“Information is the currency of democracy.” – Thomas Jefferson
Fifteen years have passed since the Right to Information Act, 2005 was enacted. With this Act, India took a step forward to move away from the colonial system of arbitrary government to an era of more transparent and accountable government.
What led to the introduction of RTI in India?
There has been a variety of internal and external pressures on governments to adopt RTI.
(1) Corruption and scandals
The crisis brought into the force due to lack of transparency in the working of the government. A series of transactions were done by the government which came under the preview of the corruption.
(2) Modernization and the Information Society
The expansion of the Internet into everyday life has increased the demand for more information by the public, businesses and civil society groups. Inside the government, 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.
(3) International pressure
The international community has been influential in promoting access to information. The World Bank, the IMF and others have pressed countries to adopt laws to reduce corruption and to make financial systems more accountable.
(4) Wider recognition of Public Interest
- Public interest is a nebulous concept, not defined in any freedom of information laws, understandably so, as it is a very subjective concept, differing from country to country, on the basis of their governmental framework, socio-economic scenario and development complexities.
- Balancing these strategic concerns with the public interest, therefore, depends on the particular country, the genuine interest of the people accessing that information and the legitimate national interest.
The Right to Information
- RTI is an act of the parliament which sets out the rules and procedures regarding citizens’ right to information.
- It replaced the former Freedom of Information Act, 2002.
- Under the provisions of RTI Act, any citizen of India may request information from a “public authority” (a body of Government or “instrumentality of State”) which is required to reply expeditiously or within 30.
- In case of the matter involving a petitioner’s life and liberty, the information has to be provided within 48 hours.
- The Act also requires every public authority to computerize 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.
Governing of the RTI
The Right to information in India is governed by two major bodies:
- Central Information Commission (CIC) – Chief Information commissioner who heads all the central departments and ministries- with their own public information officers (PIO)s. CICs are directly under the President of India.
- State Information Commissions (SIC)– State Public Information Officers or SPIOs head over all the state department and ministries. The SPIO office is directly under the corresponding State Governor.
State and CIC are independent bodies and CIC has no jurisdiction over the SIC.
(1) Central Information Commission
- The Commission consists of a Chief Information Commissioner and not more than ten Information Commissioners.
- At present (2019), the Commission has six Information Commissioners apart from the Chief Information Commissioner.
- They are appointed by the President on the recommendation of a committee consisting of the PM as Chairperson, the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the PM.
- The CIC/IC shall hold office for such term as prescribed by the Central Government or until they attain the age of 65 years, whichever is earlier. They are not eligible for reappointment.
Power and functions
- It is the duty of the Commission to receive and inquire into a complaint from any person regarding information request under RTI, 2005.
- The Commission can order an inquiry into any matter if there are reasonable grounds (suo-moto power).
- While inquiring, the Commission has the powers of a civil court in respect of summoning, requiring documents etc.
(2) State Information Commission
- The Commission consists of a State Chief Information commissioner and ten State Information Commissioners.
- They are appointed by the Governor on the recommendation of the committee consisting of the CM as Chairperson, the Leader of the Opposition in the Legislative Assembly and a state Cabinet Minister nominated by the CM.
- They should be a person of eminence in public life and should not hold any other office of profit or connected with any political party or carrying on any business or pursuing any profession.
- Terms of service are similar to that of CIC.
Powers and functions
- The commission submits an annual report to the state government on the implementation of the provisions of this act. The state government places this report before the state legislature.
- The commission can order an inquiry into any matter if there are reasonable grounds. It has the power to secure compliance of its decisions from the public authority.
- It is the duty of the commission to receive and inquire into a complaint from any person.
- During the inquiry of a complaint, the commission may examine any record which is under the control of the public authority and no such record may be withheld from it on any grounds.
- While inquiring, the Commission has the powers of a civil court in respect of summoning, requiring documents etc.
Constitutional backing of the RTI
- The Indian constitution has an impressive array of basic and inalienable rights termed as fundamental rights contained in part-III.
- These include the right to equal protection of the laws and the right to equality before the law, the right to freedom of speech and expression also the right to life and personal liberty.
- Since RTI, is implicit in the Right to Freedom of Speech and Expression under Article 19 of the Indian Constitution, it is an implied FR.
- These are backed by the right to constitutional remedies that is, the right to approach the supreme court and high court under Article 32 and 226 respectively in case of infringement of any of FRs.
- The state is not only under an obligation to respect the FRs of the citizens but also equally under an obligation to ensure conditions under which the right can be exercised.
- The objective of the right to information act is to protect these constitutional rights.
“Efficient government can not be run, by its mystic Babus but from the enlightened participation of its populace in public affairs.“
Benefits of RTI
- Greater accessibility of information: A person can seek information from any public authority in the form of copies, floppy disks, sample material etc under RTI.
- Efficient governance: RTI Act helps us in knowing the efficiency of the government functioning.RTI has become a reality consistent with the objectives of having a stable, honest, transparent and efficient government.
- Citizen’s participation: Information under RTI can be sought easily by requesting the public officer and assistant public officer in any public authority.
- Government obligation: Obtaining information from any public authority is obligatory for them.
- Maintenance of public record: Under RTI Act, it is the 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.
- Empowerment of Citizens: Every citizen has been empowered to be informed about anything that affects their life directly or indirectly.
Limitations to the RTI
(1) Not an absolute right
- As no right can be absolute, the Right to Information has to have its limitations.
- The RTI and Right to Privacy are, therefore, not absolute rights, both the rights, one of which falls under Article 19(l)(a) and the other under Article 21 can obviously be regulated, restricted and curtailed in the larger public interest.
(2) Subjected to restrictions
- The RTI, being integral part of the right to freedom of speech, is subject to restrictions that can be imposed upon that right under Article 19 (2).
- The revelation of information in actual practice is likely to conflict with other public interests.
- Section 8 of the RTI Act, 2005 primarily deals with the exceptions to the said conferred right.
- The usual exemption permitting Government to withhold access to information is generally in respect of matters such as- national security, international relations etc.
(3) Limitations under the rules
- Rule 4 of RTI Act puts word limit (No. of words needed in different language is different to express the same idea) as 250 words. Word Limit, The Hidden power of Information Officer, is the cause of rejection of application.
- Rule 16 of RTI Act 2005 stats that the proceedings pending before CIC shall abate on the death of applicant. This limitation may hide the corruption & also be misused by corrupt people which lead to murder of applicants.
(4) Only information already available on record is accessible
- The RTI Act provides access only to that information which existent and available in records of the public authorities.
- Therefore, it does not cast an obligation on the public authority to collect and collate any non available information and then furnish it to the applicant who has requested for it.
(5) Certain information may constitute contempt of court
- Any information, the disclosure of which is expressly barred by any Court of law or tribunal or, which may constitute contempt of Court under the Contempt of Court Act, 1971, cannot be released.
- Thus, where a matter is sub judice and no order or judgment has been passed by the court/tribunal, any disclosure of information pertaining to such matter is not permissible.
(6) Information causes a breach of privilege
- The Constitution of India provides some privileges to the Parliament and the State Legislature, so it is clear that such information cannot be issued by the public authority.
- Certain information cannot be disclosed, if it would cause a breach of privilege of Parliament or the State Legislature.
- But, any information relating to any occurrence, event or matter which has taken place, occurred or happened 20 years before the date on which any request for information is made shall be provided.
(7) Information relating to Intellectual Property and trade secrets
- Any information, including commercial confidence, trade secrets or intellectual property cannot be disclosed.
- Such disclosure 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.
Challenges in exercising
(1) Information explosion
Different types of information is sought which has no public interest and sometimes can be used to misuse the law and harass the public authorities e.g. asking for desperate and voluminous information.
(2) Popular (mis)use
Some chauvinists file RTI to attain publicity. It is often used as a vindictive tool to harass or pressurize the already burdened public authorities.
(3) Rising cases of non-disclosure
Some provisions of Indian Evidence Act provide to hold the disclosure of documents. Similar is the case with the Official Secrets Act, 1923. OSA provides that any government official can mark a document as confidential so as to prevent its publication.
(4) Limited ambit of RTI
While the office of the CJI is now under the RTI’s ambit, the CBI is exempt. The CBI, which is an agency that is often engaged in investigation of corruption cases, is today included in a list of exempt organisations in which most of the others are engaged in intelligence gathering.
(5) Threats to whistleblowers
There are rising cases of intimidation, threat and murders of RTI activists. There are no safeguards against the victimisation of the person who makes the complaint.
(6) Legacy issue of Pendency and backlogs
A recent study by NGO Satark Nagrik Sangathan has pointed out that more than 2.2 lakh cases are pending at the Central and States ICs. Maharashtra had the highest number of pending appeals, with over 59,000 cases, followed by Uttar Pradesh (47,923) and the CIC (35,653).
Significance of RTI
- 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.
- RTI has been seen as the key to strengthening participatory democracy and ushering in people-centred governance.
- Access to information has empowered 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.
It is well recognized that RTI is pathbreaking, but has not proved sufficient, to improve governance in its capacity due to various shortcomings. We need to improvise a lot on various parameters as discussed under:
Speedy disposal: The increasing backlog of cases is exacerbated by the fact that most Commissions are functioning at reduced capacity. The government must ensure the timely appointment of chiefs and members of ICs.
Prioritization of cases: There should be a prioritization of cases dealing with information related to life and liberty. Information regarding matters like food distribution, social security, health and other priority issues should be proactively disclosed.
Digitalization: Governments should put in place a mechanism for online filing of RTI applications and bring all authorities under one platform.
Reducing technicalities: The technicalities of filing an RTI application should be more simplified. The literacy rate of rural India is quite low and thus they find it quite difficult to comply with the procedural.
Protecting whistleblowers: There is an urgent need to protect the whistle blowers who are targeted or attacked so easily. The impending bill should be passed or else an ancillary strict measure should be taken in this regard.
Final words from ARC reports:
The report of the second Administrative Reforms Commission entitled, “Right to Information – Master Key to Good Governance” recommends that the Official Secrets Act, 1923, should be repealed, as it is incongruous with the regime of transparency in a democratic society. This recommendation should be adhered to.
- In spite of the above-discussed deficiencies and apprehensions, the RTI has unquestionably proved to be one of the significant milestone and a major step towards ensuring the participatory and transparent development process in the country.
- Currently, the RTI Act in India is passing through a decisive phase, much more needs to be done to facilitate its growth and development.
- The stricter implementation of this law not only depends on the political will but also on active civil societies.
- Mere protest against the lack of implementation of this law alone is not sufficient, one needs to encourage this initiative taken, for the law to grow and mature.
- 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.