How to Dismantle the Right to Information Act?

At RAIOT, we remember the conviction that launched the RTI movement: hum jaanenge, hum jeeyenge; when we know, we survive. We are launching a new series this week, in which we reassess the history of the RTI in Meghalaya in the context of the COVID-19 pandemic and the dilemmas it has posed for governance in both the state and the nation. For the next few weeks, we will tell you stories from 15 years of RTI activism: the successes, the failures, and what we learned through it all. The RTI Act was once called the sunshine law; may it serve now to illuminate these dark times. Raiot Collective 

On April 1 2020, Sri Harsha Kandukuri, a law student, filed a Right to Information petition with the Prime Minister’s Office to enquire into the creation and operation of the then newly-formed PM Cares Fund. Under the RTI Act, the PMO was obliged to respond within a month, and when it did not do so, Kandukuri appealed. Finally, on May 29, the PMO denied the petition by arguing that the Fund was not a “public authority” under the law, despite the fact that its chief trustee is the Prime Minister of India. The government has also hastily and extensively amended existing laws to facilitate contributing: donations can be written off for income tax purposes, they count against corporate social responsibility obligations, and they are exempt from the FCRA— a law that this government has used with devastating effect against organizations such as Greenpeace and Amnesty. Russian arms dealers, meanwhile, have “donated” millions of dollars to the Prime Minister with no scrutiny at all.

As a result of these machinations, The PM CARES fund has collected approximately 10,000 crores of “voluntary” public donations in the two months since its inception. The petition, according to Mr Kandukuri, was to clarify a relatively simple question: why did a separate fund need to be created at all, when the Prime Minister’s National Relief Fund already exists? Have we all been “donating” to a personal slush fund?

In some ways, this is hardly surprising. The RTI Act, passed in 2005, was once hailed as the culmination of India’s most successful “grassroots democracy” campaign in the new millennium. RTI activism propelled Arvind Kejriwal to fame and power and led (at least partly) to the public outrage about corruption that brought down the UPA government in 2014. Who doesn’t remember the rousing speeches about government transparency in Mr. Modi’s first national campaign and the promises he made about ending the reign of black money? In late 2016, having unleashed demonetization and the vast suffering it entailed, he revived the slogan again, only to retire it once it became obvious that demonetization had done little to curb corruption and a lot to boost the political fortunes of the BJP in UP’s assembly elections. That was also the first time his government dealt a body-blow to the RTI Act, which had served so well in getting him elected.

Why ignore the law when you can simply change it?

In the aftermath of demonetization, several citizens filed petitions requesting information from the RBI on a variety of matters: why such a radical policy was essential; how it had calculated the cost of scrapping such a large quantity of currency; the process of consultation undertaken in arriving at the decision; whether the policy had been successful even on its own terms. All of them were denied. It was only in February 2019, once the Central Information Commission criticized the RBI’s handling of the matter, that it finally complied with one such petition— filed by Venkatesh Nayak— and released the minutes of the board meeting it had held before approving the government’s decision as well as the recommendations it had made. The findings were damning: the RBI knew, even as it approved demonetization, that it would have no significant impact on black money and counterfeit notes. It also knew that demonetization would devastate the economy.

A few months after this embarrassment, the Modi government attacked the RTI infrastructure even more blatantly: it amended the Act itself. Why ignore the law when you can simply change it? The original law empowered “information commissioners” to decide RTI claims; like election commissioners, these officials were expected to remain independent of the government and serve the public of a functioning democracy rather than the politicians they elected. The amendments, however, grant the central government the power to appoint commissioners and decide their salaries— making them yet another cohort of subservient bureaucrats. To say that this is unconstitutional is, at the very least, uncontroversial— the problem, as ever with this government, is that it hardly matters.

The RTI infrastructure has not lacked for critics. The anthropologist Aradhana Sharma, for instance, argues that it has become a grievance redressal mechanism rather than allowing for the free and fair circulation of necessary information. Threatened by transparency, bureaucrats frequently generate both “formal” files, which record decisions, and “informal” notes that record the justifications behind them, frustrating the spirit if not the letter of the law. The “informal” can evade capture by RTI petitions, and thus the public is often only told what the government has done rather than why— and even that happens months and years after it is too late to reverse or modify such decisions. The RTI process is long, tedious, formidable. RTI activists quickly find themselves buried in paperwork, a delaying (and intimidating) tactic that anyone who has practiced corporate law is intimately familiar with. The citizen imagined by the RTI infrastructure is not a harried human with a job, a family, and a million demands on their time and attention: it is rather the dedicated warrior, with deep pockets and a lifetime to spend pursuing the knowledge that is ostensibly their right. This is, as Professor Sharma writes in her essay, “activist citizenship of a documentary sort,” with all the exclusions and burdens that implies in a country as stratified, as poor, and as illiterate as India.

Professor Sharma argues that the RTI movement in India was as beholden to international institutions and their standards for “global good governance”— by which they meant governance more suited to rapacious market democracy— as it was locally motivated. Institutional transparency was a key metric through which a state’s “democratic” credibility was measured, especially in the early aughts, and back then it was lucrative to be a democracy. By passing the RTI Act, the Indian state signaled to these transnational “development” agencies that it was open for business, which is why Professor Sharma argues that it was a crucial moment in the Indian transition into the neoliberal world order. It is also why, she concludes, the RTI infrastructure ultimately promotes technocracy rather than democracy. Further, by “normalizing statist languages of protest,” the RTI movement potentially crippled more radical approaches to revitalizing our democracy in favor of this polite, even ingratiating, attempt at making India palatable to the World Bank.

This is not an incompetent regime

It no longer pays as well to be a democracy, which is presumably why the current dispensation is busily dismantling the RTI infrastructure. And yet. RTI activism is what we have, and it is a dangerous and occasionally fatal calling. RTI petitions are, like elections, a final and feeble hold on the dream of democracy this nation was founded upon. Despite the creaky infrastructure, the obscurantist process, the routine evasions and arcane legalese, RTI petitions have consistently exhumed secrets that the Indian state would rather remain hidden. It was RTI petitions that provoked the Rafale scandal and RTI petitions that demonstrated the truly epic scale of the electoral bonds scam, a saga so fiendish and so byzantine that it ought to put paid to the notion that incompetence is the reason for this government’s utter failure at managing the pandemic.

Writing Right to Information application
2006, Mawsynram, Khasi Hills, Meghalaya

This is not an incompetent regime. It is extremely competent at mounting marketing campaigns, building shrines to itself, suspending labor laws, arresting activists and students, demonizing minorities, and— above all— at raising money from shadowy sources towards dubious ends. It failed because there was nothing to be gained from protecting the lives and livelihoods of people it regards as disposable, and because there were profits to be had in sacrificing them. The RTI process will not help us avert any tragedies. It was not designed to. We will not find out why millions of people starved while there was wheat rotting in the nation’s granaries in time to distribute the grain; we will not prevent explosions and gas leaks in chemical factories from killing people; we will not even get the trains to run on time or go to the right places. All we can do is document what happens in a time of tyrants. If we protect it, if we fight for this last semblance of our republic, the RTI infrastructure will allow us to conserve our history—to record the truth and not the self-serving fantasies that people like the Solicitor General of India would have us believe. And then we can teach our children and our students to expect more: to demand their rights, not beg for them.

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Deepika Chaturvedi Written by:

Deepika Chaturvedi is an independent researcher

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