The institutions of accountability are increasingly under threat under the incumbent political dispensation. The Supreme Court (SC) lauded the Right to Information Act 2005 as an “integral part of any vibrant democracy” but has refused to come under the ambit of the Information Act. The SC in a recent verdict (Anjali Bhardwaj vs Union of India) recognised the impediments in implementing the RTI Act, but it has not given any direction on resolving these problems.
There are umpteen numbers of judgments declaring that transparency is key to a healthy democracy. In the matter of State of Uttar Pradesh v Raj Narain, a Constitution Bench of this court held that to cover with the veil of secrecy the common routine business is not in the interest of the public. In the oft-quoted case of SP Gupta v President of India and others, a seven-Judge Bench of this court observed that:
“….The concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to the functioning of Government must be rule and secrecy an exception justified only where the strictest requirement of public interest so demands.”
Notwithstanding these bold observations of the court on the primacy of right to information in democracy, the SC thinks that the appointment of judges, their elevation processes and other matters should not be made public and must be wrapped under the cover of secrecy.
A five-judge constitution bench led by Chief Justice of India Ranjan Gogoi said: “In the name of transparency, we can’t destroy the institution.” The SC holds that revealing information on judges’ appointment will compromise judicial independence. Opposing the Delhi High Court verdict that held the CJI’s office is amenable to Right to Information Act (RTI) and bound to disclose information as sought under the law by an applicant, Attorney General KK Venugopal also said that making information on judicial appointments public would affect judicial independence. However, how revelation of information on appointment will obstruct judicial independence is not explained.
Transparency and Secrecy
All other estates of democracy and statutory bodies need independence for proper functioning of democracy like the judiciary. If all of them think that revealing some information on their way of functioning to the public will take away their independence, then the right to information will be reduced to a farce. If we read carefully the number of judgments by the court on right to information matters, the question of drawing any line between transparency and secrecy as observed by the court does not arise.
Apart from non-implementation of the RTI Act and attempts to dilute its provisions by non-appointment of Information Commissioners in the Centre and the States, amendment to the RTI Act is nothing but a systematic assault on transparency – an essential element of democracy. The present government by an attempted amendment to the RTI Act wanted to bring under its control the tenure, salary, perks and other service conditions. Such an amendment attempts to dilute the independence of Central and State information commissioners besides giving undue powers to the government of the day to appoint commissioners with uncertain terms, status and salary.
The Central government wants to consolidate its hold on all other independent statutory bodies by amending Acts and also through money bill. At the beginning of every fiscal year, the Finance Act is enacted to give shape to the fiscal policies of the government. Apart from setting the fiscal agenda, it has now toppled the existing regime of governing the working of 26 different tribunals and other judicial bodies.
Now the controversy of electoral funding through electoral bonds has entered the arena of the SC. The Election Commission submitted to the court that the electoral bond had legalised the anonymity of political donors and the parties receiving contributions. The ECI says that the voters have the right to vote means right to make an informed choice.
The Attorney General argues that the voters need not know the source of political funding. He also said that the corporate houses have the right to make anonymous donations. By saying so the government proposed to give unbridled right to big businesses to use their money to shape the polity to their advantages. The government argued that the electoral bond system will curb black money. Advocate Prashant Bhushan, appearing for the Association of Democratic Reforms, had said the scheme has nothing to do with the effort to curb black money and it facilitates anonymous donations.
Justice Sanjeev Khanna who was part of the SC’s bench that heard the case said that merely knowing KYC (know your customer) information in the bank would not block black money entry into political funding. The opposition has argued in the court that the electoral bond system has benefitted the ruling BJP as the party has received 95% of the donations made through electoral bonds.
The SC in an interim order directed all political parties to furnish receipts of political funding received through electoral bonds and details of the identity of donors in a sealed cover to the Election Commission within May 30. Whatever judgment the apex court passes at the end is a different matter, but for now, the electoral bond system of political funding has benefitted the ruling party. Though the poll panel opposed it from the beginning, the court could not stop it before the parliamentary elections 2019.
Notwithstanding people’s profound concern for transparency and right to information, the wings of democracy in India, be it the legislature, executive or the judiciary, have shown a dark tendency of opaqueness in their functioning. Unless we keep everything open in the sunshine, the viruses and germs that multiply in the black hole will eat up our polity from within.
(The author is a senior journalist from Assam)