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History Of The Right To
Information Act
It has taken India 82 years to transition from an opaque system of
governance, legitimized by the colonial Official Secrets Act, to
one where citizens can demand the right to information. The recent
enactment of the Right to Information Act 2005 marks a significant
shift for Indian democracy, for the greater the access of citizens
to information, the greater will be the responsiveness of
government to community needs.
Right To Information is derived from our fundamental right of
freedom of speech and expression under Article 19 of the Constitution. If we do not have information on how our Government
and Public Institutions function, we cannot express any informed
opinion on it. Democracy revolves around the basic idea of
Citizens being at the center of governance. And the freedom of the
press is an essential element for a democracy to function. It is
thus obvious that the main reason for a free press is to ensure
that Citizens are informed. Thus it clearly flows from this, that
the Citizens Right To Know is paramount.
The Act and its rules define a format for requisitioning
information, a time period within which information must be
provided, a method of giving the information, some charges for
applying and some exemptions of information which will not be
given.
The
Need For The Right To Information
In recent years, there has been an almost unstoppable global trend
towards recognition of the right to information by countries,
intergovernmental organizations, civil society and the people. The
right to information has been recognized as a fundamental human
right, which upholds the inherent dignity of all human beings. The
right to information forms the crucial underpinning of
participatory democracy - it is essential to ensure accountability
and good governance.
The greater the access of the citizen to information, the greater
the responsiveness of government to community needs.
Alternatively, the more restrictions that are placed on access,
the greater will be the feelings of 'powerlessness' and
'alienation'. Without information, people cannot adequately
exercise their rights as citizens or make informed choices.
The free flow of information in India remains severely restricted
by three factors:
a. The legislative framework includes several pieces of
restrictive legislation, such as the Official Secrets Act, 1923;
b. The pervasive culture of secrecy and arrogance within the
bureaucracy; and
c. The low levels of literacy and rights awareness amongst India's
people.
The primary power of RTI is the fact that it empowers individual
Citizens to requisition information. Hence without necessarily
forming pressure groups or associations, it puts power directly
into the hands of the foundation of democracy- the Citizen.
Applicability
The Act applies both to Central and State Governments and all
public authorities. A public authority (sec. 2(h)) which is
bound to furnish information means any authority or body or
institution of self-government established or constituted (a) by
or under the Constitution, (b) by any other law made by
Parliament, (c) by any other law made by State Legislature, (d) by
a notification issued or order made by the appropriate Government
and includes any (i) body owned, controlled or substantially
financed, (ii) non-government organization substantially financed
- which, in clauses (a) to (d) are all, directly or indirectly
funded by the appropriate Government.
Definition: Information
The Act defines information in sec. 2(f) as any material in any
form, including the records, documents, memos, e-mails, opinions,
advices, press releases, circulars, orders, log books, contracts,
reports, papers, samples, models, data material held in any
electronic form and information relating to any private body which
can be accessed by a public authority under any law for the time
being in force. Sec. 2(i) defines the word ‘record’ as including
(a) any document, manuscript and file, (b) any microfilm,
microfiche and facsimile copy of a document, (c) any reproduction
of image or images embodied in such microfilm and (d) any other
material produced by a computer or any other device.
Definition: Right To Information
The right to information is defined in sec. 2(j) as a right to
information accessible under the Act which is held by or under the
control of any public authority and includes a right to (i)
inspection of work, documents, records, (ii) taking notes,
extracts or certified copies of documents or records, (iii) taking
separate samples of material, (iv) 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.
Maintenance And Publication Of Records
Sec. 4 makes it a duty of public authorities to maintain records
for easy access and to publish within 120 days the name of the
particular officers who should give the information and in regard
to the framing of the rules, regulations etc. Subsection (3) of
sec. 4 states that for the performance of subsection (1), all
information shall be disseminated widely and in such form and
manner, which is easily accessible to the public.
Sec. 6 permits persons to obtain information in English or Hindi
or in the official language of the area from the designated
officers. The person need not give any reason for the request or
any personal details. Sec. 7 requires the request to be disposed
of within 30 days provided that where information sought for
concerns the life or liberty of a person, the same shall be
provided within 48 hours. Under sec. 7(7) before any decision is
taken for furnishing the information, the designated officer shall
take into consideration the representation, if any, made by a
third party under sec. 11.
A request rejected shall be communicated under sec. 7(8) giving
reasons and specifying the procedure for appeal and the
designation of the appellate authority. Sec. 7(9) exempts granting
information where it would disproportionately divert the resources
of the public authority or would be detrimental to the safety and
preservation of the record in question.
Exemptions
Sec. 8 exempts from disclosure certain information and contents as
stated in Sub-clauses (a) to (j) thereof. Sub-clause (b) exempts
information, which is expressly forbidden by any court of law or
tribunal or the dispute of which may constitute contempt of court.
Sub-clause (g) exempts information the disclosure of which would
endanger life, or physical safety of any person or identify the
source of information or assistance given in confidence for law
enforcement or security purpose. Sub-clause (h) exempts
information, which could impede the process of investigation or
apprehension or prosecution of offenders. Sub-clause (i) exempts
Cabinet papers.
It is important to note that the Act specifies that intelligence
and security organizations are exempted from the application of
the Act. However, it is provided that in case the demand for
information pertains to allegations of corruption and human rights
violations, the Act shall apply even to such institutions.
Constitutional Avenues Remain Open
Under the Act, where a citizen has exhausted the remedy of appeal
or second appeal, the finality given to the orders of the
commissioners and appellate authorities is only for the purposes
of the Act and the citizen has a right to approach the High Court
under Art. 226 or where it refers to a fundamental right, he may
even approach the Supreme Court under Art. 32.
Right
To Information As A Fundamental Right:
Supreme Court On The Right To Information
The right to information is a fundamental right flowing from Art.
19(1)(a) of the Constitution is now a well-settled proposition.
Over the years, the Supreme Court has consistently ruled in favor
of the citizen’s right to know. The nature of this right and the
relevant restrictions thereto, has been discussed by the Supreme
Court in a number of cases:
In Bennett Coleman, the right to information was held to be
included within the right to freedom of speech and expression
guaranteed by Art. 19 (1) (a).
In Raj Narain, the Court explicitly stated that it is not in the
interest of the public to ‘cover with a veil of secrecy the common
routine business - the responsibility of officials to explain and
to justify their acts is the chief safeguard against oppression
and corruption.’
In S.P. Gupta, the right of the people to know about every public
act, and the details of every public transaction undertaken by
public functionaries was described.
Comparison With The USA Act
The United States enacted a Freedom of Information Act (FOIA) in
1966 and introduced amendments in 1974 and 1986. This Act is
applicable to government agencies. ‘Agencies’ under the act
include the whole executive arm of the state as well as military
department, government corporations and government controlled
corporations and any independent regulatory agency.
The Act begins with the obligation on the government agencies to
publish (in the Federal Register) information about the
organization of the agency; functions; procedure; the
persons/officials from whom information can be collected; the
availability of forms; the scope of information available; the
substantive rules and statements of general policy or
interpretations of general applicability adopted by the agency and
amendments thereof.
The agencies are obligated to provide records not included in the
above categories, upon request, which reasonably describes the
record. The right to make a request lies with ‘ any person’, i.e.,
any legal entity like an individual, private corporation etc. The
request has to be in accordance with the rules in place regarding
time, place, fees and procedure to be followed. The regulations
have to be made by each agency and framed pursuant to notice and
receipt of public comments thereon. It must include a schedule of
the fees and the guidelines to determine the waiver or reduction
of the fees.
The Act contains minimum tests for fees. Fees have to be limited
to reasonable standard charged for search, duplication and review
when requested for commercial use. This is limited to reasonable
charges for duplication only when request is by educational or
scientific institution, for scholarly or scientific research; or
by representative of the news media. For any other kind of
request, reasonable standard charges for document search and
duplication is the norm.
Time period for compliance with a request is ten (10) days from
receipt of the request. Decision will be notified immediately to
the requestor with reasons. In case of refusal, it must mention
the right to the requester to appeal to the head of the agency and
the names and titles/positions of the person responsible for the
denial. The time limit is extendable with notice and reason but
only for a maximum of 10 more days. Such extension is allowed for
search and consultation time.
The first appeal lies to the head of the agency and has to be
determined within twenty (20) days from the date of receipt of the
appeal. From this departmental appeal lies the right of judicial
review by the District Court. The court can be approached
directly, in case of no response on the request within twenty days
or if the decision of the departmental appeal is not given within
twenty days. Additional time is given for review of the request by
the court after retaining jurisdiction if the government can show
existence of exceptional circumstance and due diligence of the
agency in responding to the request.
The United States like other developed countries enacted laws such
as the Freedom of Information Act 1966,which allow individuals to
access records of government agencies in order to ascertain the
proper functioning of such agencies. The Freedom of Information
Act like our own Right to Information Act provides for a specific
time period within which applications made under the act must be
complied with. The Freedom of Information of Act provides that
only a reasonable fee for compiling with the request for
information shall be levied on the citizen. Similarly the Right to
Information Act also provides for a prescribed fee that will be
levied on the citizen making an application for information.
Freedom of Information Act, which expressly provides for the
District courts in the US to exercise the power of judicial review
in case of non-response from the authorities established under the
act or by way of appeal from such authority. The power of judicial
review though not expressly provided under the Act is inherent, as
this power has been given to them by the Constitution.
Impact Of The New Law
Now that the statute requires information about the pendency of
the applications, reasons as to why they are not disposed of or
the reasons behind the rejection of an application, there is bound
to be improvement in the efficiency of the departments. As of now,
the only supervision of efficiency is supervision that is made by
the superior officers at the time of reviewing the employees’ work
and while recording comments in the annual confidential reports or
ACRs. This process has not proved successful and though it may be
continued, still the threat of a Designated official calling for
the relevant information at the instance of a citizen will be a
salutary check on the inefficiency of officers. It also checks
lethargy or bad faith or corrupt motives.
Another important aspect is that in India we have not given
respect and prominence to the rights of the individual Citizen.
True democracy is impossible until we recognize the majesty of the
individual Citizen. If individual Citizens are empowered to ensure
greater accountability and transparency in governance, it can
bring about a major change. There has been no vehicle available
for individual citizens to impact the governance structure. In a
system reeking with corruption and becoming increasingly
insensitive to the problems of the disadvantaged Citizenry, the
Right To Information has shown promise of empowering Citizens to
get accountability and act as an enforcer of good governance.
The overall impact of these decisions has been to establish
clearly that the right to freedom of information, or the public's
right to know, is embedded in the provisions guaranteeing
fundamental rights in the Constitution. Various Indian laws
provide for the right to access information in specific contexts.
Section 76 of the Indian Evidence Act, 1872, contains what has
been termed a 'Freedom of Information Act in embryonic form'. This
provision requires public officials to provide copies of public
documents to anyone who has a right to inspect them.
The Factories Act, 1948, provides for compulsory disclosure of
information to factory workers "regarding dangers including health
hazards and the measures to overcome such hazards", arising from
their exposure to dangerous materials. While this is an excellent
provision, in practice it is violated with impunity. The
Environment (Protection) Act 1986, and the Environmental Impact
Assessment Regulations provide for public consultation and
disclosure in various circumstances.
Example Of Use Of The Act
One of the simple and yet very powerful examples of use of the
Right To Information (RTI) I have heard is of a slum dweller that
had learnt the use of the Right To Information. When he applied
for a new ration card, he was told that he would have to give a
bribe of Rs. 2000 to the officials to obtain it. Our friend, -a
RTI-empowered Citizen, - smiled, and applied for the ration card
without offering any bribes or groveling in front of the officials
for pity. Our common Citizen had decided to personally become the
enforcer of good governance. He found out that the bribe-givers
got their ration cards in about four weeks. He waited for an extra
four weeks, and then applied for information under RTI. Using the
simple format with an application fee of Rs. 10, he delivered it
to the Public Information Officer of the Food and Supply office.
He had asked up to, which date applications for ration cards had
been cleared, and the daily progress report of his application.
This shook up the corrupt officials, since the answer would reveal
that they had given ration cards to others who had applied after
him, which would be conclusive evidence that they had no
justification for delaying his card. Happy ending: The Ration card
was given to him immediately. Our RTI-empowered Citizen had been
able to enforce the majesty of the Citizen by using RTI. This
story has been repeated many thousand times in getting a road
repaired, getting an electricity connection, admissions in
educational institutions and so on.
Criticisms
The Act has been criticized on several grounds. It provides for
information on demand, so to speak, but does not sufficiently
stress information on matters related to food, water, environment
and other survival needs that must be given pro-actively, or suo
moto, by public authorities. The Act does not emphasize active
intervention in educating people about their right to access
information -- vital in a country with high levels of illiteracy
and poverty -- or the promotion of a culture of openness within
official structures. Without widespread education and awareness
about the possibilities under the new Act, it could just remain on
paper. The Act also reinforces the controlling role of the
government official, who retains wide discretionary powers to
withhold information.
The most scathing indictment of the Bill has come from critics who
focus on the sweeping exemptions it permits. Restrictions on
information relating to security, foreign policy, defence, law
enforcement and public safety are standard. But the Right to
Information Act also excludes Cabinet papers, including records of
the council of ministers, secretaries and other officials, this
effectively shields the whole process of decision-making from
mandatory disclosure.
Another stringent criticism of the Act is the recent amendment
that was to be made allowing for file notings except those related
to social and development projects to be exempted from the purview
of the Act. File notings are very important when it comes to the
policy making of the government. It is these notes that hold the
rationale behind actions or the change in certain policy, why a
certain contract is given or why a sanction was withheld to
prosecute a corrupt official. Therefore the government’s intention
to exempt the file notings from the purview of the Act has come in
for stringent criticisms.
Conclusion
By enacting the Right to Information Act India has moved from an
opaque and arbitrary system of government to the beginning of an
era where there will be greater transparency and to a system where
the citizen will be empowered and the true center of power. Only
by empowering the ordinary citizen can any nation progress towards
greatness and by enacting the Right to Information Act 2005 India
has taken a small but significant step towards that goal.
The real Swaraj will come not by the
acquisition of authority by a few but by the acquisition of
capacity by all to resist authority when abused. Thus with
the enactment of this Act India has taken a small step towards
achieving real Swaraj.
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Right To Information Act- An Overview
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The
author can be reached at:
dheerajmani@legalserviceindia.com /
