Delhi HC’s order weakens transparency law; suo motu disclosure by govt, penalties can help check motivated requests
For instance, if the relevant information on transfer policies and transfers are to be made public, similar information could be shared on appointments, discretionary or otherwise.
That the Right to Information (RTI) Act can be misused is well-known—think of the hundreds of frivolous RTI applications and RTI being used as a tool of blackmail in cases where a government official may have exercised discretion. But, the transparency law, for the greater part, has proved to be one of the most effective tools to hold all levels of the government accountable. Therefore, when any pillar of the state suggests broad-sweep changes to the law or its implementation against the backdrop of misuse, it is important to weigh these against the harm such circumscribing could do.
So, the Delhi High Court’s recent order, which says that the Court holds the opinion that “whenever information is sought under the RTI Act, disclosure of an interest in the information sought would be necessary to establish the bonafides of the applicant”, needs to be read against the implications it could have for transparency. The particulars of the case in which this order was passed may make the direction seem merited; the matter relates to an appeal against the non-disclosure of certain information sought by the applicant, pertaining to the selection of candidates for appointment to posts at the Rashtrapati Bhavan, without disclosing that the applicant’s daughter had been a contender for the jobs.
Some of the nature of the information sought, the court ruled, was invasive of individuals’ privacy, which is proscribed under the Right to Information law.
However, if the Court’s order were to be implemented, it would vitiate against the very spirit of the transparency law. Imagine if an applicant suspected graft or nepotism in a matter of government operation, and were to seek information that could help bring this to light while having to disclose that the purpose was to expose the corruption! Would such information then be readily shared? And what happens to the applicants’ security in such an instance?
While a document maintained for the National Campaign for the People’s Right to Information lists 469 RTI-related attacks, based on media reports, till October 2020, the Commonwealth Human Rights Initiative lists 89 murders and 172 assaults. Even if there were no assaults or any other attack on information-seekers in such a case, this would certainly alert the relevant personnel or department to act to cover up the matter.
It is also important to keep in mind that Section 4 of the transparency law calls for proactive disclosure of information by the government to ensure that the need for applications gets reduced. If this were to be done effectively, the need for dealing with a massive volume of disclosure requests—including those that could be motivated by private interest—could be obviated. A 2013 circular of the department of personnel and training notes that the suo motu disclosure of information has not been effective; matters may have improved since, but some of the guidelines laid down by the circular could be built upon in the interest of transparency.
For instance, if the relevant information on transfer policies and transfers are to be made public, similar information could be shared on appointments, discretionary or otherwise. To be sure, some matters will always involve subjectivity and discretion, but transparency on a broadly acceptable principle behind a subjective call can always be shared with the public to ensure that decisions don’t come under the shadow of claims of nepotism or corruption.