India’s Right to Information (RTI) law, originally passed in 2005, gives all citizens the right to submit a request for information (in person, in writing, or online) to any public authority at the national, state, or local level; the request may concern any information related to the functioning and affairs of that authority. If the request is denied or unduly delayed, or if the information provided is incomplete, applicants may appeal, first to a designated Public Information Officer at the public authority to which the request was made, and then to special bodies called Information Commissions, established at both the state and national levels. These Information Commissions are designed to be autonomous and have the power not only to order timely production of requested information, but to levy penalties on public authorities for noncompliance and to award compensation to citizens whose requests were wrongfully denied or ignored.
India’s RTI law—which is one of the strongest such laws in the world, used by an estimated 4-6 million people annually—has proven to be a particularly effective anti-corruption tool. There are hundreds of examples of ordinary citizens using the RTI law to expose local government corruption, and the law has also unearthed some major national-level corruption scams. For instance, an RTI request filed by a civil society activist group revealed that a housing society on prime land in South Bombay, meant for war widows, was wrongfully given out to politicians, bureaucrats, and military officers; this so-called “Adarsh Society Scam” led to the eventual resignation of the Chief Minister, as well as criminal charges against several officials. Another civil society group used the RTI law to expose the “Commonwealth Games Scam,” in which funds associated with the Commonwealth Games in Delhi, earmarked for the social welfare of marginalized communities, had been wrongfully diverted. The exposure of this malfeasance led to an official investigation that ultimately resulted in the arrest and suspension of the responsible minister.
This past July, the Indian parliament amended the RTI law for the first time, despite resounding opposition. While there are indeed aspects of the RTI law’s implementation that need to be addressed—including the numerous vacancies at Information Commissioner posts, which has led to long delays and backlogs in RTI appeals—the amendments do not address any of these genuine pressing issues. Instead, the amendments focused on the appointment, tenure, and salary of the Information Commissioners. Proponents of the changes claimed that these amendments were minor technical fixes, designed to streamline the appeals process and improve functioning. In fact, the amendments pose a serious threat to the autonomy of the Information Commissions, and thus to the efficacy of the RTI law in exposing wrongdoing that could embarrass or incriminate powerful political figures and their cronies.
Under the original law, the Information Commissioners at the national level were appointed by the President on the recommendation of a committee comprised of the Prime Minister, the leader of the opposition, and a Central Government Cabinet Minister nominated by the Prime Minister; there was a parallel structure at the state level. This combination of ruling and opposition members in the committee was a built-in check and balance. Furthermore, Commissioners’ tenure was fixed at five years, and their salaries were pegged to the salaries of the Election Commissioners, a constitutional authority. Under the new amendments, however, the Central Government has furthered its powers concerning commissioners. In particular, the Central Government has given itself two key additional powers. Instead of a fixed tenure of five years for the Information Commissioners, their tenure will now be for such term as may be prescribed by the Central Government. And instead of the Information Commissioners’ salaries being pegged to that of the Election Commissioners, their salaries are now set per the prescription of the Central Government. After the passage of the amendments, the government promulgated rules to operationalize these amendments; these rules reduce the Commissioners’ tenure to three years and eliminate the parity of salary between the Chief Information Commissioner (at the Central Government level) and the Chief State Information Commissioner (at the State Government level).
These changes, though advertised by supporters as “technical,” are in fact major substantive changes that threaten the efficacy of the RTI law. As adjudicative bodies, the Information Commissions must be, and must seem to be, independent. But the amendments and the implementing rules are likely to politicize the Information Commissions, making them more solicitous of the ruling party. This is also likely to worsen the trend of commissioners being appointed from a pool of retiring bureaucrats rather than persons of eminence in public life. This, in turn, is likely to have downstream effects on the behavior of the Public Information Officers tasked with replying to RTI applications. In cases like the Adarsh Society Scam and the Commonwealth Games Scam, the information requested, and ultimately released, implicated powerful members of the ruling party in unlawful activities; if the Information Commissions in those cases had been susceptible to influence by the government leadership, it is much more likely that the information would never have been released.