Right to Information Act, 2005
Right to information is more or less a universal concept. The concept of Right to know and right to Information, and right to make a demand for certain documents with the public authorities had been dealt with, and have been appraised. The idea that governments withhold information for the public’s benefit has become outdated. During the last decade, many countries have enacted legislations on freedom of information, giving their citizens access to governmental information, and thus, opening way to true democracy.
In India, the Official Secrets Act 1923 was enacted to protect the official secrets. The new information law intend to disclose information, replacing the ‘culture of secrecy’ in administration. It will promote public accountability which is a part of governance. Where the accountability is exposed, the malpractice, mismanagement, abuse of discretion, bribery etc are trimmed down.
The right to Know flows directly from the guarantee of free speech and expression in Art 19(1)a of the Constitution of India. Yet, it requires fair and efficient procedures to make the freedom of information work.
The first and most well known right to information movement in India was by the Mazdoor Kisan Shakti Sangathan(MKSS) in Rajasthan during the early 1990’s. MKSS’s struggle for the access to village accounts and transparency in administration is widely credited and sparked off the right to information movement in India.
The Right to Information Act, 2005 provides the procedure by which the public can make requests for information held by the public authorities. It also provides for the set up of Information Commissions to deal with complaints and appeals arising in the information system. The Act provides for the openness of the governmental activities and to publish regular information. The Act also provides minimal exceptions to the right to information where national security, public order, privacy etc are concerned.
The basic object of the Act is to provide access to information for the common man. And in order to exercise the freedom of speech and expression, a citizen should be informed. Informed citizenry which is the essence of RTI Act is the curator of democracy. The Act is also beneficial to the governments themselves as openness and transparency in the decision-making process assist in developing citizens’ trust in government actions and maintaining a civil and democratic society. The transparency and accountability in the public authority shall contain corruption and thus, the government and its various instrumentalities become accountable to the governed, i.e. the citizens.
The Key Concepts
• Transparency and accountability in the working of every public authority.
• The right of any citizen of India to request the access to information.
• The obligation of Public authorities to pro-actively make key information to all.
• A responsibility on all sections of life : Citizenry, NGOs, Media
Different ways in which access to information is provided under RTI Act
The main object of the Act is to provide information. And the Act provides the ways in which the information can be accessed. The Sec 3 states that, subject to the provisions of this Act, all citizens shall have the right to information. The Act enforces a duty upon the public authorities to disclose all information starting from the particulars of its organisation, functions, and duties, to budget allocated to each of its agency. It shall also publish relevant facts while formatting important policies which affect public and to give reasons for its administrative or quasi-judicial decisions to affected person. Thus, the Act imposes an obligation upon the public authorities to disclose information. Also, it is stated under Sec 4 (2) that every public authority shall take constant steps to provide information suo moto to the public. Thus the authorities have to give information voluntarily so that the public have minimum resort to use this Act.
The public authorities also have to disseminate information widely in any form which is easily accessible to the public. The word ‘dissemination’ has been defined in the Act. Disseminated means making known or communicated the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet or any other means, including, inspection of offices of any public authority. Thus the dissemination of information by public authorities has been made mandatory by the Act.
Finally, the Information can be obtained by request in writing or through electronic means in English or Hindi or in the official language of the area in which the applications is being made (sec 6). Here, the person has to give payment of fees. And where the request cannot be made in writing, the central PIO and State PIO shall render all assistance to the person to reduce the oral request into writing.
Where the information has not been provided correctly or within time, access to information is made available by means of appeal or complaint to the Information Commission. (Sec. 8 (a)1).
The Act gives State Information Commission or Central Information Commission, as the case may be, an important role in developing the system and mechanism for the disclosure and dissemination of information by considering the public interest and the necessity of right to know. They are given wide discretion and they are expected to ensure the transparency and to be liberal in interpreting the provisions of the Act in favour of disclosure than concealment. It is their duty to pursue the bureaucratic mindset and to guide them towards dissemination of information. The state information commission or central information commission, as the case may be, are autonomous bodies without being subjected to directions by any other authority.
The Act states that the Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance. The Act does not restrict a former or serving civil servant from becoming a commissioner. But various advocacy groups like National Campaign for People’s Right to Information (NCPRI) expresses that a person who has served in a particular ministry should not be made the Information Commissioner responsible for that ministry because there might be a conflict of interest .
Therefore, it is important to have a transparent process of selecting the information commissioners to ensure independence and competence and they are truly eminent, suited to the position.
The information commissioner has wide powers to secure compliance of its decisions from the public authority like,
- directing the public authority to appoint PIO if they are not designated in a public authority
- Publishing information or categories of information
- Enhancing training provision for officials on right to information
- Impose penalties under the Act
- Direct the Public authority to take departmental actions under service rules
- Providing access to information, if requested, in a particular form
- To seek an annual report from the public authority in compliance with the Act.
- Require the public authority to compensate the complainant for any detriment suffered
- Reject the application .
Appeals: Sec 19 of the Act provides two tier system of appeals- first appeal and second appeal.
First appeal: Any person who is aggrieved by the decision of the Central PIO or State PIO, as the case may be, or not receiving the requested information within 30 days, can prefer a first appeal before the First Appellate Authority.
The Appellate Authority shall be an officer who is senior in rank to the Central PIO or State PIO, in each public authority. And the appeal is to be filed within 30 days from the expiry of time period specified for receiving a decision or from receipt of a decision. But this limitation period shall be relaxed if the appellate authority is satisfied that there is sufficient cause that prevented the filing of appeal within the time limit.
An appeal can be preferred also by the third party in case of third party information. [sec.19 (2)] And third party means a person other than the citizen making a request for information and includes public authority.
Second Appeal: The Second appeal lies before the State or central information commission against the decision of the first appellate authority. The second appeal has to be filed within 90 days from the date of receipt of the decision, which can be condoned, in case the commission is satisfied that there are sufficient reasons for the delay.
As per section 19(7), the decision of Central or State Information commission, as the case may be, shall be binding. The information commission can review their own decisions, if there is a technical error in the decision or if there was an omission to consider relevant material facts in a particular case.
Also it is t be noted that, it is the requestor who appeal under the Act. There is no provision in the RTI Act to consider appeals or complaints by the PIO himself against the order of an appellate authority. This is because the PIO is the information provider and hence, there is no question of denial of information by the PIO.
1. It is highly recommended that the appellate authority should also be included within the penalizing provisions and not to put the PIO alone in the frame. In a case, CIC/EB/C/2006/0040, the same question arose, i.e. whether an appellate authority can be penalised under this Act? The Appellate authority is not covered under the penalizing provisions of the Act. But in this case, it was proved that he clearly failed to uphold the Act in the public interest. This decision of the CIC asked the public authority to consider disciplinary action under their service rules.
2. It is noted that even after three years of implementation of the Act; most of the Public Information Officers take this Act carelessly and have the least knowledge of the Act. The Commissions have powers to enhance training provision for officials on right to information and ask them to give guidance on how to use the Act. It can be suggested that, a mandatory provision to establish a system of education on the RTI Act to be given, to promote the freedom of information.
3. Most of the information cases deals with seeking the personal information. Information sought on public interest is rarely seen. Hence it is necessary to set up a public education campaign on ‘how to access information and its application’ at Panchayat, school level etc, in order to make them feel empowered.
4. In order to reduce the pendency of information cases, there should be speedy disposal of petitions. On of the drawbacks of having governmental officers as PIO was that most of them did not know the procedures of working of commissions. Repeated hearings were required, since the PIOs’ were unable to bring explanations/affidavits giving reasons for the delay in disposing request. So it is suggested that Manual for public authorities should include the ‘procedures for appearing for hearings before the Information commissions’ while dealing with Information cases.
5. As a larger issue, ‘File notings’ must be brought within the purview of RTI Act. Sec.2 (f) of the Act defines information as any material in any form including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be assessed by a public authority under any other law for the time being in force. And file notings may be construed as an expression of opinion by the government officials with regard to any matter under their consideration and it is retailing than a mere gossip or hearsay. Many campaigns to include file notings are progressing and it is hoped that it shall be included in the Act.
6. The Act does not confer any power on SIC or CIC to invalidate or strike down Rules issued by the appropriate Government or the Competent Authorities. But should it be specifically mentioned in the RTI Act, when the Rules are made for the effective implementation of the Act. And such a situation shall arise only when Rules issued are detrimental to the object of the Act. The rules made by the Central Government or State Government, shall be laid before each House of Parliament or before the State legislature, as the case may be. Hence it is suggested that each Rule made by the competent authority, based on RTI Act should also be put to scrutiny by Information Commissions or a superior body.
Is RTI Act a successful enactment?
The RTI Act has paved way for informed citizenry which would strengthen the democratic government of India. With the enactment of Information Act, we can use our right to speech and expressions and control the governmental activities effectively. Since the Act requires information regarding the pendency of application, the reasons as to why they are not disposed of etc. now, there is improvement in the efficiency of the departments. There is always the risk of a designated official calling for the relevant information at the instance of a citizen which will act as a check on the inefficiency of officers. Thus, the government becomes accountable to the citizens. The idea of open government is becoming a reality with the implementation of RTI Act.
One of the important after effects of the Act is changing the mindset of the bureaucracy. The RTI Act can be called a success only if the bureaucracy accepts that they have constitutional obligation to serve information, at the instance of request. There is always a wide disparity between the legislation in theory and legislation in practice. Several of the legislations have met failure in practical implementation . And this adds to the ‘social cause’ of Right to information, which shall maintain transparency in administration, to restrain corruption to greater extent. And it has to be noted that several legislations have been enacted after the independence, but very few them have been successfully implemented and having such a massive social impact.
Perhaps there is no other law like RTI Act, which touches the day to day life of a common man.
The author can be reached at: firstname.lastname@example.org