Transparency Law | CIC’s evolution from defender to bystander

The Central Information Commission’s job is to strike a balance between people’s right to know and the State’s legitimate need for limited secrecy

October 12 (today) marks 18 years since the Central Information Commission (CIC) was set up. One would think that 18 years is a good enough time to shine the light of transparency, but with more than 300,000 complaints pending and six commissions headless, it’s a sorry state of affairs.

Over the past few years, the CIC has seen a significant shift in its role within India’s transparency framework. This apex body responsible for adjudicating Right to Information (RTI) appeals and complaints once stood as a staunch defender of the people’s right to know. 

It issued orders for the disclosure of critical public interest information, such as Prime Minister Narendra Modi’s educational credentials. It even aimed to enhance transparency in public life by declaring, in June 2013, that all political parties should fall under the purview of the RTI Act (though this directive is currently pending Supreme Court adjudication).

However, in recent years, the CIC’s commitment to fostering a culture of free flow of information has waned. It has, at times, acted as a hindrance rather than a facilitator of information dissemination, even when they were essential for public interest.

The CIC, designed to be an independent body, now appears to have been repurposed to bog down citizens seeking accountability. A quick look at recently retired Chief Information Commissioner Yashvardhan Kumar Sinha’s tenure illustrates this concerning trend.

Sinha served as the chief of the CIC until October 3. It is perplexing that despite Sinha handling nearly 14,000 cases over his four-year and 9-month tenure at the CIC (two years as information commissioner and the rest as chief information commissioner), he failed to issue any significant orders compelling the government to release information of critical public interest.

For instance, in August 2021, Sinha presided over a set of seven cases challenging the Union health ministry’s refusal to disclose information concerning various government-appointed committees overseeing Covid-19 pandemic-related matters. The requests pertained to vaccine research, development, approval, foreign aid received by India, NEGVAC meetings, and scientific advice, among other things. The ministry cited 'national interest’ to withhold most of this information.

Surprisingly, despite finding that the ministry’s rejection was “untenable” due to it being inadequately justified, Sinha declined to order the disclosure of information. He asserted that all the requested information was already publicly available — a claim unsupported by factual evidence.

A separate case seeking disclosures related to the nationwide lockdown was also defeated at Sinha’s court. The matter was remanded back to the ministry accused of concealing information for passing a “detailed order” and subsequently, a fresh challenge was not allowed to be admitted — a deliberate disregard for the fundamental concept in law which states that “no one can be a judge in their own cause”.

With these actions, Sinha set a troubling precedent for other information commissioners to follow.

Other incidents show the crumbling of this once-revered institution. While the RTI Act places the onus of justifying the rejection of information requests on the Public Information Officer (PIO), it is now common for information commissioners to actively seek reasons to uphold denials, even when the PIO’s justifications fall short. This gives the impression that the commission is now more executive-minded than the executive. 

Appellants often lament that information commissioners do not provide a fair hearing, frequently interrupting or cutting them short during arguments.

There now appears to be a facade of impartiality and due diligence. Today, it is hard to find friends of transparency in the transparency commission.

The CIC’s way of functioning is all the more concerning given the recent amendments to the RTI Act. Via the Digital Personal Data Protection Act of 2023, the Union government has increased secrecy under the pretext of privacy. In a functioning democracy, blanket secrecy cannot prevail. It is for this reason that even intelligence agencies are not exempt from the RTI Act when allegations of corruption and human rights violations are at play.

The CIC’s job is to strike a balance between people’s right to know and the State’s legitimate need for limited secrecy. Unfortunately, today, information commissioners prioritise secrecy, cautious not to inconvenience the executive, even slightly, showcasing a lack of resolve.

Following this amendment, the CIC will face a State that seeks greater secrecy, requiring it to define secrecy, confidentiality, and privacy more clearly. It must read statutes in a manner that would advance transparency, not hinder it. However, its track record in the recent past does not inspire confidence.

Naturally, more of its decisions would likely be challenged at the higher courts. The onus will be on the courts to take note of information commissioners’ deliberate non-application of mind and intervene when necessary. Lawyers should assist citizens willing to take their cases to higher courts. A collective effort is essential to preserve what little remains of India’s transparency law.

(Saurav Das is a Delhi-based investigative journalist. X: @OfficialSauravD)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.