Opinion: Right To Information Or A Political Slugfest?

The Right to Information is a statutory right for citizens to secure access to information under the control of public authorities, "in order to promote transparency and accountability in the working of every public authority, ... ..."

The purpose behind the creation of this statutory right is to hold governments and their instrumentalities accountable to the governed.

The Act notes in its preamble that the revelation of information in actual practice is likely to conflict with other public interests, including efficient operations of governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information, and therefore it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal.

With a focus on these noble ideas, when we see the day-to-day rolling out of this statutory right, we see that this has become another vocation for people with a premeditated predisposition toward pandering to populist proclivities. The net outcome is that litigation under this Act has virtually clogged its entire mechanism, so much so that if it is ever mandated that every RTI seeker must disclose their previous RTI activities, most of them would turn out to be history-sheeters as RTI seekers.

The problem is not with the information that is required to further the noble purpose behind the enactment. It is the vigor with which RTI seekers chase their case even beyond the grievance redressal mechanism, to the constitutional courts, invoking Article 226 of the Constitution. This hot pursuit is often driven by extraneous motives such as business rivalry, professional jealousy, and employment-related competitiveness, which are highly personal and are passed off as public interest. At times, it also enters into the arena of political sabre-rattling.

The net result is that the beneficiaries of the RTI regime are almost on the verge of frustrating the entire regime.

In recent times, the most glaring example of misuse of RTI is the petition asking for the Prime Minister's Office to be directed to provide the specific number and year of PM Narendra Modi's degree to the petitioner. In response, the Chief Information Commissioner (CIC) directed the "non-party" Gujarat University to make the best possible search for the information regarding the degrees in the name of "Mr. Narendra Damodar Modi" in the year 1983 and provide it to the Chief Minister of a particular state.

Glaring, not because the RTI seeker was knocking on the wrong doors, since the PMO is not the governmental agency for either issuing degrees, or scrutinising degrees or maintaining a record of degrees.

Glaring, also not because the "non-party" Gujarat University had uploaded the degree on its website, which was also purportedly recorded by the CIC.

Glaring, also not because seeking information on the degrees of any constitutional functionary does not count as "accountability of Governments and their instrumentalities", as required by the RTI Act.

Glaring, also not because under the Indian Constitutional set-up, our democracy is based on the ethos of "universal adult suffrage", under which every citizen of India of voting age, not liable for disqualification - meant for voters - can vote, can contest elections, can get elected, and can hold an office upon getting elected. None of these rights are in any manner related to educational qualification. This doctrine of "universal adult suffrage" is germane to the philosophy of social justice propounded by Babasaheb Ambedkar and is prescribed as a panacea for the various evils within our society.

Glaring, not because Section 8 (1) (e) and (j) of the RTI Act, which mandates "disclosure of information mentioned therein only on the condition stated therein and only after the applicant satisfying and the authority being satisfied about the existence of public interest in such disclosure".

Glaring, actually and factually because the RTI regime is not meant for every passerby to breach my privacy, and seek information as a matter of right, which can legally only be shared with my approval and consent.

Glaring, legally, because the authorities functioning under the RTI regime are not vested with the powers of a writ court under the Constitution of India.

The legal situation of this case can be better explained from the Hohfeldian Chart.

According to Hohfeld, an eminent jurist, the term 'rights' is mistakenly applied to something that may be a privilege, a power, or immunity in some cases, but is not a right in the strictest sense. The correlative (and equivalent) 'obligation' provides a method for limiting the word 'right' to its specific and most appropriate meaning. Legal rights are always accompanied by legal obligations. This pair of phrases conveys the same legal relationship, but from two different perspectives.

The statutory Right to Information, invoked in this case, is in the nature of "Power" as demonstrated in the Chart of Hohfeld's Analysis of Legal Rights. Susceptibility to someone exercising power is defined as "Liability". When an individual exercises their power to seek information, then the authority with the necessary power is under a legal liability to share the information sought by the individual.

In the same manner, if some authority has been vested with "Immunity" under a statute, then its jural opposite is "Disability" of the other person in exercising powers against that "Authority". 

In other words, "power" is someone's affirmative control over a specific jural relation about another, whereas "immunity" is someone's independence from another's legal power or control over some jural relations.

Therefore, ordinarily, when the statutory power to seek information is invoked, the authority is under a liability to share information. But when any authority is granted Immunity under the same statute, then a person's power to seek information gets disabled.

The inevitable conclusion is that the RTI mechanism no longer remains a tool in the hands of the ordinary citizen to keep an eye on the instrumentalities of governance. It becomes a tool in the hands of political adversaries for some mischievous slugfest, if the highest adjudicating authority within the RTI regime, that is the CIC, observes -

12. However, when a citizen holding the position of Chief Ministership wants to know the degree related information of the Prime Minister, it will be proper to disclose.

Having seen the different facts and facets of this issue, the most pertinent question that comes up in every conscious mind is - is that Right to Information or is that a political slugfest?

PS - In the case in question, the counsel appearing for the RTI seeker argued before the High Court that the challenge by the Gujarat University to the order passed by the CIC was not maintainable since the order was against the PMO.

The question is - if the order of CIC is not complied with, then who is violating it - the PMO or the Gujarat University?

(The author is an advocate in the Supreme Court of India.)

Disclaimer: These are the personal opinions of the author.