation.
“If one looks at the Constitution Bench’s observation in 1975,” he said, “the Right to Information was deemed to be a part of right to freedom of speech and expression. The same court had also said that the citizenry has a right to know everything that is done by the government in a public way. They made no such restrictions that the access to information should be limited only to the personal affairs of a citizen.” Likewise, he said, this is the right of access which the Parliament of India also gave the people through the Right to Information Act.
‘A dangerous trend’
Former Central Information Commissioner Shailesh Gandhi cautioned that since the right to information is closely linked to those of speech and publish, the latter too could be under threat. “RTI is covered under Article 19(1) (a) of the Constitution. It is a fundamental right. The right to publish and the right to speech also arise from Article 19(1)(a). Therefore logically all three should have same considerations. Article 19(2) is what constricts what can be used in Article 19(1)(a). The guidelines have to be uniform. This elementary thing has been lost in the understanding seen.”
Gandhi said, “While in the last 70 years there has been no effort to curb the right to speech and right to publish overall, and these have by and large been expanded by the courts, RTI is the only place where they come out with a negative narrative.”
He then noted that “they say the administration has been paralysed, but has there been any one public incident?”
Calculations revealed only 3% time spent on answering queries
As for the issue of 75% of the time being spent by officials on replying to RTI, Gandhi said this mention was made in an earlier judgment of the Supreme Court in the matter in 2010 or 2011. “I had then pointed out that the maximum number of RTI questions in the country would be around one crore. I did a calculation: Even if three hours were spent on each application, it would still take up only 3% of the working staff’s time.”
He held that “these charges are being made without any substance or it is a very dangerous path we are on – today it is the right to information, tomorrow it could be the right to publish or right to speech.”