Right to information act, 2005

“A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce, or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance; and a people who mean to be their own Governors must arm themselves with the power which knowledge gives”[1]

INTRODUCTION:

Information is the currency that every citizen requires to participate in the life and governance of society. Executive at all levels attempts to withhold information to increase its scope for control, patronage, and the arbitrary, corrupt and unaccountable exercise of power. Therefore, demystification of rules and procedures, complete transparency and pro-active dissemination of this relevant information amongst the public is potentially a very strong safeguard against corruption. Ultimately the most effective systemic check on corruption would be where the citizen herself or himself has the right to take the initiative to seek information from the state, and thereby to enforce transparency and accountability.

Access to Information (ATI) is an essential step in ensuring transparency and accountability in government systems and processes. If transparency and accountability are the imperatives for sustaining democratic governance, access to information is a vital instrument of societal transformation. When a government is transparent, there is less chance for corruption and more room for accountability. That’s why Freedom of Information Acts (FOIAs) are becoming standard good practice in the international arena.

ORIGIN AND TRENDS:

The first RTI law was enacted by Sweden in 1766, followed by the US, which enacted its first law in 1966 and then by Norway in 1970. By 1990, the number of countries with FOI laws climbed to 13. A big step forward was the EU Charter of Fundamental Rights in 2000, which included both freedom of expression and the right of access to documents. The Right to information gained power when Universal Declaration of Human Rights was adopted in 1948 providing everyone the right to seek, receive, information and ideas through any media and regardless of frontiers.[2] Also The International Covenant on Civil and Political rights 1966 says that “Everyone shall have the right to freedom of expression, the freedom to seek and impart information and ideas of all kind, regardless of frontiers.[3]

By 2010, more than 85 countries have national-level RTI laws or regulations in force including the major developing countries like China and India. Of all these, Mexico has taken the lead with one of the best examples of a well-functioning FOIA in the world. The law passed in 2002 represents a vital element of Mexico’s democratic transition, and became a model worldwide. Handling over 200,000 requests in its first five Years, have resulted in Mexico setting a new international standard for transparency legislation.

RIGHT TO INFORMATION IN INDIA:

Right to Information is an integral part of the freedom of speech and expression enshrined in Article 19(1)(a) of the constitution, which is regarded as the first condition of liberty. It occupies preferred position in the hierarchy of liberties giving succour and protection to other liberties. The expression “freedom of speech and expression” in Article 19(1)(a) has been held to include the right to acquire information and disseminate the same. It includes the right to communicate it through any available media whether print or electronic or audio-visual, such as, advertisement, movie, article or speech, etc.

The Right of information is an inalienable component of freedom of speech and expression guaranteed by Article 19(1) (a) of Indian constitution.[4] Beside Article 19(1) (a), the other articles which give right to information under Indian constitution are Articles 311(2) and 22(1). Article 311(2) provides for a govt. servant to know why he is being dismissed or removed or being demoted and representation can be made against the order. By way of Article 22(1) a person can know the grounds for his detention. According to Justice B N Srikrishna – “Right to information emerges from right to personal liberty guaranteed by article 21 of constitution.”[5]

In order to promote, transparency and accountability in administration, Parliament passed “Right to Information Bill, 2004 on 15th June, 2005, “The Right to Information Act” was notified in the Gazette of India on 21st June, 2005, after repealing the Freedom of Information Act, 2002. The “Right to Information Act” has become fully operational from 12th October, 2005 so as to enable a citizen of India to secure access to information under the control of Public Authorities.[6] The RTI Act mandates timely response to citizen requests for government information. It applies to all States and Union Territories of India, except the State of Jammu and Kashmir, which is covered under a State-level law. Prior to the Act being passed by the Parliament, the RTI Laws were first successfully enacted by the state governments of Tamil Nadu (1997), Goa (1997), Rajasthan (2000), Karnataka (2000), Delhi (2001), Maharashtra (2002), Madhya Pradesh (2003), Assam (2002) and Jammu and Kashmir (2004). Some of these State level enactments have been widely used. While the Delhi RTI Act is still in force, Jammu & Kashmir has its own Right to Information Act of 2009, the successor to the repealed J&K Right to Information Act, 2004 and its 2008 amendment.

SALIENT FEATURES OF RIGHT TO INFORMATION ACT, 2005:

• The term Information includes any mode of information in any form of record, document, e-mail, circular, press release, contract sample or electronic data etc.
• Any citizen (excluding the citizens within J&K) may request information from a ‘public authority’ (a body of Government or ‘instrumentality of State’) which is required to reply expeditiously or within thirty days.
• Citizens have a right to: request any information (as defined); take copies of documents; inspect documents, works and records; take certified samples of materials of work; and obtain information in the form of printouts, diskettes, floppies, tapes, video cassettes or in any other electronic mode.
• The Act relaxes the Official Secrets Act of 1889 which was amended in 1923 and various other special laws that restricted information disclosure in India. In other words, the Act explicitly overrides the Official Secrets Act and other laws in force as on 15 June 2005 to the extent of any inconsistency.
• Applicant can obtain Information within 30 days from the date of request in a normal case. In specific circumstances Information can be obtained within 48 hours from time of request. If it is a matter of life or liberty of a person.
• The Act also requires every public authority to computerise 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. The Act, in particular, requires every public authority to publish 16 categories of information. This includes the particulars of its organisation, functions and duties; powers and duties of its officers and employees; procedure followed in the decision making process; norms set for discharge of its functions; rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions; etc.
• The Act enumerates the types of information(s) that are exempted from disclosure.[7] However, these exempted information(s) or those exempted under the Official Secrets Act can be disclosed if public interest in disclosure overweighs the harm to the protected interest.[8] Also, the exempted information(s) would cease to be exempted if 20 years have lapsed after occurrence of the incident to which the information relates.
• Penalty for refusal to receive an application for information or for not providing information is Rs. 250/- per day but the total amount of penalty should not exceed Rs. 25,000/-
• If an applicant is not supplied information within the prescribed time of 30 days or 48 hours, as the case may be, or is not satisfied with the information furnished to him, he may prefer an appeal to the first appellate authority who is an officer senior in rank to the PIO. If still not satisfied the applicant may prefer a second appeal with the Central Information Commission (CIC)/State Information Commission (SIC) within 90 days from the date on which the decision should have been made by the first appellate authority or was actually received by the appellant.

KEY PROVISIONS:

• Section 2(h): Public authorities means all authorities and bodies under the Constitution or any other law, and inter alia includes all authorities under the Central, state governments and local bodies. The civil societies substantially funded, directly or indirectly, by the public funds also fall within the ambit’
• Section 4 (1)(b): Maintain and proactively disclose information.
• Section 6: Prescribes simple procedure for securing information.
• Section 7: Fixes time limit for providing information(s) by PIOs.
• Section 8: Only minimum information exempted from disclosure
• Section 19: Two tier mechanism for appeal
• Section 20: Provides penalties in case of failure to provide information on time, incorrect, incomplete or misleading or distorted information.
• Section 23: Lower courts are barred from entertaining suits or applications. However, the writ jurisdiction of the Supreme Court and high courts under Articles 32 and 225 of the Constitution remains unaffected.

CONCLUSION:

RTI Act introduced in 2005 has proved to be a strong weapon in the hands of people, for ensuring transparency in government departments and containing corruption. It is generally claimed as one of the world’s best law with an excellent implementation track record. It is one of the most empowering and most progressive legislations passed in the post Independent India. Most radical provision of the Act is that the information seeker need not to give any reason for it or prove his Locus standi. From the day the Act came into force, enlightened citizenry had stated using the law by making information requests in order get the police to act or get their entitlements of food grain under public distribution system or expose the corrupt officials.

On the other hand, it suffers from various inadequacies. The act empowers the people to gather information, But illiteracy and lack of awareness surely hinders the objective of the Act. Also, the act lacks necessary teeth for defaulters. In cases where information has been denied without sufficient cause, the penalty is not so harsh enough so as to have a deterrent effect on those who do not want to share information. The task of implementing the law is not without major challenges. Lack of adequate public awareness, especially in rural areas, lack of proper system to store and disseminate information, lack of capacity of the public information officers (PIOs) to deal with the requests, bureaucratic mindset and attitude etc. are still considered as major obstacles in implementation of the law.

Currently, the RTI Act in India is passing through a decisive phase, much more needs to be done to facilitate its growth and development.

[1] James Madison, 1882

[2] Article 19 Universal Declaration of Human Rights (1948)

[3] Article 19 International Covenant on Civil and Political Rights(1966)

[4]Secretary, Ministry of information and broadcasting v Cricket association of West Bengal (AIR1973 SC 106),

Bennet Colman v. UOI (AIR1982 SC 149), SP Gupta v UOI (AIR 1995 2 SCC 161)

[5] Essar Oil Ltd v. Halar Utkarsha Samiti  (AIR 2004 SC 1834)

[6] Rti.gov.in/

[7] Section 8(1) and section 9 RTI Act, 2005

[8] Section 8(2) RTI Act, 2005