RTI empowers citizens against state excesses, brings about change: Justice AP Shah

Bar & Bench March 5 2018

Shruti Mahajan

On March 3, the Moneylife Foundation organized a talk, followed by an interactive session with former Chief Justice of the Madras and Delhi High Courts Justice AP Shah on the Importance of Transparency in a Democracy.

Justice Shah, who was the Chairman of the 20th Law Commission of India, delivered his inaugural lecture titled Transparency and Empowerment in Decision Making are pillars of a Healthy Democracy, at the Symbiosis Vishwabhavan Auditorium, Pune. The session was moderated by former Central Information Commissioner, Shailesh Gandhi.

In his talk, Justice Shah highlighted that the right of people to access information in a democracy is an ideal that has been advocated from the beginning of democracy as we know it. He recalled that it was Aeschines in 330 BC who spoke of the right of the people to check public records. In more modern times, former US president James Madison spoke of the need for people to arm themselves with the power that knowledge gives. Justice Shah described the Right to Information as “the cornerstone of a democracy and the founding ideal which gives priority to transparency over secrecy.”

Justice Shah cited the report on Constitutional Right to Information by Roy Peled and Yoram Rabin, published in the Columbia Human Rights Law Review, to explain the importance of RTI and access to information in the Indian context. The study mentions four justifications for the need of this Constitutional right:

The first is the Political-Democratic justification, which underlines the importance of participatory and Constitutional democracy. Justice Shah mentioned the debate around Aadhaar to drive home this justification and cited examples in which RTIs filed have helped unearth and reveal the flaws in the scheme and the exaggerated claims of savings due to Aadhaar made by the government.

Secondly, he spoke of Instrumental Justification. Justice Shah used the Right to education in the Indian context to further this point, remarking,

“[The] Right to education creates a refined citizenry and it is the right to information which gives this citizenry the power to hold their government to account.”

Thirdly, he dealt with Proprietary Justification, which says that information held by the government and its various arms is, in a democracy, public property.

However, Justice Shah said that the current scenario is not very different from colonial times. He said that there still exists a culture of unnecessary secrecy in Indian bureaucracy, which is a symbol of a colonial hangover. Justice Shah also highlighted the extent of this trend of secrecy by citing a study which indicates that nearly 70% of the information sought through RTI in India is information that should have already been in the public domain.

Fourthly, he spoke of the Oversight Justification or transparency, which seeks to promote efficient and transparent governance. According to Justice Shah, this is the most valid of justifications in India. Justice Shah indicated that he views the purpose for access to information as “a means to retrace the balance of power between the citizens and the state and to promote efficient transparent governance.”

In addition to these four justifications, Justice Shah added a fifth justification of his own which is “to promote citizen participation”. He remarked,

Granting the right to information permanently changes the relationship between citizens and the government, especially since [it] encourages people to actively participate in governance and holding its govt. to account.”

Justice Shah also stressed on the importance of an open government system where, he said, there exists “an inseparable connection between the interests of the citizens in how a country is governed and the right to access information”.

Further, he underscored the absence of Right to Information from the Constitution, but said that there are “ideals imputed in our Constitution which can be interpreted by the Supreme Court to derive Right to Information from other fundamental rights”.

He also delved into how the Supreme Court pronouncements on Right to Information alone were not enough. He opined that there was a need for legislative backing, which came about only in 2005, through the RTI Act. The biggest effect of this right was seen in combating corruption, when the RTI led to unearthing scams like the Adarsh housing Scam, the 2G scam, CWG diversion of funds scam and even the Red Cross society scam.

Moreover, he indicated that while the RTI is a tool in the hands of the people of India to be involved in the democracy beyond just casting of votes, there are a number of challenges before effective RTI. Exercise of RTI has seen resistance from the government, regardless of who has been in power. He acknowledged that there have been attempts made to dilute the RTI, by labeling applications as frivolous.

Another challenge before effective RTI and transparency is bureaucratic apathy and lack of proper means of record-keeping. Justice Shah pointed out that when it comes to information commissions at both Central and state levels, there is a lack of transparency in appointments, and also a lot of important posts in these commissions go vacant.

Further, one of the biggest challenges is the threats faced by RTI activists and lack of protection for RTI users and whistleblowers – a problem which is in dire need of an operational legislation.

Justice Shah further spoke of the judiciary’s resistance to transparency, noting that the same was visible in the opacity of the Collegium system. He spoke of how the general public do not know the basis on which appointments to judgeship are made or the grounds for rejection thereof.

These thoughts resonated with the audience, who broke into applause when Justice Shah said that the judiciary, as the first among equals, should lead from the front line when it comes to transparency.

In the last segment of his lecture, Justice Shah said that free speech in India is in danger. He said,

"[the] dissent in University space and pop culture are curbed, journalists are shot dead from a point-blank range for holding certain ideologies and filmmakers are asked to make cuts in their work despite CBFC clearance."

He remarked that we are living in an increasingly intolerant society.

Justice Shah held the media accountable for this state of affairs, saying that the media is responsible for forming public opinion. However, he pointed out that a large section of the media is acting like a “propaganda machine”. He remarked that this section of media, through its “biased and one-sided reporting is aiding to the restriction of free speech". Further, he remarked,

"We are today living in the age of propaganda and proactive false information and half-truths…Unless we, as ordinary citizens, rise up and demand accountability from the government, there will be no change in the situation."

In the interactive session that followed, Justice Shah advised RTI users and activists not to lose hope and not to let the resistance from the government bring them down.