Right to Information
Passing of Right to Information is a milestone in the Indian Democracy, which proved its significance since its enactment. It strengthens democracy with its emphasis on ‘openness’, ‘transparency’ and ‘accountability’. There is universal recognition that the people’s right to information is the foundation of a healthy and functioning democracy. Experience tells us that the more the citizen’s know, the better prepared and more motivated they are to effectively participate in the decisions that affect their lives and property, and their physical and economic well being. The peoples ‘right to official information’ is an indispensible element in a functioning Democracy. The free flow of information about the government paves the way for debate in public policy and fosters accountability in government.
Information Law in India:
Many civil society groups (MKKS in Rajasthan) and the apex (Supreme) Court in India have been arguing in favour of people’s right to Information with a view to empowering people and enriching Indian Democracy.
The Supreme Court of India, in the landmark case of State of U.P. vs. Raj Narain (1975) observed that the right to information is implied in the Right to freedom of speech and expression under Article 19 (1) and Right to Life guaranteed under Article 21 of the Constitution.
After a long struggle and discussion ultimately ‘The Right to Information (RTI) Act’ was enacted by the Parliament of India to provide for setting out the practical regime of right to information for citizens. It was passed by Parliament on 15 June 2005 and came fully into force on 12 October 2005. The RTI Act mandates timely response to citizen requests for government information. It applies to all States and Union Territories of India, except the State of Jammu and Kashmir, which is covered under a State-level law.
Prior to the Act being passed by the Parliament, the RTI Laws were first successfully enacted by the state governments of Tamil Nadu (1997), Goa (1997), Rajasthan (2000), Karnataka (2000), Delhi (2001), Maharashtra (2002), Madhya Pradesh (2003), Assam (2002) and Jammu and Kashmir (2004). Some of these State level enactments have been widely used. While the Delhi RTI Act is still in force, Jammu & Kashmir has its own Right to Information Act of 2009, the successor to the repealed J&K Right to Information Act, 2004 and its 2008 amendment.
At the national level, given the experience of state governments in passing practicable legislation, the Central Government appointed a working group under H.D. Shourie to draft legislation. The Shourie draft, in an extremely diluted form, became the basis for the Freedom of Information Bill, 2000 which eventually became law under the Freedom of Information (Fol) Act, 2002. The FOI Act, however, never came into effective force as it was severely criticised for permitting too many exemptions, not only under the standard grounds of national security and sovereignty, but also for requests that would involve 'disproportionate diversion of the resources of a public authority'. Further, there was no upper limit on the charges that could be levied and there were no penalties for not complying with a request for information.
The failure of FOI Act led to sustained pressure for a better National RTI enactment. The first draft of the Right to Information Bill was presented to Parliament on 22 December 2004. Subsequently, more than a hundred amendments to the draft Bill were made before the bill was finally passed. The Law is applicable to all constitutional authorities, including the executive, legislature and judiciary; any institution or body established or constituted by an act of Parliament or a state legislature.
The Act relaxes the Official Secrets Act of 1889 which was amended in 1923 and various other special laws that restricted information disclosure in India. In other words, the Act explicitly overrides the Official Secrets Act and other laws in force as on 15 June 2005 to the extent of any inconsistency.
The preamble to the Act affirms that ‘Democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed.’
· Under the provisions of the Act, any citizen (excluding the citizens within J&K) may request information from a 'public authority' (a body of Government or 'instrumentality of State') which is required to reply expeditiously or within thirty days.
· The Act also requires every public authority to computerise their records for wide dissemination and to proactively publish certain categories of information so that the citizens need minimum recourse to request for information formally.
The RTI Act specifies that citizens have a right to: request any information (as defined); take copies of documents; inspect documents, works and records; take certified samples of materials of work; and obtain information in the form of printouts, diskettes, floppies, tapes, video cassettes or in any other electronic mode.
Coverage:
Bodies or authorities established or constituted by order or notification of appropriate government including bodies "owned, controlled or substantially financed" by government, or non-Government organizations "substantially financed, directly or indirectly by funds" provided by the government are also covered by the Law. While private bodies are not within the Act's ambit directly, in a landmark decision of 30 November 2006 (Sarbajit Roy versus DERC) the Central Information Commission reaffirmed that privatised public utility companies continue to be within the RTI Act their privatisation notwithstanding.
Ø Covers: Central, state and local governments
· All bodies owned, controlled or substantially financed by Government
· NGO’s substantially or indirectly by funds provided by the appropriate Government
· privatised public utility companies
Ø Covers the executive, judiciary and legislature
Procedure:
Under the Act, all authorities covered must appoint their Public Information Officer (PIO). When any person submits a request to the PIO for information in writing, it is the PIO's obligation to provide information. Further, if the request pertains to another public authority (in whole or part) it is the PIO's responsibility to transfer/forward the concerned portions of the request to a PIO of the other authority within five days. In addition, every public authority is required to designate Assistant Public Information Officers (APIOs) to receive RTI requests and appeals for forwarding to the PIOs of their public authority.
The RTI Act specifies that a citizen making the request is not obliged to disclose any information except his/her name and contact particulars. The Act also specifies time limits for replying to the request. If the request has been made to the PIO, the reply is to be given within 30 days of receipt. In the case of APIO, the reply is to be given within 35 days of receipt. If the request is transferred by to PIO to another public authority the time allowed to reply is computed from the day on which it is received by the PIO of the transferee authority.
In case of information concerning corruption and Human Rights violations by scheduled Security agencies, the time limit is 45 days but with the prior approval of the Central Information Commission. However, if life or liberty of any person is involved, the PIO is expected to reply within 48 hours.
The information under RTI has to be paid for except for Below Poverty Level Card (BPL Card) holders. Hence, the reply of the PIO is necessarily limited to either denying the request (in whole or part) and/ or providing a computation of further fees. The time between the reply of the PIO and the time taken to deposit the further fees for information is excluded from the time allowed. If information is not provided within the time limit, it is treated as deemed refusal. Refusal with or without reasons may be ground for appeal or complaint. Further, information not provided in the times prescribed is to be provided free of charge.
Exemption:
Considering that providing each and every information asked for under the Act may severely jeopardise national interest, prejudicially affects the sovereignty and integrity of India, some exemptions to disclosure are provided for in the Act. Information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court; information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature; information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party.
Information available to a person in his fiduciary relationship; information received in confidence from foreign Government; information which would impede the process of investigation or apprehension or prosecution of offenders; and cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers are some of the exemptions. Notwithstanding any of these exemptions, a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.
The officer who is the head of all the information under the Act is Chief Information Commissioner (CIC). At the end of year CIC is required to present a report which contains: the number of requests made to each public authority; the number of decisions when applicants were not given permission to access to the documents which they request, the provisions of the Act under which these decisions were made and the number of times such provisions were filed; details of disciplinary action taken against any officer in respect of the administration of the Act; and the amount of charges collected by each public authority under the Act.
Concluding Observations:
The RTI Act, prima facie, surely marks a major step forward toward openness and transparency in governance. But there are many challenges:
· The Bureaucratic culture of ‘secrecy’ is not easy to change. Structurally, procedurally and behaviorally, bureaucracy in India has to culturally prepare itself to accept ‘openness’ as a criterion of good governance.
· The politician in India, often in league with the bureaucracy, has to accept the democracy means people’s rule, not politician’s rule. It is no use blaming the bureaucracy all the time; our politicians today have often been found lacking in ‘big visions’.
· Currently the trend has been toward ‘privatization’ and ‘outsourcing’ of many erstwhile government activities, shrinking, in the process, the ‘spheres’ of public administration. Under the circumstances, the ambit of the RTI law might have to be widened to bring within its purview many organizations working for the public authorities in different garbs.
It has been argued that the ‘open government’ idea has often been broadened in terms of the prevailing consensus that looks at secrecy and democracy as two sides of the same coin. Government would like to keep certain things ‘confidential’; but citizenry demand information about how they are governed. Ultimately, a sensible and genuine democracy has to strike a balance somewhere and find out a golden mean.
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