Will RTI Act become a Toothless Tiger?

RTI Act was passed in the year 2005. Consequent to this, the citizens of the country have been vested with the power to obtain any information related to governance and exercise their fundamental rights as assured by the constitution with regard to right to information.

During the judicial proceedings on the Rafale deal under a public interest litigation petition when the central government stated that disclosure of certain key documents related to the negotiation of Rafale deal would result into disclosure of sensitive information on national security and would also result in friction between the Indo-France friendly relationship, the Honorable Supreme Court rejected the plea of the central government.

In this connection the court held that it is obligatory on the part of the government to disclose the information under the RTI Act as it was primarily a commercial transaction and the petitioners have alleged that certain irregularities have taken place in the negotiation of the deal, even though such deal relates to national security and impacts the bilateral relations between Bharat and France. It may also be interesting to note that in this instance case when the government contended that the petitioners had obtained the documents related to this Rafale deal in an unauthorized manner (i.e., stole those documents), the court rejected the contention of the government.    

In November 2016, the government demonetized Rs. 500 and Rs. 1000 currency notes. When petition was filed under RTI Act to ascertain whether RBI had given their approval and consent for the demonetization move of the government, it was revealed that in February 2019, even though RBI had given their approval, they did not agree with the government’s view that such demonetization will result in unearthing huge black money.  

Notices have been served to Reserve bank of India based on a petition filed under RTI Act to disclose the list of loan defaulters of the scheduled commercial banks. In November 2018, notices have been served to PMO under the RTI Act to disclose the details of information submitted by the then RBI Governor Dr. Raghuram Rajan in February 2015 with regard to the high profile cases of NPA frauds urging the government to work in coordination with RBI to book the culprits.

In October 2018, notices have been served to the special task force to disclose the results of their investigation with regard to unearthing the black money stashed abroad. 

The above developments indicate that the people of the nation have gained opportunity to make efforts to obtain data/ information from various ministries/ departments of the government on issues related to governance. RTI Act is therefore, an important and powerful tool to force the government to disclose information when such information is hidden from the public domain by the government in order to save itself from the embarrassment caused by mis-governance or deficiencies in good governance.

RTI Act also serves as a useful weapon to ascertain the authenticity and reliability of information when the governments make statements/ announcement or publicity from political angle and make the governments to behave in a much responsible manner.   

RTI Act and Political Parties

RTI Act also gives right to the people to ascertain the factual position of the information submitted by the people’s representatives while contesting the elections in filing their nominations to the election commission. Several instances of false declarations related to the educational qualifications of the contestants in the elections have come to light, thanks to RTI Act. 

Political Parties are Public Authorities?

In June, 2013, a landmark ruling by the authority under the RTI Act declared that all political parties will come under the purview of RTI Act as they are public authorities. Therefore, they have to disclose the information of the political donations received with the details of sources/ donors in a transparent manner.

Under the RTI Act, a public authority is one that is substantially financed, or directly or indirectly funded by the appropriate government. Since political parties get income tax exemptions, concessions and benefits in allotment of land for construction of their party offices etc., the RTI authority gave a ruling that political parties come under the definition of public authority. However, the election commission differed with the RTI authority and refused to entertain any requests for disclosure of the details of sources of donations received by political parties. 

Electoral Bonds

In order to come out from the purview of RTI Act and escape public scrutiny of the donations received, in 2018 budget electoral bonds scheme was introduced by the government. These series of events have led to social activists approaching Supreme Court contesting the stand taken by election commission and government that prevents the general public from knowing the details of sources of donations received by political parties.

As an interim measure the Supreme Court has asked all political parties, who have received donations, to submit detailed particulars of donors and full particulars of the electoral bond to the Election Commission of India in sealed covers by May 30, 2019. The judicial proceedings are in progress and the final verdict of the Supreme Court is awaited in this regard. 

In March 2018, the government amended the FCRA (Foreign Contribution Regulation Act) Act, 2010 and exempted the scrutiny of all foreign donations received by political parties since 1976. Section 182 of the Companies Act had a stipulation that a company can donate only up to 7.5% of its average profit of the last three years and all such donations made by the company to be disclosed along with the details of the beneficiary political parties.

However, the electoral bonds scheme introduced in 2017 budget enables the corporate to give donations to political parties without any cap on the amount and also the requirement that such corporate should have existed for the last three years on a profit making basis is totally dispensed with. This has now given scope for loss making companies or even shell companies to give donations to political parties without any ceiling on such donations.

The electoral bonds also will not bear the name of the donor, nor can the beneficiary political party details be revealed. Under section 13A of the Income Tax Act, the companies contributing to the electoral bonds are not even required to keep records of such donations.  Representation of the People Act, 1951 has also been amended to exempt political parties from informing the Election Commission of any amount received above Rs. 2000 if such amounts are received through electoral bonds. 

Constitutional Authority Vs Statutory Authority 

When the RTI Act was originally passed in 2005 the appointment, tenure and remuneration of the information commissioners at the centre and states have been treated at par with election commissioners of the centre and states respectively. This ensures a fixed tenure of 5 years appointment to information commissioners.

On 26th July, 2019, the parliament amended the RTI Act, 2005 and gave itself powers to determine the tenure of appointment of information commissioners for each appointment on case to case basis as well as powers to reduce the tenure subsequently. The government tried to justify its move by saying that the election commission is a constitutional body whereas the information commission is a statutory body. Social activists have approached the judiciary to challenge the stand taken by the parliament in this regard. 

The Ball is in Judiciary’s Court 

Courts have held in the past on several occasions that right to information is a fundamental right of the citizens as per the constitution. There is no doubt that the recent amendments to RTI Act and several other acts like- Representation of People Act, Companies Act, Income tax Act, Foreign Contribution Regulation Act and introduction of electoral bonds have resulted in making the RTI Act ineffective and also provide a protective shield to political parties from scrutiny and disclosure of donations received by them.

On the other hand, it leads to routing of black money in Bharat and abroad to political parties unabated and unaccountable. In democracy, citizens have two important weapons in the form of vote and access to information under RTI Act.

While voting right is exercised once in five years, RTI Act enables the citizens to seek information on governance related issues on an ongoing basis and ensure greater transparency and accountability of the government. One has to wait and see whether the honorable judiciary will come to the rescue of the citizens to annul the recent legislative measures made by the parliament or accord legitimacy to those legislative measures and leave the citizens at the mercy of the legislature. 


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About the Author

B.N.V. Parthasarathi
Ex Senior Banker, Management and Financial Consultant, Visiting faculty at premier B Schools and Universities. E mail- [email protected]