RTI – CIC, RTI Backlog, etc.

RTI – CIC, RTI Backlog, etc.

A fact check unit that is unconstitutional

Note4Students

From UPSC perspective, the following things are important :

Mains level: freedom of speech

Centre's fact-check unit: What is it and how does the Union govt defend it?

Central idea

The article critically examines the Government of Tamil Nadu’s establishment of a Fact Check Unit, highlighting constitutional concerns, the potential impact on freedom of speech, and the challenges posed by ambiguity and absence of due process.

What is fact check unit?

A Fact Check Unit is an entity or organization tasked with verifying the authenticity and accuracy of information, particularly in the context of news, announcements, policies, schemes, guidelines, and initiatives of a government or other institutions.

Key Highlights:

  • Establishment of Tamil Nadu Fact Check Unit: The Government of Tamil Nadu issues an order to create a Fact Check Unit for verifying information related to the state government across diverse media platforms.
  • Constitutional Concerns Raised: Assertions about the order violating fundamental rights and being constitutionally vague and arbitrary, particularly emphasizing the potential infringement on freedom of speech.
  • Impact on Freedom of Speech: Examining the implications of the Fact Check Unit on freedom of speech and expression, highlighting the need for reasonable restrictions and challenging the authority of a Government Order in imposing such restrictions.
  • Chilling Effect Analysis: A deeper analysis of the perceived chilling effect on freedom of speech, exploring the implications of the Government acting as the arbiter of information authenticity.

Press Information Bureau

Challenges:

  • Scope Ambiguity and Potential Misuse: Critiques the lack of specificity in defining “information related to the Government of Tamil Nadu,” raising concerns about ambiguity and the possibility of misuse.
  • Due Process Absence: Points out the absence of due process, where the Fact Check Unit lacks a mechanism for the author’s hearing, positioning the government as the sole determinant of information authenticity.
  • Legal Limitations on Government Orders: Discusses the legal limitations of Government Orders in imposing restrictions on freedom of speech, underscoring the need for a more nuanced and legislative approach.
  • Global Challenges of Misinformation: Draws parallels with global challenges of misinformation, citing events like the U.S. presidential election, and underscores the necessity for effective measures in addressing this widespread issue.

Key Phrases for enhancing answer quality:

  • “Chilling effect on freedom of speech”
  • “Unconstitutionally vague and arbitrary”
  • “Opportunity of hearing”
  • “Mis/disinformation and fake news challenge”
  • “Government as judge, jury, and executioner”

Analysis:

  • Constitutional Implications Explored: In-depth analysis of the constitutional concerns, with a focus on how the Fact Check Unit might impact freedom of speech and questioning the legal standing of a Government Order.
  • Interrogation of Scope Ambiguity: Scrutiny of the ambiguity surrounding the definition of “information related to the Government of Tamil Nadu,” delving into potential implications for various forms of expression.

Key Facts:

  • US Election and Misinformation Parallel: Drawing parallels with global challenges of misinformation during events like the U.S. presidential election, emphasizing the need for effective measures.

Way Forward:

  • Stakeholder Consultation Advocacy: Advocacy for comprehensive consultations with stakeholders, including the public and intermediaries, to develop effective measures against misinformation.
  • Global Best Practices Exploration: Encouraging exploration of global best practices, such as the European Commission’s Code of Practice on Disinformation, for a more inclusive and well-informed approach.
  • Media Literacy Promotion Recommendation: Recommending the promotion of media literacy and support for an independent network of fact-checkers as constructive measures to combat misinformation.

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RTI – CIC, RTI Backlog, etc.

Has the RTI been weakened over the years?

Note4Students

From UPSC perspective, the following things are important :

Prelims level: RTI

Mains level: Excusions to RTI queries and issues

Central Idea

  • Activists worry about the diminishing effectiveness Right to Information Act, 2005 in holding officials accountable.
  • The Act has exemptions for political parties, the judiciary, and intelligence agencies.
  • Recent amendments have sparked concerns, such as personal data protection provisions.

The DPDP Act and RTI

  • The Digital Personal Data Protection Act, of 2023 prohibits personal data disclosure, even for social audits, reducing transparency.
  • Critics fear this blanket ban may hinder accountability and transparency efforts.

About the Right to Information (RTI)

Enactment June 15, 2005
Objective Promote transparency and accountability
Applicability All public authorities at central, state, local levels
Scope Access to information on matters of public interest, government policies, budgets, etc.
RTI Application Filed in writing with the concerned public authority
Response Time Within 30 days (48 hours for life or liberty issues)
Exemptions Some information exempted to protect national security, privacy, etc.

Judiciary

Fees Nominal fee varies based on state and information requested
First Appellate Authority Filed if dissatisfied with the response
Second Appeal Filed with the relevant Information Commission
Whistleblower Protection Safeguards against victimization for exposing corruption
Impact Promotes transparency, accountability, and good governance

Challenges in Implementation

  • Implementation issues undermine the transparency that the Act aims to achieve.
  • The Act’s effectiveness depends on subordinate rules set by the Union and State Governments.
  • Slow appointments to information commissions delay appeals and erode trust in the system.

Barriers and Online Solutions

  • Payment methods for RTI applications vary among States, causing complications.
  • Online RTI portals remove barriers but are not widespread, hindering access.
  • The Union Government’s RTI portal has usability issues, impacting data retrieval.

Growing Dissatisfaction

  • Rising first appeals indicate growing dissatisfaction with the information provided.
  • Structural problems in institutions and websites hinder RTI effectiveness.
  • Activists emphasize the importance of addressing broader institutional issues.

Conclusion

  • The RTI Act’s efficacy is hampered by implementation challenges, amendments, and online barriers.
  • A holistic approach is needed to restore and enhance the Act’s effectiveness.
  • Addressing these issues will strengthen transparency, accountability, and citizens’ access to information.

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RTI – CIC, RTI Backlog, etc.

RTI and Political Parties: The Accountability Debate

Note4Students

From UPSC perspective, the following things are important :

Prelims level: RTI

Mains level: Read the attached story

rti

Central Idea

  • Chief Justice of India acknowledged the concerns raised by political parties regarding the potential disclosure of internal decisions under the Right to Information (RTI) Act.
  • The case before the three-judge Bench seeks to determine whether national and regional political parties should be considered “public authorities” under the RTI Act.
  • The court will delve into the matter further to strike a balance between transparency and the confidentiality of parties’ internal functions.

Facts for Prelims: Right to Information (RTI) Act

Enactment June 15, 2005
Objective Promote transparency and accountability
Applicability All public authorities at central, state, local levels
Scope Access to information on matters of public interest, government policies, budgets, etc.
RTI Application Filed in writing with the concerned public authority
Response Time Within 30 days (48 hours for life or liberty issues)
Exemptions Some information exempted to protect national security, privacy, etc.

Judiciary

Fees Nominal fee varies based on state and information requested
First Appellate Authority Filed if dissatisfied with the response
Second Appeal Filed with the relevant Information Commission
Whistleblower Protection Safeguards against victimization for exposing corruption
Impact Promotes transparency, accountability, and good governance

RTI Act and Political Parties

  • Petitions Seeking Declaration: A batch of petitions has been filed, urging that political parties should be classified as “public authorities” under the RTI Act. The Congress, BJP, and other parties are respondents in this case.
  • Concerns Raised: The Communist Party supports financial transparency but objects to revealing confidential information, such as candidate selection processes and internal discussions.
  • Judicial Observation: CJI acknowledged the concerns, indicating that parties may have a point in not disclosing internal candidate selection processes.

Arguments Presented

  • Benefits and Governance Role: Petitioners argue that political parties receive considerable benefits from the government, including bungalows, and play a role in governance through legislator control.
  • CIC’s Ruling: The Central Information Commission (CIC) had previously declared political parties as public authorities in 2013 and 2015.
  • Parties’ Response: Political parties have expressed reservations, stating that RTI disclosure may intrude on confidential discussions, affect their stance towards the government, and hinder their ability to organize protests against government policies.
  • Union Government’s Stand: The government opposes the petitions, contending that parties’ internal functioning and financial information should not be compelled under the RTI Act, as this could be misused by political rivals.

CIC’s Interpretation

  • Liberal Interpretation of RTI Act: The CIC’s interpretation of Section 2(h) of the RTI Act, classifying political parties as public authorities, has been disputed.
  • Political Parties Not Government Bodies: The Centre argues that political parties are not government bodies established by the Constitution or any parliamentary law.
  • Existing Transparency Provisions: The Income Tax Act and the Representation of the People Act already require necessary transparency regarding financial aspects of political parties.

Conclusion

  • The case raises essential questions about transparency versus confidentiality in their internal operations of a political party.
  • Striking a balance between citizens’ right to information and parties’ right to maintain confidentiality will be crucial in the court’s deliberation.
  • The judgment could set a precedent for how political parties are held accountable to the public while safeguarding their internal processes.

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RTI – CIC, RTI Backlog, etc.

Tamil Nadu worst performer in RTI responsiveness

Note4Students

From UPSC perspective, the following things are important :

Prelims level: RTI

Mains level: Issues in RTI implementation

rti

The State Information Commission of Tamil Nadu has been the worst performing as far as responsiveness under the RTI Act is concerned, furnishing only 14% of the information sought for 2021-22.

State’s responses to RTI

  • Maharashtra was second-worst, sharing 23% of the information asked for.
  • Only 10 ICs provided full information in response to the RTI applications filed as part of this assessment.
  • These included Andhra Pradesh, Haryana, Jharkhand and northeastern States of Sikkim, Nagaland and Tripura.
  • Uttar Pradesh and Andhra Pradesh returned around 40% of the appeals or complaints received by them.

What is the Right to Information (RTI)?

  • RTI is an act of the parliament that 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 a 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.

What led to the introduction of RTI in India?

There has been a variety of internal and external pressures on governments to adopt RTI.

  • Corruption and scandals: The crisis was brought into force due to a lack of transparency in the working of the government.
  • 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.
  • International pressure: The World Bank, the IMF and others have pressed countries to adopt laws to reduce corruption and to make financial systems more accountable.
  • 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.

Governing of the RTI

The Right to information in India is governed by two major bodies:

  1. 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.
  2. 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.

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.

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

  • Not an absolute right:  The RTI and Right to Privacy are 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.
  • 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).
  • 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 an application.
  • Only information already available on record is accessible: The RTI Act provides access only to that information that existent and is available in records of the public authorities.
  • 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.
  • 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.
  • Information relating to Intellectual Property and trade secrets: Any information, including commercial confidence, trade secrets or intellectual property cannot be disclosed.

Way Forward

  • Speedy disposal: The increasing backlog of cases is exacerbated by the fact that most Commissions are functioning at reduced capacity.
  • Prioritization of cases: There should be a prioritization of cases dealing with information related to life and liberty.
  • 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.

 

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RTI – CIC, RTI Backlog, etc.

Supreme Court launches online RTI Portal

Note4Students

From UPSC perspective, the following things are important :

Prelims level: RTI

Mains level: Online dispensation of RTI

The Supreme Court has launched an online portal that will help citizens file and access applications under the Right to Information (RTI) Act in matters related to the court

What is the online RTI portal?

  • The online RTI portal has been initiated to make it convenient for people to access information about the Supreme Court.
  • So far, RTI applications at the Supreme Court had to be filed only via post.
  • Various public interest litigation (PILs) had been filed before the Supreme Court seeking an online RTI portal for the Court.
  • The online portal is likely to streamline responses of the Supreme Court under the Right to Information Act.

How does the online portal work?

  • The online portal can be accessed at a dedicated url.
  • Essentially, the process of filing an RTI in the Supreme Court is the same as how one normally files the application.
  • This web portal can be used only by Indian citizens to file RTI applications, first appeals and to make payment for fees, and copying charges, under the Right to Information Act, 2005 (RTI Act).
  • An applicant must first register themselves in the web portal.

Fees prescribed

  • The applicant can pay the prescribed fee through internet banking, credit/debit card of Master/Visa or UPI.
  • The fee per RTI application is ₹10.
  • Any applicant who is Below Poverty Line (BPL) is exempted to pay the application fee under the RTI Rules, 2012.

Expected time for response

  • By law, RTIs must be replied to within 30 days.
  • In fact, in life and death cases, RTIs must be responded to within 48 hours.

Back2Basics: 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.

 

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RTI – CIC, RTI Backlog, etc.

Central Information Commission (CIC) and The RTI

Note4Students

From UPSC perspective, the following things are important :

Prelims level: CIC and RTI

Mains level: Central Information Commission, and issues with the effectiveness of Right to Information Act

Information

Context

  • The most vital mandate of the Central Information Commission, the apex body under India’s transparency regime, is to decide the disclosure or the non-disclosure of information. But the commission has seemingly relinquished this primary duty in cases of larger public importance.

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All you need to know about Central Information Commission (CIC)

  • Chief Information commissioner (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.
  • Composition: 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.
  • Appointment: 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.
  • Office term: 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.

Information

Procedure of RTI and the role of CIC

  • Provision to File and application and seek guaranteed reply: Citizens can file applications under the Right to Information Act with any public body and are guaranteed a reply from the public information officer of that public body within 30 days.
  • Provision of appeal in case of dissatisfaction:
  • In case of a no reply or dissatisfaction with the response, the citizen can file an appeal at the departmental level and then a second and final appeal with the Information Commission.
  • Each State has its own State Information Commission to deal with second appeals concerning State bodies. At the Centre, it is the Central Information Commission (CIC).

Information

How RTI amendment, 2019 has changed CIC?

  • Before the amendment to the Until the 2019 amendment to the RTI Act, Information Commissioners (ICs) appointed to the CIC were equal in status to the Chief Election Commissioner, and that of a Supreme Court judge. They had a five­-year fixed term and terms of service.
  • After the amendments of 2019, the Centre gave itself powers to change and decide these terms whenever it wished, thereby striking at the independence of the commission and those who man it.

What are the concerns raised over the changed approach of CIC?

  • Decreasing accountability: Records show that not a single order for disclosure has been forthcoming in matters of public importance. The present set of Information Commissioners have together adopted a new jurisprudence that has created additional hurdles in a citizen’s quest for accountability.
  • Systematic ignorance to the mandate of non-disclosure: The Commission has adopted a new way of delegating its mandate to decide cases to the Ministry before it. In most cases, the Ministries reiterate their earlier stand of non­disclosure, most often under vague grounds of national interest.
  • Refusing to its duty: After these public authorities pass fresh orders, which are usually a reiteration of their earlier stand against disclosure, the CIC refuses to accept any further challenge to such orders, therefore, refusing to do its duty of deciding the cases.
  • Ignoring the principle of natural justice: One of the cardinal rules of natural justice is that no one should be a judge in their own cause. However, the commission now allows, or rather wants, the very Ministry that stands accused of violating the RTI Act to act as the judge in their own cause and decide whether a disclosure is necessary.
  • New instruments such as pending cases and stay orders: A case to keep pending for final order or a stay order is unheard of and there is no provision in the RTI Act for the same.
  • Officers have no fear of any penal provisions: Bureaucrats reject RTIs with glee with no fear of facing penal provisions outlined in Section 20 of the RTI Act, knowing fully well that they have a free hand under the Information Commissioners.

Back to basics: 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.

Information

Conclusion

  • Dark clouds surround India’s transparency regime. Citizens have to mount intense pressure on authorities to act and appoint commissioners of integrity. Lawyers have to help willing citizens take matters to court and seek justice.

Mains question

Q. What are the role and functions of Central Information Commission? CIC’s deviance from its duty may undermine citizens’ power of right to information.

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RTI – CIC, RTI Backlog, etc.

Vacancy, Pendency and Ineffectiveness of RTI Act

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Central Information Commission

Mains level: RTI Act,amendments,pending complaints ,Delay in the process, Credibility of the CIC

RTI

Context

  • The number of information officers and first appellate authorities in the Central government has remained stagnant in the last few years. In contrast, the new Right to Information (RTI) applications filed as well as pending applications are increasing every year. Worryingly, the Central Information Commission and State Information Commissions, the final recourse in matters concerning RTI, also face manpower shortage. As a result, appeals and complaints are piling up.

What is Right to Information Act (RTI)?

  • RTI is an act of the parliament that sets out the rules and procedures regarding citizens’ right to information.It replaced the former Freedom of Information Act, 2002.
  • Time bound response: 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.
  • Immediate Information in an urgent petition: In case of a matter involving a petitioner’s life and liberty, the information has to be provided within 48 hours.
  • Digitization of records: 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.

RTI

Implementation of RTI

  • The RTI Act is implemented using a three-level structure.
  1. Public Information Officer: At the first level is the Central Assistant Public Information Officer/Central Public Information Officer (CAPIO/CPIO). Once an RTI query reaches the CAPIO/CPIO, they are expected to reply within 30 days.
  2. First Appellate Authority (FAA): If the reply is not satisfactory or does not arrive on time, a first appeal can be made to the First Appellate Authority (FAA).
  3. Central Information and State Information Commissions: If the FAA does not answer or if its answer is not satisfactory, the Central Information and State Information Commissions can be approached.

What are the vacancy related issues?

  • Low Performance of Information Commissions: A report released in October by the Satark Nagrik Sangathan, titled ‘Report Card on the Performance of Information Commissions in India,2021-22’,states that the number of appeals and complaints pending before the Central and State Information Commissions as of June 30, 2022 was 3,14,323. The figure is based on data gathered from 26 Information Commissions obtained through 145 RTI applications.
  • Increase in the pending appeals: There is an Increase in the number of pending appeals and complaints from 2.18 lakh to3.14 lakh in the last three years.
  • Leading states in pending complaints: Maharashtra tops the list with nearly 1 lakh appeals and complaints pending followed by Uttar Pradesh (44,482) and Karnataka (30,358). Data were not available for Tamil Nadu State Information Commission. The Commissions in Jharkhand and Tripura were defunct.
  • Substantial delay in reply: The Sangathan assumed that appeals and complaints would be disposed of in a chronological order. It would take the West Bengal State Information Commission 24 years and 3 months to dispose of a complaint filed on July 1, 2022. A similar analysis in Odisha and Maharashtra showed that it would take five years. Only Meghalaya and Mizoram showed no waiting time(not plotted on the tree map).

RTI

What is the recent amendment?

  • Parity with CEC broken: So far, the CIC received the same salary and perks as that of the Chief Election Commissioner or a judge of the Supreme Court.
  • Now on par with Cabinet Secretary: The new rules make the CIC an equivalent of the cabinet secretary and central information commissioners the same as secretary to the government in terms of salary. In the states, the downgrading will be to the level of a secretary to the government, and additional secretary respectively.
  • Tenure: The tenure has been reduced from 5 years to 3.
  • Power of ICs undermined: The CICs and ICs at both the Centre and the states have the power to review the functioning of government public information officials, and intervene on behalf of citizens seeking information about decisions of the government. This stands undermined.
  • Lack of enforcing powers: these officials have zero powers to enforce their orders, except the imposition of a fine for non-compliance.
  • Authority exercised: Over the years, government departments coughed out information because they were seen in the same league and of the same authority as the CEC and Supreme Court judges.

RTI

Conclusion

  • The RTI has unquestionably proved to be one of the significant milestones and a major step towards ensuring the participatory and transparent development process in the country. Dilution of RTI is like downgrading the participation of citizens in public affairs. Government should strengthen the RTI instead of weakening.

Mains Question

Q. Discuss the dilution of RTI through 2019 amendments. How vacancies affect the time bound replies under the RTI Act 2005?

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RTI – CIC, RTI Backlog, etc.

3 Lakh RTI Pleas pile up across India

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Right to Information

Mains level: Read the attached story

rti

A good 17 years after India got the Right to Information (RTI) Act, the transparency regime in the country remains a mirage with nearly 3.15 lakh complaints and appeals pending with 26 information commissions across India.

RTI Pendency in India

  • According to a report by Satark Nagrik Sangathan, the backlog of appeals or complaints is increasing in commissions every year.
  • The number of appeals and complaints pending in 2021 was 2,86,325 with data from 26 commissions and in 2022, it was 3,14,323.
  • The highest number of pending cases was in Maharashtra at 99,722, followed by UP at 44,482, Karnataka at 30,358, the Central Information Commission at 26,724 and Bihar at 21,346.

What is the Right to Information?

  • RTI is an act of the parliament that 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 a 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.

What led to the introduction of RTI in India?

There has been a variety of internal and external pressures on governments to adopt RTI.

  • Corruption and scandals: The crisis was brought into force due to a lack of transparency in the working of the government.
  • 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.
  • International pressure: The World Bank, the IMF and others have pressed countries to adopt laws to reduce corruption and to make financial systems more accountable.
  • 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.

Governing of the RTI

The Right to information in India is governed by two major bodies:

  1. 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.
  2. 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.

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.

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

  • Not an absolute right:  The RTI and Right to Privacy are 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.
  • 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).
  • 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 an application.
  • Only information already available on record is accessible: The RTI Act provides access only to that information that existent and is available in records of the public authorities.
  • 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.
  • 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.
  • Information relating to Intellectual Property and trade secrets: Any information, including commercial confidence, trade secrets or intellectual property cannot be disclosed.

Challenges in exercising RTI

  • 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.
  • 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.
  • 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.
  • Limited ambit of RTI: While the office of the CJI is now under the RTI’s ambit, the CBI is exempt.
  • 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.

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.

Way Forward

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.

 

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RTI – CIC, RTI Backlog, etc.

RTI Act

Note4Students

From UPSC perspective, the following things are important :

Prelims level: CIC

Mains level: Paper 2- Challenges facing RTI

Context

Amidst renewed concern over its functioning across states, the Right to Information Act (RTI) is set to complete 17 years this October.

Issues facing RTI

  • Backlog of appeals: Issues include a huge backlog of second appeals, lengthy wait time for hearings, hesitancy in posting penalties and increasing opacity in the working of the commissions.
  •  As on June 30, 2021, 2.56 lakh appeals were pending with 26 information commissions in the country.
  • CICs downgraded rank: Any serious RTI query or one which concerns more than one government department requires intervention by higher officials, but it is the PIOs from junior ranks who attend hearings and are often clueless.
  • Often, it requires a notice to higher authorities, in some cases, the secretary of the department, to elicit the right answer.
  •  With CICs downgraded in rank, there will be fewer and fewer notices served to the heads of departments and senior officers to appear and answer queries.
  • Vacancies: The commissions have been plagued with vacancies, poor choice of commissioners, untrained staff and a non-cooperative set of public information officers (PIOs).
  • Threat to some RTI activists: Apart from the PIOs’ general inexperience and unprofessionalism, comes the threat to some RTI activists who seek information to expose corruption.
  • According to the Commonwealth Human Rights Initiative (CHRI), across India, 99 RTI activists have lost their lives, 180 assaulted and 187 were threatened since 2006.
  • Political proclivity: The attitude of a few commissioners going public with their political proclivities is another cause for concern.

Way forward

  • Training of officials: The Indian information law, rated as one of the strongest in the world, needs to be bolstered by raising awareness amongst the people and organising rigorous training of government officials.
  • Code of conduct: A code of conduct must be evolved for the central and state information commissioners.
  • It is imperative for the commissioners to keep a strict distance from government heads and officialdom.
  •  A strong political system is a must for the RTI regime to flourish.
  • It is imperative to ensure freedom of the press and democratic institutions, punish errant officials and maintain complete autonomy of the information commissions, in the interest of the people and the nation at large.

Conclusion

As India emerges as a global power, the implementation of legislation like the RTI Act will be under the constant scrutiny of the comity of nations.

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RTI – CIC, RTI Backlog, etc.

RTI Act and Armed Forces

Note4Students

From UPSC perspective, the following things are important :

Prelims level: RTI Act

Mains level: Exemptions to the RTI

Veterans of the Indian Armed Forces have urged PM against exempting defense services from purview of RTI (Right to Information) Act, 2005.

Why in news?

  • Last year, late CDS Rawat had urged the government making a pitch for defence services to be exempted from the RTI Act.
  • He had stated that none of the Central Armed Police Forces (CAPF) are under its purview and defence services, being even more sensitive, should be fully exempted too.

What is RTI?

  • 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.

Constitutional status of RTI

  • 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.

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’s functioning.
  • 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.

Why do Veterans want RTI?

  • The RTI has remained a powerful tool with the veterans and serving community to obtain information and documents concerning their service and pensioner issues.
  • RTI Act has ensured maximum transparency in official establishments dealing with such cases.
  • Even innocuous documents such as medical board proceedings concerning disabled soldiers and old service records of veterans are only made available through the RTI Act.
  • Requesting that defence services are not be placed in Schedule 2 of the RTI Act, 2005, the lobby said that adequate protection is already available in Sections 8 and 9 of the Act.
  • Armed forces can hold back information related to operational and security-related issues.

Necessity for RTI in armed forces

  • Any such move will be a blow to transparency and will lead to an exponential increase in litigation and grievances.
  • And any irregularities in defence procurements would also go under the carpet, besides massive discrepancies in promotions.
  • Already they are so opaque and have faced so many strictures by the courts.
  • Denying such a right of a powerful public-oriented tool to military personnel, veterans, military widows and their families would place them at a sharp disadvantage compared to citizens.
  • This would also result in litigation blast with affected persons approaching judicial forums for minor issues.

 

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RTI – CIC, RTI Backlog, etc.

PM-CARES

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Various funds mentioned in the newscard

Mains level: Right to Information Act and its limitations

We all know that the Prime Minister’s Citizen Assistance and Relief in Emergency Situations (PM CARES) Fund doesn’t come under the ambit of Right to Information (RTI). This oped seeks to discuss certain aspects of this issue.

Present context

  • In a recent affidavit, the Delhi High Court was informed that the PM CARES Fund is not a Government of India fund and that the amount collected by it does not go to the Consolidated Fund of India is strange.
  • This petition is seeking the PM-CARES fund to be declared as the “State” under Article 12 of the Constitution.

Intriguing facts about PM-CARES fund

  • PM CARES has been created not by law, not by notification, but by the mere creation of a webpage, and set up last year in March to raise funds for those affected by the COVID-19 pandemic.
  • The page lists its structure, functions and duties in an arbitrary manner. The official appeals for funds are made under the national emblem.
  • The most significant lie of this sworn statement is that the Government has no control over the Fund.

What is the case?

  • The PM-CARES Fund was not subject to CAG audit since the Supreme Court regarded it as a public charitable trust.
  • It is not under public scrutiny. Also contributions to it were 100% tax-free.
  • It is accused that there was statutory fund already in existence under the Disaster Management Act of 2005 to receive contributions to finance the fight against a calamity.

What is RTI?

  • 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.

About PM CARES Fund

  • The PM CARES Fund was created on 28 March 2020 following the COVID-19 pandemic in India.
  • The fund will be used for combat, containment and relief efforts against the coronavirus outbreak and similar pandemic like situations in the future.
  • The PM is the chairman of the trust. Members will include the defence, home and finance ministers.
  • The fund will also enable micro-donations. The minimum donation accepted is ₹10 (14¢ US).

The other funds

(1) National Disaster Response Fund (NDRF)

  • The statutorily constituted NDRF was established under the Disaster Management (DM) Act of 2005.
  • The NDRF is mandated to be accountable, and answerable under the RTI Act, being a public authority, and auditable by the Comptroller and Auditor General of India.

(2) Disaster Response Fund

  • The DM Act also provided for a Disaster Response Fund — state and district level funds (besides the national level).
  • It also collects and uses the donations at the local level, with mandatory transparency and audit provisions.

(3) Prime Minister’s National Relief Fund

  • There is the PMNRF operative since the days of Jawaharlal Nehru. It was established with public contributions to assist displaced persons from Pakistan.
  • The resources are now utilised primarily to render immediate relief to families of those killed in natural calamities and to the victims of the major accidents and riots.
  • However, it has the President of India and the Leader of Opposition also as trustees.

Issues over PM-CARES Fund

  • No defined purpose: It is deliberately ignored while a new, controversial, unanswerable, and ‘non-accountable vehicle is created; its character is not spelt out till today.
  • Non-accountable: The government seems to consider statutory provisions for enquiry and information seeking to be embarrassing obstacles.
  • Centralization of donations: It centralises the collection of donations and its utility, which is not only against the federal character but also practically inconvenient. The issue is seeming, the trusteeship of the fund.

Questions and gaps

  • Law/statute: The PM CARES Fund was neither created by the Constitution of India nor by any statute.
  • Authority: If that is the case, under what authority does it use the designation of the Prime Minister, designated symbols of the nation, the tricolour and the official (gov.in) website of the PMO, and grant tax concessions through an ordinance.
  • Collection and dispensation: The amount received by the Fund does not go to the Consolidated Fund of India. If it goes to the CFI, it could have been audited by the CAG.
  • Uncontrolled: The This Trust is neither intended to be or is in fact owned, controlled or substantially financed by any instrumentality of the any govt even being chaired by the PM.

Issue over tax benefits

  • Income tax: An ordinance was promulgated to amend Income Tax Act, 1961 and declare that the donations to the PM CARES Fund “would qualify for 80G benefits for 100% exemption”.
  • CSR Funds: It will also qualify to be counted as Corporate Social Responsibility (CSR) expenditure under the Companies Act, 2013.
  • Foreign donations: It has also got exemption under the FCRA [Foreign Contribution Regulation Act] and a separate account for receiving foreign donations has been opened.

What can be inferred from all these?

  • The Centre now considers it as another obstacle and has created a new trust with the Prime Minister and his Ministers only.
  • The manner in which the PM CARES Fund was set up — with its acronym created to publicise the point that the PM cares for people — shows a bypassing of the statutory obligations of a public authority.

Query and response: Again ironical

  • After initial denials, the Government has conceded it to be a public charitable trust, but still maintains that it is not a ‘public authority’.
  • The point is that the PMO operates the Fund, but says it cannot supply any information about the PM CARES Fund because it is not a public authority.

Severe interpretations: Is it an Office of Profit?

  • If the PM CARES Fund is unconnected with the Government, then the Fund could become an office of profit.
  • And that could disqualify him and the three Ministers from holding those constitutional offices.

Conclusion

  • In order to uphold transparency, the PM CARES Fund should be declared as a Public Authority under the RTI Act, and all RTI queries answered truthfully.
  • The fund should be designated as a “public authority” under Section 2(h) of the RTI Act.

 

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RTI – CIC, RTI Backlog, etc.

15 Years of Right to Information

Note4Students

From UPSC perspective, the following things are important :

Prelims level: RTI

Mains level: Pendency of RTI cases

Fifteen years after the Right to Information (RTI) Act came into force; more than 2.2 lakh cases are pending at the Central and State Information Commissions, which are the final courts of appeal under the transparency law.

Try this question:

Q.“RTI is a tool for empowering ordinary citizens and changing the culture of governance in India.” Discuss.

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 RTI

The Right to information in India is governed by two major bodies:

  1. 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.
  2. 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.

Fundamental status of RTI

  • RTI is a fundamental right for every citizen of India.
  • Since RTI, is implicit in the Right to Freedom of Speech and Expression under Article 19 of the Indian Constitution, it is an implied fundamental right.

Limitation to RTI

  • Information disclosure in India is restricted by the Official Secrets Act 1923 and various other special laws, which the new RTI Act relaxes.
  • RTI has proven to be very useful but is also counteracted by the Whistle Blowers Protection Act, 2011.

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Upholding transparency in governance

Note4Students

From UPSC perspective, the following things are important :

Prelims level: RTI

Mains level: Paper 2- RTI and issue of transparency

The article discusses the issue of growing lack of transparency in the functioning of government.

Issues with Transparent Governance in India

1) Electoral bond

  •  They were introduced in February 2017— they allowed anonymous donations to political parties and, therefore, protected the privacy of the donors.
  • The Election Commission of India (ECI) criticised the opacity of this financial mechanism.
  • The ECI told the government that this arrangement would prevent the state from ascertaining whether a political party has taken any donation in violation of provisions under Section 29B of the Representation of the People Act.
  • Section 29B prohibits the political parties from taking donations from government companies and foreign sources.
  • Electoral bonds also made it impossible to check whether a company was giving to parties more than what the Companies Act (2013) permitted, that is 7.5 per cent of the net average profit of the three preceding financial years.

2) Sealed envelopes

  • Sealed envelope has become a modus operandi in several Indian institutions, including the Supreme Court (SC).
  • In the case of political funding by electoral bonds or otherwise, a three-judge bench in 2019 directed political parties to submit the details of donations received to the ECI in sealed cover.
  • The Assam administration had to show the progress it was making in the implementation of the National Register of Citizens by submitting reports in sealed covers.

3) Undermining RTI

(A) Reluctance to fill vacancies

  • The government did not appoint a Chief Information Commissioner for a year after the incumbent retired in August 2014.
  •  Similaryly, government did not fill vacant information commissioner posts in the Central Information Commission (CIC) between 2016 and 2018.
  • The backlog of pending appeals had reached 30,000 cases in late 2019 as the CIC has become a rather dysfunctional body.

(B) Government refusing to disclose infromation

  • The government refused to disclose information which was previously available under the RTI Act.
  • Queries about phone tapping are not responded to anymore.
  • In 2016-17, the home and finance ministries rejected close to 15 per cent of the applications they received while the RBI and public sector banks rejected 33 per cent.
  • The RBI, for instance, refused to give any information about the decision-making process that led to demonetisation.

(C) Limiting the powers of CIC

  • During the 2019 Monsoon Session of Parliament, government amended the RTI Act to limit the power of the CIC.
  • The five-year fixed tenure for the Chief Information Commissioner and information commissioners was abolished.
  • Their salaries were not fixed any more,  but notified separately by the government.

4.Diluting Whisleblower’s Protection Act

  • Whistleblowers can now be prosecuted for possessing the documents on which the complaint has been made.
  • Issues flagged by them have to be in “public interest”.
  • Issues flagged should not be “affecting the sovereignty and integrity of India”, related to “commercial confidence” or “information received in confidence from a foreign government.

5.Issues with statistical information

  • The National Statistical Commission and the Chief Statistician of India faced a credibility crisis when the new GDP series was released.
  • Similarly, the National Crime Records Bureau has been affected by delays (its 2017 report was released in October 2019) and deletions.
  • The National Sample Survey Office has also raised several concerns.

Conclusion

Transparency is not only necessary for maintaining a democratic polity, it is also necessary for making the economy work. Government actions must be informed by this fact.

B2BASICS

Electoral bond

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Resurrecting the right to know

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Not much

Mains level: Paper 2- People's right to know

This article analyses the importance of peoples’ right to know and instrumental role judiciary played in harmonising it with the Official Secrets Act 1923.

Context

  • A High Level Committee (HLC) chaired by a retired judge of the Gauhati High Court was constituted by the Home Ministry through a gazette notification.
  • Its mandate was, among others, to recommend measures to implement Clause 6 of the Assam Accord and define “Assamese People”.
  • The HLC finalised its report by mid-February 2020 and submitted it to the Assam Chief Minister and through him to the Central government.
  • With the Central government apparently “sitting idle” over the report, the All Assam Students’ Union (AASU), which was represented in the HLC, released the report.

The right to know

  • The right to know was recognised nearly 50 years ago and is the foundational basis or the direct emanation for the right to information.
  • In State of U.P. v. Raj Narain (1975), the Supreme Court carved out a class of documents that demand protection even though their contents may not be damaging to the national interest.
  • Court held that “the people of this country are entitled to know the particulars of every public transaction in all its bearing”.
  • This view was endorsed in S.P. Gupta v. President of India (1981) and a few other decisions.
  • In Yashwant Sinha v. Central Bureau of Investigation (2019), the Supreme Court referred to the decision of the U.S. Supreme Court in New York Times v. United States (1971) wherein court declined to recognise the right of the government to restrain publication of the Pentagon Papers.
  • Our Supreme Court held that a review petition based on three documents published by The Hindu was maintainable since the provisions of the Official Secrets Act, 1923 had not been violated.
  • The SC held that there is no provision by which Parliament had vested power in the government either to restrain the publication of documents marked as secret or from placing such documents before a court.
  • Section 8(2) of the Right to Information Act, 2005 provides that a citizen can get a certified copy of a document even if the matter pertains to security or relationship with a foreign nation if a case is made out.
  • Therefore, it is clear that the right to know can be curtailed only in limited circumstances and if there is an overriding public interest.

Consider the question “Analyse the importance of citizens’ right to know and how the judiciary harmonised the peoples right to know with the Official Secrets Act 1923? “

Conclusion

We must keep in mind observation made by the Supreme Court in S.P. Gupta: “If secrecy were to be observed in the functioning of government and the processes of government were to be kept hidden from public scrutiny, it would tend to promote and encourage oppression, corruption and misuse or abuse of authority, for it would all be shrouded in the veil of secrecy without any public accountability.”

B2BASICS

Official secrets act

  • OSA has its roots in the British colonial era and was originally known as The Indian Official Secrets Act (Act XIV), 1889.
  • The act was primarily mandated to gag the voice of a large number of newspapers that came up in several languages, and were opposing the Raj’s policies, building political consciousness and facing police crackdowns and prison terms.
  • The act was amended and made more stringent in the form of The Indian Official Secrets Act, 1904, during Lord Curzon’s tenure as Viceroy of India.
  • In 1923, a newer version was notified. The Indian Official Secrets Act (Act No XIX of 1923) was extended to all matters of secrecy and confidentiality in governance in the country.
  • It was further amended after India got independence in 1951 and 1967. The act in its present form deals with two aspects — spying or espionage and disclosure of other secret information of the government.
  • Secret information can be any official code, password, sketch, plan, model, article, note, document or information. Under the act both the person communicating the information, and the person receiving the information, can be punished.

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RTI – CIC, RTI Backlog, etc.

PM-CARES is not a public authority under RTI Act

Note4Students

From UPSC perspective, the following things are important :

Prelims level: PM-CARES, Public Authority under RTI

Mains level: RTI issues

The PMO has refused to disclose details on the creation and operation of the PM-CARES Fund, telling a Right to Information applicant that the fund is “not a public authority” under the ambit of the RTI Act, 2005.

Practice question for mains:

Q. The PM-CARES fund is an old wine in a new bottle. Discuss its feasibility and how it is different in context to the PMNRF.

About PM-CARES Fund

  • The fund will be a public charitable trust under the name of ‘Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund’.
  • The PM is Chairman of this trust and members include the Defence Minister, Home Minister and Finance Minister.
  • Contributions to the fund will qualify as corporate social responsibility (CSR) spending that companies are mandated to make.
  • The Fund accepts micro-donations as well.

Not a public authority

  • The PMO cited a Supreme Court observation that indiscriminate and impractical demands under RTI Act for disclosure of all and sundry information would be counterproductive.
  • PM-CARES Fund is not a Public Authority under the ambit of Section 2(h) of the RTI Act, 2005.
  • However, relevant information in respect of PM-CARES Fund may be seen on its website.

Then, what makes an authority, Public?

The relevant section of the RTI Act defines a “public authority” as “any authority or body or institution of self-government established or constituted —

  • by or under the Constitution;
  • by any other law made by Parliament;
  • by any other law made by State Legislature;
  • by the notification issued or order made by the appropriate Government — and includes any (i) body owned, controlled or substantially financed; (ii) NGO substantially financed, directly or indirectly by funds provided by the appropriate govt.

Arguments against PM-CARES

  • The fund carries a public name, the composition of the trust, control, usage of an emblem, government domain name etc. that signifies it as a public authority.
  • PM is the ex-officio chairman of the Trust, while three cabinet ministers are ex-officio trustees.
  • The composition of the trust is enough to show that Government exercises substantive control over the trust, making it a public authority.

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RTI – CIC, RTI Backlog, etc.

Ruling against judicial transparency

Note4Students

From UPSC perspective, the following things are important :

Prelims level: Not much.

Mains level: Paper 2- Transparency in judiciary under RTI

Context

A recent Supreme Court verdict has barred citizens from accessing court records under the RTI Act.

What does the judgement say?

  • No access to court records through RTI: In its recent decision, in the Chief Information Commissioner v. High Court of Gujarat case, the Supreme Court, regrettably, barred citizens from securing access to court records under the Right to Information (RTI) Act.
  • Access to record through rules of High Courts: Instead, the court held that such records can be accessed only through the rules laid down by each High Court under Article 225 of the Constitution.
    • The Registry of the Supreme Court was litigating a similar case (Registrar, Supreme Court of India v. R.S. Misra) before the Delhi High Court for several years.
  • Separating the administrative and judicial side: Though the particular decision taken earlier this month does not preclude the application of the RTI Act to the administrative side of the court, it does firmly slam the door shut on accessing, under the RTI Act, the millions of court records filed on the judicial side.

Why access to judicial records matters?

  • For holding the police accountable: A significant number of decisions taken by the courts influence our daily life. Every prosecution before a criminal court is essentially an opportunity to hold the police accountable just as every writ petition is an opportunity to hold the government accountable.
  • Opportunity to learn about commercial translations: A significant number of commercial lawsuits are opportunities to learn more about corporations and the manner in which commercial translations are executed in the country.
  • Policy decision impacted by the judiciary in PIL: In cases of public interest litigation, where the courts indulge in policymaking on the basis of the report of an amicus curiae or an expert committee set up by judges.
    • The reports of these committees are not accessible to third parties, though they may be impacted by these decisions, because they form part of the court record and are hence outside the purview of the RTI Act.
  • No question of confidentiality: There is no question of arguing for the confidentiality of these records because it is by now a well-recognised principle that all judicial proceedings must take place in open court, unless prohibited by law for reasonable purposes.

The overriding section of RTI act- Section 22

  • The Supreme Court’s verdict in this case hinged on Section 22 of the RTI Act which states that the RTI Act shall override any other law to the extent that the latter is inconsistent with the former.
  • The Section states: “Act to have an overriding effect — The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”
  • Non-obstante clause: A clause such as Section 22 is known as non-obstante clause and is a common drafting device used by legislatures to permit certain actions regardless of what is mentioned in existing legislation.
  • Drafters aware of the possible conflict: The wording of the provision reveals that the drafters of the RTI Act were clearly aware that it may conflict with other laws and wanted to ensure that the procedure under the Act overruled the procedure in existing legislation.
    • Despite this crystal-clear wording of Section 22, the Supreme Court and, on previous occasions, the High Courts, have concluded exactly the opposite.

Three steps to the courts reasoning 

  • No inconsistency: It concludes that there is no inconsistency between the RTI Act and the court rules.
    • This is factually incorrect because the Gujarat High Court Rules unlike the RTI Act require the submission of an affidavit stating the purpose of seeking copies of the pleadings.
    • The RTI Act requires no reasons to be provided while seeking information.
  • Issue over non-obstante clause: The court argues that “A special enactment or rule cannot be held to be overridden by a later general enactment simply because the latter opens up with a non-obstante clause unless there is a clear inconsistency between the two legislations.”
    • But that is exactly the point of an non-obstante clause.
    • The accompanying factual inaccuracy, is its conclusion that there is no inconsistency between the Gujarat High Court rules and the RTI Act.
  • Section 22 can’t be read to imply repeal of the laws: The third limb, of the court’s reasoning was its conclusion that Section 22 could not be read in a manner to imply repeal of other laws, such as the Gujarat High Court Rules.
    • The court states that if the intention was to repeal another law, the legislature would have specifically stated so in the RTI Act, as was done in Section 31 when the RTI Act repealed the previous Freedom of Information Act, 2002.
    • This reasoning is bewildering because it would render non-obstante clauses entirely useless.

What is the issue arising out of this judgement?

  • From a citizen’s perspective, this decision is problematic for two reasons.
    • Not all High Courts allow access to all: Most High Court Rules allow only parties to a legal proceeding to access the records of a case. Some High Courts may allow third parties to access court records if they can justify their request.
    • This is entirely unlike the RTI Act, where no reasons are required to be provided thereby vastly reducing the possibility of administrative discretion.
    • Logistical difficulties: The second reason this judgment spells bad news is that unlike the RTI Act, the procedure under the Rules of most High Courts is challenging from a logistical perspective, apart from lacking in any significant safeguards.
    • An application under the RTI Act can be made by post, with the fee being deposited through a postal order.
    • The procedure is simple enough to enable most citizens to file RTI applications by themselves.
    • Not so for the procedure under the High Court Rules.
    • Most courts require the physical filing of an application: Most High Courts and the Supreme Court require the physical filing of an application with the Registry, and a hearing before a judge to determine whether records should be given.

Conclusion

The Supreme Court fails to understand that the judiciary’s track record of transparency is vastly inferior when compared to other arms of the state. In today’s world where every public institution is striving to become more transparent, the continued resistance from the judiciary to making itself transparent in a meaningful manner will have an eroding effect on its legitimacy.

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