THE RIGHT TO INFORMATION ACT

Background

Access to government records and information is an essential requirement for modern government. Access facilitates public knowledge and discussion. It provides an important guard against abuses, mismanagement and corruption. It can also be beneficial to governments themselves – openness and transparency in the decision making process can assist in developing citizen trust in government actions and maintaining a civil and democratic society.

Governments around the world are increasingly making more information about their activities available. Over fifty countries around the world have now adopted comprehensive Freedom of Information Acts to facilitate access to records held by government bodies. Although freedom of information laws have existed since 1776, when Sweden passed its Freedom of the Press Act, the last decade has seen an unprecedented number of countries adopting access to information legislation. The growth in transparency is in response to demands by civil society organizations, the media and international lenders. While the vast majority of countries that have adopted laws are northern, much of the rest of the world is also moving in the same direction. In Asia, nearly a dozen countries have either adopted laws or are on the way to do so. In South and Central America and the Caribbean, half a dozen countries have adopted laws and nearly a dozen more are currently considering them. Openness is starting to emerge in Africa. South Africa enacted a wide reaching law in 2001 and many countries in southern and central Africa, mostly members of the Commonwealth, are following its lead. Ghana and Kenya are likely to enact legislation in the near future. In addition, many countries have also adopted other laws that can provide for limited access including data protection laws that allow individuals to access their own records held by government agencies and private organizations, specific statutes that give rights of access in certain areas such as health or the environment, and executive orders or codes of practices. Besides India, the other major countries which have enacted the Right to Information Act are USA, UK, Japan, South Africa, Pakistan, Canada, Hong Kong, Ireland, France, Greece, etc.

Factors for adoption

There have been a variety of internal and external pressures on governments to adopt Freedom Of Information (FOI) laws. In most countries, civil society groups such as the press and environmental groups have played a key role in the promotion and adoption of laws. International organizations have demanded improvements. Finally governments themselves have recognized the use of FOI to modernize.

• International pressure. The international community has been influential in promoting access. International bodies such as the Commonwealth, Council of Europe and the Organization of American States have drafted guidelines or model legislation and the Council of Europe decided in September 2003 to develop the first international treaty on access. The World Bank, the International Monetary Fund and others have pressed countries to adopt laws to reduce corruption and to make financial systems more accountable. The Aarhus Convention on access to environmental information promoted by the UN has been signed by dozens of countries who are now committed to adopt laws on access to environmental information. In Bosnia, the international organizations running the country ordered the creation of a law.
• Modernization and the Information Society. The expansion of the Internet into everyday usage has increased demand for more information by the public, businesses and civil society groups. Inside governments, the need to modernize record systems and the move towards e-government has created an internal constituency that is promoting the dissemination of information as a goal in itself. In Slovenia, the Ministry for the Information Society was the leading voice for the successful adoption of the law.
• Constitutional rights. The transition to democracy for most countries has led to the recognition of FOI as a human right. Almost all newly developed or modified constitutions include a right to access information from government bodies. Over forty countries now have constitutional provisions on access. They also often include specific provisions on a right to information on the environment and the right of individuals to access their personal files.
• Corruption and Scandals. Often, crises brought about by a lack of transparency have led to the adoption of laws to prevent future problems. Anticorruption campaigns have been highly successful in transitional countries attempting to change their cultures. In long established democracies such as Ireland, Japan and the UK, laws were finally adopted as a result of sustained campaigns by civil society and political scandals relating to health and environment.

Development of the movement in india

Right to Information in India took the form of a movement with the struggle of Mazdoor Kisan Shakti Sangathan ( MKSS) to bring in transparency in village accounts. The campaign for right to information grew out of the demand for minimum wages in rural India. The ghost entries in the muster rolls and rampant corruption in the system prompted MKSS to demand information recorded in official files. The movement soon spread across India. From a very modest beginning in the villages of Rajasthan, the success of MKSS has been a source of inspiration for activists in India and throughout the world. It led to the genesis of a broader discourse on the right to information in India.

In 1993, a draft RTI law was proposed by the Consumer Education and Research Council, Ahmedabad (CERC). In 1996, the Press Council of India headed by Justice P B Sawant presented a draft model law on the right to information to the Government of India. The draft model law was later updated and renamed the PCI-NIRD Freedom of Information Bill 1997. Unfortunately, none of the draft laws were seriously considered by the Government.

Meanwhile, MKSS's advocacy gave rise to the National Campaign on People's Right to Information (NCPRI), which was formed to advocate the right to information at the national level. Constituted in 1996 in New Delhi, the NCPRI aims to provide active support to grassroots struggles for the right to information and to lobby government to enact and implement effective access to information legislation.

In 1997 efforts to legislate for the right to information, at both the State and National levels, quickened. A working group under the chairmanship of Mr. H D Shourie (the Shourie Committee) was set up by the Central Government and given the mandate to prepare draft legislation on freedom of information. The Shourie Committee's Report and draft law were published in 1997.

The Shourie Committee draft law passed through two successive governments, but was never introduced in Parliament. In the interim, in 1999 Mr Ram Jethmalani, then Union Minister for Urban Development, issued an administrative order enabling citizens to inspect and receive photocopies of files in his Ministry. Disappointingly, the Cabinet Secretary did not permit this order to come into effect.

Eventually, the Shourie Committee draft law was reworked into the Freedom of Information Bill 2000. The national Freedom of Information Bill 2000 was introduced in Parliament in 2002. It was passed in December 2002 and received Presidential assent on January 2003, as the Freedom of Information Act 2002. Unfortunately, a date for the Bill coming into force was never notified, so it never actually came into operation.

In 2004, a public interest litigation case being pursued by Advocate Prashant Bhushan on behalf of the NCPRI and the Centre for Public Interest Litigation, tried to compel the Government to notify an effective FOI Act immediately. The case was heard by the Supreme Court on 20 July 2004. The Supreme Court's Order set a deadline of 15 September 2004 for the Central Government to advise when the Act will be notified and if not, when interim Administrative Guidelines would be issued. In the meantime, on 12 August, the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions finally released Draft Rules under the Freedom of Information Act 2002. In May 2004, the UPA Government came to power at the Centre. The national campaign for right to information received a major boost when the UPA Government's Common Minimum Programme promised that: "The Right to Information Act will be made more progressive, participatory and meaningful". The National Advisory Council (NAC) was set up to oversee implementation of the Government's Common Minimum Programme. Since its inception, the NAC has taken keen interest in RTI meetings.

The Right to Information Bill 2004 (RTI Bill 2004) was tabled on 23 December during the winter session of the Lok Sabha. The RTI Bill 2004 was referred by the Parliament to the Standing Committee on Personnel, Public Grievances, Law and Justice for consideration. A range of civil society activists also gave evidence before the Committee. The Report of the Committee (including a proposed amended version of the RTI Bill) was tabled in the Lok Sabha on 21 March 2005.

On 10 May 2005, the RTI Amendment Bill 2004 was tabled in the Lok Sabha. The Bill was passed very quickly - it was approved by the Lok Sabha on 11 May 2005 and by the Rajya Sabha on 12 May. On 15 June 2005, President APJ Abdul Kalam gave his assent to the national Right to Information Act 2005. With presidential assent, the Central Government and State Governments had 120 days to implement the provisions of the Bill in its entirety. The Act came into force on 12 October 2005

Right to information : important state initiatives

In the realm of citizens’ right to access government-held information, many states have come up with varying legislative initiatives, even before the centre  came up with the Freedom of Information  Bill (2000) and also after it. In 1997, an Action Plan for Effective and Responsive Government was adopted at a conference of  chief ministers which ,among other things ,stressed upon openness and access to information.

The present subject does not fall under any of the three subject lists (union, state and concurrent) of the Indian constitution. As such it is a residuary matter and the power  to legislate on it rests with the union government.

Legal and constitutional perspectives

 

The Right to information is an implicit fundamental right under the constitution of India. This right is an integral part of the right to freedom of speech and expression under Art.19 (1) (a) and the right to life and personal liberty under Art.21. Although Art.19 does not specifically mention the right to information, the Supreme Court has held on several occasions that the right to know is part of the rights to speech and expression.

Article 21 of the Indian Constitution says, “ No person shall be deprived of his life or personal liberty except according to procedure established by law”. The right to life and personal liberty has received wide definition in several Supreme Court rulings. The right to life covers the right to basic needs such as food, education, health and personal liberty covers freedom from illegal and unnecessary restraint. Denial of information relating to these aspects is often a denial of the right itself.

The recognition of the right to information as being an integral part of the constitutional guarantees of freedom of speech and expression finds its genesis in some Supreme Court decisions. The decisions of the supreme court in several cases challenging governmental control over newsprint and bans on the distribution of newspapers also form an important string in this process. In a landmark case the petitioners, M/S.Indian Express Newspapers, publishers of one of the leading national dailies challenged the restrictions in the Newsprint control order on the accquistion, sale and use of newsprint. The Supreme Court stuck down the restrictions on the basis that they interfered with the petitioners right to publish and circulate their paper freely, which was included in their right to freedom of speech and expression.

Provisions of the right to information act

The central concern of the Right to Information Act (RTIA) is to promote transparency and accountability in the functioning of all Public authorities. The main provisions of the Act may be discussed under the following broad headings:

The Obligations of Public Authorities

It shall be the duty of every public authority to maintain all its records duly catalogued and indexed so as to facilitate the execution of RTIA. The public authorities under the RTIA have to reveal:

1.The particulars of its organization, functions and duties.

2.The powers and duties of its officers and employees.

3.The procedure followed in the decision-making process, including channels of supervision and accountability.

4.The norms set by it for the discharge of its functions.

5.A statement of the categories of documents that are held by it or under its control.

6.A statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for public

7.. A directory of its officers and employees.

8.The monthly remuneration received by each of its officers and employees, including the system of compensation as provided for in its regulations.

9.The budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements.      

10. The names, designations and other particulars of the Public Information Officers.

 The Act strongly emphasizes on providing maximum information suo moto at regular intervals through various means of communications, including Internet, so that the public have to resort to the use of this Act minimally to obtain information. And also every information shall be disseminated widely and in such form and manner which is easily accessible to the public.

The information as far as possible should be cost effective and in local language. The information should be easily accessible, to the extent possible in electronic format with the Central Public Information Officer (CPIO) or the State Public Information Officer (SPIO) The information should be available free or at a price as may be prescribed.

Designation of PIOs for implementation of RTIA

Every public authority shall designate as many officers as the CPIOs, SPIOs as the case may be. Every Central Public Information Officer or State Public Information Officer shall deal with requests from persons seeking for information and render reasonable assistance to the persons. The Central Public Information Officer or the State Public Information Officer may seek for the assistance of any other officer as he or she considers it necessary for the proper discharge of his or her duties. Any officer, whose assistance has been sought, shall render all assistance to the CPIO or the SPIO.

Means for obtaining information

A person, who desires to obtain any information under this Act, shall make a request in writing or through electronic means in English or Hindi or in the official language of the area in which the application is being made, along with the prescribed fee. He may address the Central Public Information Officer or the State Public Information Officer, as the case may be.

Provided that where such request cannot be made in writing, CPIO, SPIOs as the case may be, shall render all reasonable assistance to the person making the request orally to reduce the same in writing.

An applicant making a request for information shall not be required to give any reason for requesting for the information or any other personal details except those that may be necessary for contacting him

Furnishing the information

On receipt of the request, the CPIO or the SPIOs shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for valid reasons.

Provided, that where the information sought for concerns the life or liberty of a person, the same shall be provided within forty-eight hours of the receipt of the request.   If the Information Officer fails to give decision on the request for information within the period specified, it shall be deemed to have refused the request. Where a decision is taken to provide the information on payment of any further fee representing the cost of providing the information, the information officer shall send intimation to the person making the request, giving—

(a)   The details of further fees representing the cost of providing the information as determined by him, requesting him to deposit the fees, and the period intervening between the dispatch of the said intimation and payment of fees shall be excluded for the purpose of calculating the period of thirty days 

(b)   Information concerning his or her right with respect to review the decision as to the amount of fees charged or the form of access provided, including the particulars of the appellate authority, time limit, process and any other forms.

Where access to the record or a part thereof is required to be provided under this Act and the person to whom access is to be provided is sensorily disabled, the Information Officer shall provide assistance to enable access to the information, including providing such assistance as may be appropriate for the inspection.

Where access to information is to be provided in the printed or in any electronic format, the applicant shall pay such fee as may be prescribed, provided that the fee prescribed shall be reasonable and no such fee shall be charged from the persons who are of below poverty line as may be determined by the appropriate Government.

Where a request has been rejected, the CPIO or the SPIO shall communicate to the person making the request, the reasons for such rejection; the period within which an appeal against such rejection may be preferred; and the particulars of the appellate authority. 

Exempted information under RTI Act

Notwithstanding anything contained in this Act, The following information cannot be divulged to the citizens: 

(a)   Information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign States or lead to incitement of an offence;

(b)   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;

(c)   Information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;

(d)   Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;

(e)   Information received in confidence from foreign Government;

(f)    Information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes; 

(g)   Information which would impede the process of investigation or apprehension or prosecution of offenders;

 (h)   Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: 

(i)     Information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority is satisfied that the larger public interest justifies the disclosure of such information: 

(j)     Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. 

(k)   Notwithstanding anything in the Official Secrets Act, 1923 a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. 

(l)     Any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made shall be provided to any person making a request under that section: 

Reasons for rejection of information

CPIOs and SPIOs may reject a request for information where such a request for providing access would involve an infringement of copyright subsisting in a person other than the State 

The Severity clause 

Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information.

Where access is granted to a part of the record the CPIO or the SPIO shall give a notice to the applicant, informing— 

    (a) That only part of the record requested, after severance of the record containing information that is exempt from disclosure, is being provided;

    (b) The reasons for the decision, including any findings on any material question of fact, referring to the material on which those findings were based;and

    (c) The name and designation of the person giving the decision 

Information pertaining to Third Party 

Where the CPIO or the SPIO intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information 

Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party. The third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure. 

The CPIO or the SPIO shall, within forty days after receipt of the request, if the third party has been given an opportunity to make representation, make a decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party. The third party to whom the notice is given is entitled to prefer an appeal against the decision. 

Imposition of penalties 

If any information officer refuses to receive an application for information, malafidely denies the request for information, obstructs such information then the Central Information Commission or the State Information Commission shall impose a penalty of Rs. 250 each day till the information is furnished. However the total amount of such penalty shall not exceed Rs. 25,000. The Central Information Commission/State Information Commission may recommend disciplinary action against the erring official under the service rules applicable to the official concerned 

Criticism of the right to information act

1)      In the era of globalization, the role of government is that of a facilitator. As role of the government has been shrinking, it is pertinent to include private sector in the right to information act. But current act does not include the private sector.

2)      Information according to the act can only be provided, when asked for it by aggrieved citizens. Provisions relating to Suo Moto information to be provided by the concerned authorities are limited. Hence all institutions need to be PRO-ACTIVE in this sense. This is being spoken of to bring in Transparency in administration, to increase the people’s participation and to empower them. 

3)      Bureaucratic Culture of secrecy is also being questioned. Will they take suo moto action to provide the information being called for by citizens? 

4)      Providing information under the act is according to the democratic norms. But it also makes it easy for creating distortions in the administrative work by unwanted elements. Administration is already known for its delay, this Act will increase the workload further. May be this will add to the inefficiency.   

5)      According to the Act, information officers have to be appointed. This will create a long hierarchical chain. It will also add to budgetary expenditure. Thus in this era of downsizing and rightsizing, we will have to look after the cost benefit analysis of the Act. 

6)      Another main purpose of the Act was to do away with the culture of secrecy. But it seems that many clauses have been included to exclude information from being revealed. 

7)      Some of the exemptions include: a) sovereignty and integrity of the country. b) Contempt of court. c) Privileges of the parliament. d) the security, strategic, scientific or economic interests of the state e) information revealed in confidence from foreign government. 

8)      The Right to Information Act can also act as an obstacle in the decision making process. Bureaucratic machinery will be reluctant to provide free and fair advice to politicians. 

9)      We also have large digital divide in our country. Will we be able to deliver benefits of this Act to this section of the society? 

10)  It has also been alleged that bureaucracy is reluctant to adopt new technology. The Act implicitly provides for adoption of information and communication technology. But from various sources it has been confirmed that at ground level bureaucrats have also to be trained in this context. Thus, before the Act comes in to existence it was pertinent to train bureaucracy in this field. 

11)  There is also apprehension that as the annual confidential report is prepared by the seniors, thus junior officers might not come forward against them for redressal of their complaints through this Act. 

12)  The new law applies to all the states. Hence states like Maharashtra and Rajasthan have to scrap their laws, even if they are effective. 

13)  Security and intelligence agencies will provide information related to corruption allegations only, and not on any other subjects. 

14)  The time period for official document to be put in public domain has been increased from ten to twenty years. After so much time any official document will hardly be useful to the public. Citizens will not be interested then to look up for such information. 

15)  According to Commonwealth Human Rights Initiative bureaucracy will do everything it can to block the enactment and implementation of more meaningful right to information. 

16)  Public Information Officers’ criminal liability has been decreased from imprisonment to a fine of rupees 25000/- , subject to departmental proceedings. 

17)  More than 60 % of the people live on rupees less than 100/- per day. It is ordained that cost of application will be rupees 50/-, which is not affordable to those living below poverty line. 

18)  According to the Act copies of documents called for information will be charged at rupees 5/-, per page. CHRI (commonwealth human rights initiative) government thus seeks to create money out of information rather than providing information. Hence, it has been suggested that information should be provided at printing cost and not more.