Right to information has been seen as the key to strengthen participatory democracy and ushering in people centered governance. Without good governance, no amount of developmental schemes can bring improvements in the quality of life of the citizens. Good Governance has four elements transparency, accountability, predictability and participation. Transparency refers to availability of information to the general public and clarity about functioning of governmental institutions. Right to information opens up government’s records to public scrutiny making the government more accountable. Information about functioning of government also enables citizens to participate in the governance process effectively. In a fundamental sense, right to information is a basic necessity of good governance.

Recognizing the need for transparency in public affairs, the Indian Parliament enacted the Right to Information Act in 2005. It is a path breaking legislation empowering people and promoting transparency. The act casts important obligation on public authorities so as to facilitate the citizens of the country to access the information held under their control and imposes penalty for refusal by public authority to provide such information.

Right to Information

Right to Information: Historical Background

  • The right to information is a fundamental right under Article 19 (1) of the Indian Constitution. In 1976, in the Raj Narain vs the State of Uttar Pradesh case, the Supreme Court ruled that Right to information will be treated as a fundamental right under article 19.
  • The Supreme Court held that in Indian democracy, people are the masters and they have the right to know about the working of the government.
  • Thus the government enacted the Right to Information act in 2005 which provides machinery for exercising this fundamental right.
    • The act is one of the most important acts which empowers ordinary citizens to question the government and its working. This has been widely used by citizens and media to uncover corruption, progress in government work, expenses related information, etc.
    • All constitutional authorities, agencies, owned and controlled, also those organisations which are substantially financed by the government comes under the purview of the act. The act also mandates public authorities of union government or state government, to provide timely response to the citizens’ request for information.
    • The act also imposes penalties if the authorities delay in responding to the citizen in the stipulated time.

Objectives of Right to Information Act, 2005

  • The basic objective of the Right to Information Act is to empower the citizens, promote transparency and accountability in the working of the Government, contain corruption, and make our democracy work for the people in real sense.
  • An informed citizen is better equipped to keep necessary vigil on the instruments of governance and make the government more accountable to the governed.
  • The Act is a big step towards making the citizens informed about the activities of the Government.

Important provisions under the Right to Information Act, 2005

  • Section 2(h): Public authorities mean all authorities and bodies under the union government, state government or local bodies. The civil societies that are substantially funded, directly or indirectly, by the public funds also fall within the ambit of RTI.
  • Section- 2(j) : “Right to Information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to:
    • Inspection of work, documents, records;
    • Taking notes, extracts or certified copies of documents or records;
    • Taking certified samples of material;
    • Obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device.
  • Section 4 1(b): Government has to maintain and proactively disclose information.
  • Section 6: Prescribes a simple procedure for securing information.
  • Section 7: Prescribes a time frame for providing information(s) by PIOs.
  • Section 8: Only minimum information exempted from disclosure.
  • Section 8 (1) mentions exemptions against furnishing information under the RTI Act.
  • Section 8 (2) provides for disclosure of information exempted under the Official Secrets Act, 1923 if the larger public interest is served.
  • Section 19: Two-tier mechanism for appeal.
  • Section 20: Provides penalties in case of failure to provide information on time, incorrect, incomplete or misleading or distorted information.
  • Section 23: Lower courts are barred from entertaining suits or applications. However, the writ jurisdiction of the Supreme Court of India and high courts under Articles 32 and 226 of the Constitution remains unaffected.
  • The Act also provides for appointment of Information Commissioners at Central and State level. Public authorities have designated some of its officers as Public Information Officer. They are responsible to give information to a person who seeks information under the RTI Act.
  • Time period: In normal course, information to an applicant is to be supplied within 30 days from the receipt of application by the public authority.
    • If information sought concerns the life or liberty of a person, it shall be supplied within 48 hours.
    • In case the application is sent through the Assistant Public Information Officer or it is sent to a wrong public authority, five days shall be added to the period of thirty days or 48 hours, as the case may be.

Importance of RTI Act, 2005

  • The RTI Act, 2005 did not create a new bureaucracy for implementing the law. Instead, it tasked and mandated officials in every office to change their attitude and duty from one of secrecy to one of sharing and openness.
    • It carefully and deliberately empowered the Information Commission to be the highest authority in the country with the mandate to order any office in the country to provide information as per the provisions of the Act. And it empowered the Commission to fine any official who did not follow the mandate.
  • Right to information has been seen as the key to strengthening participatory democracy and ushering in people centred governance.
  • Access to information can empower the poor and the weaker sections of society to demand and get information about public policies and actions, thereby leading to their welfare. It showed an early promise by exposing wrongdoings at high places, such as in the organisation of the Commonwealth Games, and the allocation of 2G spectrum and coal blocks.
  • Right to information opens up government’s records to public scrutiny, thereby arming citizens with a vital tool to inform them about what the government does and how effectively, thus making the government more accountable.
  • Improves decision making by public authority by removing unnecessary secrecy.

Official Secrets Act and Other Laws

The most contentious issue in the implementation of the Right to Information Act relates to official secrets Act. By the very nature of things, transparency should be the norm in all matters of governance. However, it is well recognised that public interest is best served if certain sensitive matters affecting national security are kept out of public gaze. The Act recognizes the confidentiality requirements in matters of State and Section 8 of the Act exempts all such matters from disclosure. The Official Secrets Act, 1923 (here in after referred to as OSA), governs all matters of secrecy and confidentiality in governance. The law largely deals with matters of security and provides a framework for dealing with espionage, sedition and other assaults on the unity and integrity of the nation.

The Right to Information Act has a non-obstante clause, “Sec. 8(2), Not withstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests”. The provisions of the Act which allow disclosure of information even where there is a clash with the exemption provisions of Sec. 8(1) enjoy a general immunity from other Acts and instruments by virtue of Sec. 22 of the Act; “The provisions of this Act shall have effect notwithstanding anything inconsistent there which contained in the Official Secrets Act, 1923, and any other law for the time being in force or any instrument having effect by virtue of any law other than this Act”.

Section 5 of OSA is the catch of all provisions. As per this Section, any person having information about a prohibited place, or such information which may help an enemy state, or which has been entrusted to him/her in confidence, or which she has obtained owing to his/her official position, commits an offence if she communicates it to an unauthorised person, uses it in a manner prejudicial to the interests of the State, retains it when she has no right to do so, or fails to take reasonable care of such information. Any kind of information is covered by this Section if it is classified as ‘secret’. The word “secret” or the phrase “official secrets” has not been defined in the Act. Therefore, public servants enjoy the discretion to classify anything as “secret”.

The Law Commission in its 43rd Report (1971), summarised the difficulties encountered with the all-inclusive nature of Section 5 of OSA, in the absence of a clear and concise definition of ‘official secret’, in the following words:

“The wide language of section 5(1) may lead to some controversy. It penalizes not only the communication of information useful to the enemy or any information which is vital to national security, but also includes the act of communicating in any unauthorized manner any kind of secret information which a Government servant has obtained by virtue of his office. Thus, every noting in the Secretariat file to which an officer of the Secretariat has access is intended to be kept secret.”

The Law Commission also recommended consolidation of all laws dealing with national security and suggested a “National Security Bill”. The observations made by the Law Commission reproduced below are pertinent: “The various enactments in force in India dealing with offences against the national security are:

  • (i) chapters 6 and 7 of the Indian Penal Code;
  • (ii) the Foreign Recruiting Act, 1874;
  • (iii) the Official Secrets Act, 1923;
  • (iv) the Criminal Law Amendment Act, 1938;
  • (v) the Criminal Law Amendment Act, 1961; and
  • (vi) the Unlawful Activities (Prevention) Act, 1967.”

2nd ARC Recommendations

A. The Official Secret Act, 1923 should be repealed and substituted by a chapter in the National Security Act, containing provisions relating to official secrets.

B. The equivalent of the existing Section 5, in the new law may be recommended as:

  • If any person, having in his/her possession or control any official secret which has come into his/her
    possession or control by virtue of:
    • His holding or having held an office with or under government, or
    • A contract with the government, or
    • It being entrusted to him in confidence by another person holding or having held an office under or with the government, or in any other manner:
      • Communicates, without due authority such official secret to another person or uses it for a purpose other than a purpose for which he is permitted to use it under any law for the
        time being in force; or
      • fails to take reasonable care of, or so conducts himself as to endanger the safety
        of the official secret; or
      • willfully fails to return the official secret when it is his duty to return it, shall be guilty of an offence under this section.
  • Any person voluntarily receiving any official secret knowing or having reasonable ground to believe, at the time he receives it, that the official secret is communicated in contravention of this Act, shall be guilty of an offence under this section.
  • A person guilty of an offence under this section shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.

C. The Central Civil Services (Conduct) Rules prohibit unauthorized communication of information (similar provisions exist for the state government employees under their respective Rules).

2nd ARC has recommended that Civil Services Rules of all States may be reworded on the following lines: “Communication of Official Information: Every Government servant shall, in performance of his duties in good faith, communicate to a member of public or any organisation full and accurate information, which can be disclosed under the Right to Information Act, 2005.”

Key Issues

Issues Faced on the Demand Side

  • Low public awareness:
    • Women: The awareness level among women was found to be low in comparison to men.
    • Rural population: The awareness level in rural population was found to be low compared to urban population.
    • Awareness on provisions of appeals and complaints: The Awareness on Section 18 was 48% amongst the citizens who were not satisfied with the response they got from the PIOs.
  • Issues in filing applications:
    • Non-availability of User Guides for RTI implementation for information seekers: It was highlighted in the information provider survey that nodal departments have often not published these guides which is mandated in section 26.
    • Standard forms for RTI application: There are significant advantages of using a standard form 15 for a RTI application. However, some states have not provided the standard forms.
    • Inconvenient submission channels for RTI application: Inadequate efforts have been made to receive RTI applications through electronic means i.e. on email/ website etc., which can be done by the appropriate Government using Section 26(3)(c).
    • Inconvenient payment channels for submission of application fees: While it is desirable for the State Government to have various channels for fee, public authorities have chosen a subset of the allowed payment channels.
  • Poor quality of information provided:
    • Poor quality information supply due to lack of knowledge and indifferent attitude to the person engaged in supplying information under RTI Act.
  • Constraints faced in inspection of records:
    • If trained properly, the PIOs can provide an option to the citizens to inspect the records. This may help in providing timely and accurate information to the applicant.

Issues Faced on the Supply Side

  • Obsolete record management Guidelines:
    • Ineffective record management system and collection of information from field offices leading to delay in processing of RTI applications. A permanent mechanism with sufficient authority, expertise, and responsibility needs to be created in each Public Authority to coordinate and supervise proper recordkeeping.
  • Non-availability of basic Infrastructure:
    • The Implementation of RTI requires the PIOs to provide information to the applicant through photocopies, soft copies etc. It is a challenge to get information from Block/Panchayat level.
  • Lack of motivation among PIOs:
    • In addition to lack of resources, PIOs lack the motivation to implement RTI Act. During the RTI workshops organized in the surveyed states, PIOs cited that there were no incentives for taking on the responsibility of a PIO.
  • Ineffective implementation of Section 4(1) (b) i.e. disseminate information on suo-moto basis:
    • As per the Act, one of the basic responsibilities of the Public Authorities (PAs) is to disseminate information on suomoto basis:
      • The internal processes within the Public Authorities are not defined, so as to take care of the requirement of the relevant suo-moto clauses.
      • Information proactively disclosed is not updated regularly leading to obsolescence of information provided.
      • The PIOs are also not aware that they can disseminate information on suo-moto basis.
      • At places where suo-moto information is being provided, the quality of disclosure is quite low and does not cater to the information needs of the citizens.

Issues Faced at Information Commissions

  • Centralized Database:
    • There is no centralized database of RTI (at the State/Centre level) applicants.
  • Perception of less number of penalties being imposed:
    • There is a very strong perception in the citizens and the Civil Society Organizations that the Information Commission is lenient towards the erring PIO.
  • Lack of Monitoring and Review mechanism:
    • There are inadequate processes and records available with the Information Commission to take the required steps. A few states conduct reviews to understand issues leading to non-compliance by Public Authorities. There is a lack of follow up mechanism on orders passed.
  • High level of pendency:
    • High level of pendency due to the increase in number of RTI appeals is becoming a major challenge.
  • Geographical spread of the Information Commissions:
    • Majority of the Information Commissions are situated in the State capitals, which results in appellants undergoing an additional cost in order to attend the hearings.

Issues in Implementation

The implementation of the RTI Act is an administrative challenge which has thrown up various structural, procedural and logistical issues and problems, which need to be addressed in the early stages.

Facilitating the access: For seeking information, a process as prescribed under the Act has to be set in motion. The trigger is filing of a request. Once the request is filed the onus of responding to it shifts to the government agency. The steps involved in processing a request for information are given in the below chart.

The 2nd ARC has recommended the following Measures to Improve the Access

  • In addition to the existing modes of payment, appropriate governments should amend the Rules to include payment through postal orders.
  • States may be required to frame Rules regarding application fee which are in harmony with the Central Rules. It needs to be ensured that the fee itself does not become a disincentive.
  • State Governments may issue appropriate stamps in suitable denominations as a mode of payment of fees. Such stamps would be used for making applications before public authorities coming within the purview of State Governments.
  • As all the post offices in the country have already been authorized to function as APIOs on behalf of Union Ministries/Departments, they may also be authorized to collect the fees in cash and forward a receipt along with the application.

Inventory of Public Authorities: The Act defines public authorities to include a vast array of institutions and agencies. Section 2(h) of the act defines criteria under which a body can be declared as “public authority” under the RTI act. For people to access information, a catalogued and indexed list of all public authorities is necessary. The 2nd ARC has recommended the following measures to deal with this problem:

  • At the Government of India level, the Department of Personnel and Training has been identified as the nodal department for implementation of the RTI Act. This nodal department should have a complete list of all Union Ministries/ Departments which function as public authorities.
  • Each Union Ministry/ Department should also have an exhaustive list of all public authorities, which come within its purview. The public authorities coming under each ministry/ department should be classified into (i) constitutional bodies, (ii) line agencies, (iii) statutory bodies, (iv) public sector undertakings, (v) bodies created under executive orders, (vi) bodies owned, controlled or substantially financed, and (vii) NGOs substantially financed by government. Within each category an up-to-date list of all public authorities has to be maintained.
  • Each public authority should have the details of all public authorities’ subordinate to it at the immediately next level. This should continue till the last level is reached. All these details should be made available on the websites of the respective public authorities, in a hierarchical form.
  • A similar system should also be adopted by the States.

Single Window Agency at District Level:

Presently almost all departments and agencies of the State Government are represented at the District level. All these offices are often dispersed and most citizens would be unaware of their location. Under such circumstances it becomes difficult for an applicant to identify the Public Authority and to locate it.The 2nd ARC has recommended the following measures:

  • A Single Window Agency should be set up in each District. This could be achieved by creating a cell in a district-level office, and designating an officer as the Assistant Public Information Officer for all public authorities served by the Single Window Agency. The office of the District Collector/ Deputy Commissioner, or the Zilla Parishad is well suited for location of the cell. This should be completed by all states within 6 months.

Subordinate Field Offices and Public Authorities: A literal interpretation of the law indicates a considerable overlap between PIOs/ APIOs and public authorities so 2nd ARC has recommended that, the lowest office in any organization which has decision making power or is a custodian of records should be recognized as a public authority.

Application to Non-Governmental Bodies:

  • Under the Act, a non-governmental body needs to be substantially financed by government to be categorized as a public authority under the Act. There is however no definition of “substantially financed.”The 2nd ARC has recommended that:
    • Organisations which perform functions of a public nature that are ordinarily performed by government or its agencies, and those which enjoy natural monopoly may be brought within the purview of the Act.
    • Norms should be laid down that any institution or body that has received 50% of its annual operating costs, or a sum equal to or greater than Rs.1 crore during any of the preceding 3 years should be understood to have obtained ‘substantial funding’ from the government for the period and purpose of such funding.
    • Any information which, if it were held by the government, would be subject to disclosure under the law, must remain subject to such disclosures even when it is transferred to a non-government body or institution. This could be achieved by way of removal of difficulties under section 30 of the Act.
FLOWCHART OF THE PROCESSES INVOLVED IN GIVING INFORMATION UNDER RTI ACT

RTI vs Legislations for Non Disclosure of Information

  • Some provisions of Indian Evidence Act (Sections 123, 124, and 162) provide to hold the disclosure of documents.
    • Under these provisions, head of department may refuse to provide information on affairs of state and only swearing that it is a state secret will entitle not to disclose the information.
    • In a similar manner no public officer shall be compelled to disclose communications made to him in official confidence.
  • The Atomic Energy Act, 1912 provides that it shall be an offence to disclose information restricted by the Central Government.
  • The Central Civil Services Act provides a government servant not to communicate or part with any official documents except in accordance with a general or special order of government.
  • The Official Secrets Act, 1923 provides that any government official can mark a document as confidential so as to prevent its publication.

RTI vs Right to Privacy

  • Conceptually, RTI and the right to privacy are both complementary as well as in conflict to each other.
  • While RTI increases access to information, the right to privacy protects it instead.
  • At the same time they both function, as citizen rights safeguarding liberty, against state’s overreach.

When the question of harmonising the contradicting rights arises, it should

  • give justice to the larger public interest
  • advance the public morality

RTI and Political Parties

Why activists want political parties to be brought under RTI?

  • To contain corruption
  • Huge donations from corporates which lead to favouritism or crony capitalism
  • Illegal foreign contribution
  • The leader of the opposition is statutorily mandated to be part of the select committees to choose Chairperson for CIC, Lokpal, CBI Director and CVC
  • Various members of the opposition are also part of various parliamentary committees
  • They enjoy multiple benefits like concessional office spaces, free airtime on DD & AIR from govt

Stand of Political Parties

  • PP’s are not public authorities, hence cannot be brought under RTI Act.
  • Disclosed information can be misused.
  • Can disclose financial information under the IT Act.

Recent Amendments

  • The RTI amendment Bill 2013 removes political parties from the ambit of the definition of public authorities and hence from the purview of the RTI Act.
  • The draft provision 2017 which provides for closure of case in case of death of applicant can lead to more attacks on the lives of whistleblowers.
  • The proposed RTI Amendment Act 2018 is aimed at giving the Centre the power to fix the tenures and salaries of state and central information commissioners, which are statutorily protected under the RTI Act. The move will dilute the autonomy and independence of CIC.
  • The Act proposes to replace the fixed 5 year tenure to as much prescribed by government.

Conclusion

  • The Right to Information Act was made to achieve social justice, transparency and to make accountable government but this act has not achieved its full objectives due to some impediments created due to systematic failures.
  • As observed by Delhi High Court that misuse of the RTI Act has to be appropriately dealt with; otherwise the public would lose faith and confidence in this “sunshine Act”.
  • It is well recognized that right to information is necessary, but not sufficient, to improve governance. A lot more needs to be done to usher in accountability in governance, including protection of whistleblowers, decentralization of power and fusion of authority with accountability at all levels.
  • This law provides us a priceless opportunity to redesign the processes of governance, particularly at the grass roots level where the citizens’ interface is maximum.

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S.Varunrav

Excellent article