POLICY AND PRACTICE OF RIGHT TO INFORMATION IN INDIA

(1)

POLICY AND PRACTICE OF RIGHT TO INFORMATION IN INDIA

Supriyo Ranjan Mahapatra1

Abstract

Right to Information is a basic right of every human being. It has been ostentation in Indian

democracy since the enactment of the Act. The Democracy of India in turn has changed to

accountable and interactive. The citizens can now make sure that their interests and rights

are protected and promoted by the Government. They are consistent with the principles of

public interest and justice. It also promotes accountability and transparency and the

government is under the public scrutiny. There are a number of daunting barriers in

achieving the objective of the Act. Mass of semi literate people who are aware of the law

have an ambiguity about filing the application due to lack of awareness and it has been noted

that PIO are unfamiliar with law and technology and to which in turn leads to lack of

accessing the information by the public.RTI Act is one of the most citizen friendly legislation

ever. It has made both tangible and intangible impact on the system and its people. The

researcher would like to study and understand RTI in its full length and breadth, to examine the present day challenges before the Act ,to analyze the causes and effects of RTI and the factors influencing it ,to bring into limelight possible or alternative solutions for its better functioning in the long run.

Key Words- Right to Information, accountability, transparency, daunting challenges.

(2)

“Democracy must be built through open societies that share information. When there is

information, there is enlightenment. When there is debate, there are solutions. When there is

no sharing of power, no rule of law, no accountability, there is abuse, corruption,

subjugation and indignation”.

--- Atifete Jahjaga , Fourth President of Kosovo.

Right to Information (R.T.I) is a basic right of every human being. It grants the citizens the

legal right to access information held by public authorities, bringing transparency in an

otherwise opaque system. In the case of State of Uttar Pradesh v. Raj Narain and others2, the supreme court of India had observed that “In a government of responsibility like ours,

where all the agents of the public must be responsible for their conduct, there can be but a

few secrets. The people of this country have a right to know every public act, everything that

is done in a public way by their public functionaries. They are entitled to know the

particulars of every public transaction in all its bearings”. Owing to the fact of

accountability and transparency the Indian parliament passed the Bill on ascertaining Right of

public in accessing the information which is “Right to Information Act”, 2005.3 It has been

ostentation in Indian democracy since the enactment of the Act. The Democracy of India in

turn has changed to accountable and interactive. The citizens can now make sure that their

interests and rights are protected and promoted by the Government which is consistent with

the principles of public interest and justice. It also promotes accountability and transparency

and the government is under the public scrutiny.

For about ten years the law has been used extensively by ordinary citizens to demand

different kind of Information’s albeit with the help of civil society groups in many instances.

The law being internationally recognised as being among the most powerful transparency

laws in the world. To the majority of Indians (i.e. literate, illiterate and semi-literate) Right to

Information (R.T.I) is a sense of empowerment, ascertaining the legal right to access

2

AIR 1975 SC865

3

(3)

information in a time-bound manner, punishing the officers for not providing and for

providing wrong information. After the enactment of this act RTI acted as a game changer in

the lives of citizens. They were previously answerable to the government but after the

enactment there was turnout of events and the government were answerable to them. It has

now become a national movement in the nation such as right to education, right to food,

whistle blowers protection bill, Judicial accountability bill, Lokpal and it has further helped

in exposing scandals like Rail gate, Coalgate, 2G, Commonwealth games, Adrash Housing

Society Mining scam in Karnataka and Odisha etc. The research paper deals with the core

achievements of the RTI and its present challenges, repercussions in the dynamic social

scenario. The researcher also brings in suitable suggestions for the better functioning of the

Right to Information (R.T.I). Since this Act has been citizen-centric, it is quite helpful to

citizens in unearthing a lot of matters from the government which was easily hidden on the

plea of protecting the sovereignty and integrity of the country.

Judicial Interpretations: Right to Information & Right to be informed

There has never been an explicit provision for the right to information in the constitution.

However the Supreme Court has interpreted this in a number of decisions under article

19(1)-Freedom of speech and expression. The gradual interpretation of this article by the judiciary

has widened the scope of right to information before the enactment of the Act. In the case of

Bennet Coleman and Co. V. Union Of India4 it was challenged before the supreme court by The Times Of India on account of distribution of the news paper was rationed which led to

the unreasonable restriction on the freedom of press and further that the readers were unable

to read the news papers of their choice. The bench held that it violated the inherent right of

press i.e. to publish and also held that this violation consequently violated the right of readers.

In a Landmark Judgement in Association of Democratic Reforms v. Union Of India5, the high court of Delhi, held that the candidates standing for the elections need to disclose their

past activities which would help the right to information for healthy and transparent elections.

On Further appeal to the supreme court by the union Government. The decision of the high

court was affirmed. The Apex court further ordered the election commission to ask

information to the candidates. Upon aggrieved by the decision of the supreme court

legislature was forced to bring an amendment to Representation of People Act, 1951 to

protect the candidates standing in the election. However this was challenged before the

4

AIR 1973 SC 106

5

(4)

Supreme court in PUCL v. Union Of India 6and the court held that the amendment which ignored the sensitive information about the candidate’s past violated the right to Information

of the voters and it was essential for the voters to know about them in choosing a

representative on their behalf and this amendment to be struck down as it violates the basic

structure of the constitution. In the case of S.P. Gupta v. Union of India7, the Supreme Court

had an opportunity to adjudicate on the appointment of Judges of the Supreme Court and high

court under article 124(2) of the constitution and 217(1) of the constitution respectively.

J.Bhagawati held that the court had to balance public administration in fair administration of

justice against the public interest in confidentiality of certain documents. Judicial discretion

would be exercised so as to promote maximum openness and limit secrecy to the minimum.

A Bird’s Eye View of the RTI Act: Necessitating the Necessity:

The right of Information has been defined in section 2(j)- Right to information" means the

right to information accessible under this Act which is held by or under

the control of any public authority and includes the right to-

(i) inspection of work, documents, records;

(ii) taking notes, extracts or certified copies of documents or records;

(iii) taking certified samples of material;

(iv)obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any

other electronicmode or through printouts where such information is stored in a computer or

in any other device;

Public authority has been defined in section 2(h) as "public authority" means any authority or

body or institution of self-government established or constituted—

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(c) by any other law made by State Legislature;

(d) by notification issued or order made by the appropriate Government, and includes any—

(0 body owned, controlled or substantially financed;

(ii) Non-Government organisation substantially financed, directly or indirectly by funds

provided by the appropriate Government8;

Section 4 of the Act advocates proactive disclosure.9 In section 5,6,7,and 12 to 17 it lays

down the implementation mechanism by way of appointment of public information officers

6

(2003) 4 SCC 399

7

AIR 1982 SC 149

8

(5)

(P.I.Os),appellate officers in all public authorities, while stipulating time limit for disposing

request for information and setting up of information commission in the centre and states.

Obligations of the Information Suppliers: Mandate or Mandatory?

Citizens have a right to Information under the Right to Information Act, 2005, in lieu of

which the state has a obligation to fulfil it by providing the required information to the

information seeker. This is done through the persons defined under the section 2(h) i.e. public

authority who are also called as Public Information Officers (PIOs).The section 2(h) of the

Act defines the term public authority and it has further divided in to two parts, and both of

them are independent to each other. First part includes the body established under the

constitution, under the parliament or state legislature or on notification issued by appropriate

government body owned, controlled or substantially financed. The second part includes the

non-governmental organisations substantially financed, directly or indirectly by funds

provided by the appropriate government. If the second part is fulfilled the first part is not

necessary to be fulfilled. Basically the term authority has been taken from article 12 of the

constitution which reads as-Article 12 defines the term state as used in different article of part

III of the constitution .It says that, unless the context otherwise requires, “the State’’ includes

the Government and Parliament of India and the Government and the Legislature of each of

the States and all local or other authorities within the territory of India or under the control of

the Government of India10. The term state has been interpreted in a number of cases but it has

differed from generation to generation. With the development of the role of state from police

state to welfare state, the state has to perform manifold functions. In lieu of these functions

state has to appoint various agencies to perform the functions on his behalf. In the case of RD

SHETTY V. THE IAAI11, Justice Bhagvati preferred the broader test as suggested by

Justice

Mathew in Sukhdev v. Bhagatram12 case. In this case the court held that if a body is an

agency or instrumentality of government it may be an authority within the meaning of art. 12.

Accordingly it was held that international airport authority which was created under an act of

9

Section 4 of the Act which states as Obligations of public authorities. —(/) Every public authority shall—

(a)

maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated;

10

Article 12 of the constitution of India,1950

11

A.I.R 1979,S.C 1628.

12

(6)

parliament was state within the meaning of article 12. The court for further clarification laid

down the following test to determine whether a body is an agency or instrumentality of the

government.

The test is as follows : -

1. Financial resources of the state is the chief funding source,

2. Existence of deep and pervasive state control,

3. Functional character being governmental in essence, i.e., if the functions of the

corporations are of public importance and closely related to governmental functions,

4. If a department of government is transferred to a corporation,

5. Whether the corporation, enjoys monopoly status which is state conferred or state

Protected.

If any of these five relevant factors are found in a body then that holds authority and is a state

under the ambit of Article 12 of the constitution of India. The Indian Olympic association

was held to be state as registered under the Society’s Registration Act was held to be a public

authority in the case of V.K Mallik v. Indian Olympic Association13 . So it can be concluded

that the term public authority is wider and information’s can be received from them who

discharge public functions.

Public Authorities: Binding their Binding Obligations

The main task of public authorities is that they need to maintain proper record of past events

adding to it all the data needs to be computerised and failing to which the objective of the law

vanishes14.It should also suo motu disclose the information like the particulars of the

organisation, powers and duties of its employees and the rules and regulations governing the

employees. Under the public authorities the P.I.O’S play a pivotal role in providing the

information’s. The duties of P.I.O’s are-

The P.I.O shall deal with requests from persons seeking information and render reasonable

assistance to such persons and in discharge of his duties may seek any other assistance from

other officers. P.I.O should provide reasonable assistance to persons making request orally, to

reduce the same in writing. The request to be disposed within thirty days of its receipt and to

dispose it within 48 hours where life and liberty of a person is involved. On concern of

further fees, rejection of application and availability of a part of information he should inform

13

Appeal no-163/ ICPB/2006,dated 28th November 2006

14

(7)

the same to the applicant and if a third party is involved, shall take in to consideration the

representation made by the third party under section 11.It is also a duty that the information

needs to be provided in the manner sought by the information seeker. If in certain cases

where information is sought from more than one P.I.O’s the first P.I.O should transfer the

same to the other department as soon as possible informing the same to the applicant within

five days of the receipt .The P.I.O to whom the matter is transferred cannot deny on the

grounds of submitting it to him after five days. Section 20(1) of the Act clearly states the

while deciding a complaint or appeal, shall impose penalties on erring PIOs it starts from Rs

250/- a day to maximum of Rs25,000/- and recommend disciplinary action against them on

persistent failure to it15.

Information’s exempted from disclosure:

The Official secrets Act, 1923 is not completely over-ridden because of the implementation

of RTI Act, 2005 rather some of them portions are over-ridden and the rest are covered under

section 8 of the RTI Act, 2005. Section 8(1) of the RTI Act provides a list of 10 categories as

mentioned under section 8(1) a to 8(1)J are exempted from disclosure. But the proviso has

been extended that all such exemptions can be waived if a public authority decides that

public interest is more in than to protect the interests. Analysing the exemptions

Exemptions from disclosure—(/) Not withstanding anything contained in this Act, there shall

be no obligation to give any citizen,—

(a) information, disclosure of which would prejudicially affect the sovereignty and integrity

of India, the security, strategic, scientific or economic interests of the State, relation with

foreign State or lead to incitement of an offence;

(b) information which has been expressly forbidden to be published by any court of law or

tribunal or the disclosure of which may constitute contempt of court;

(c) information, the disclosure of which would cause a breach of privilege of Parliament or

the State Legislature;

(d) information including commercial confidence, trade secrets or intellectual property, the

disclosure of which 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;

15

(8)

(e) information available to a person in his fiduciary relationship, unless the competent

authority is satisfied that the larger public interest warrants the disclosure of such

information;

(f) information received in confidence from foreign Government;

(g) information, the disclosure of which would endanger the life or physical safety of any

person or identify the source of information or assistance given in confidence for law

enforcement or security purposes;

(h) information which would impede the process of investigation or apprehension or

prosecution of offenders;

(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries

and other officers:

Provided that the decisions of Council of Ministers, the reasons thereof, and the material on

the basis of which the decisions were taken shall be made public after the decision has been

taken, and the matter is complete, or over:

Provided further that those matters which come under the exemptions specified in this section

shall not be disclosed;

(j) information which relates to personal information the disclosure of which has no

relationship to any public activity or interest, or which would cause unwarranted invasion of

the privacy of the individual unless the Central Public Information Officer or the State Public

Information Officer or the appellate authority, as the case may be, is satisfied that the larger

public interest justifies the disclosure of such information:

Provided that the information which cannot be denied to the Parliament or a State Legislature

shall not be denied to any person.16

For protecting the sovereignty and integrity of the nation this clause has been specifically

given as an exemption. For example in the case of S.C Sharma V. Ministry of Home Affairs17, the commission held that the matters connected with telephonic interceptions are governed under the Indian Telegraphic Act,1885 and were distinctly related to the security

of India and hence forth those classified information’s cannot be disclosed.

16

Section 8(1) of the Act

17

(9)

However all these exemptions are over-ridden if the public interest out-weighs the protected

interests as mentioned in section 8(2) of the Act .18 Section 8(3) specifies that Subject to the

provisions of clauses (a), (c) and (i) of sub-section (/), any information relating to any

occurrence, event or matter which has taken place, occurred or happened twenty years before

the date on which any request is made under section 6 shall be provided to any person

making a request under that section:8

Provided that where any question arises as to the date from which the said period of twenty

years has to be computed, the decision of the Central Government shall be final, subject to

the usual appeals provided for in this Act19. Seven out of ten exemptions listed in section 8(1)

are not valid after 20 years under section 8(3) and the decision of the central government is

final in it.

Achievements of Right to Information (R.T.I):

Right to Information (R.T.I) had a wide impact on the society like these law was moulded

and was used to its ulterior and certain consequences that needs to be achieved is received

which is the sole objective of the Act. This Act triggered much news from the top notch

ministers and other bureaucrats because of the secret information and other scams stocked

inside the four wall of the government and concealed to public deliberately to politicize for

satiating their own foolish needs. In this connection, the Right to Information (R.T.I) has an

inbuilt mechanism which quintessentially has the following:

1. Public Accountability: Helps in ensuring accountability to the public who are the

supreme source of political power.

2. Responsibility to Public Needs: Takes into consideration all the concerns of the public

to at least ensure power in the next term of elections.

3. Derivability of Added Peril: It stems from the derivable causes that ‘Work to Ensure

Power’ or ‘Non-Work to Ensure No Power’. Hence, R.T.I attaches a peril to which

the information is focussed and centric to achieve desirable ends.

It has also helped in exposing lethal and deadly scams and scandals like 2G spectrum

allotment, coal blocks allotment, organisation of the Commonwealth Games and allotment of

apartments in Adarsh Housing Society in Mumbai, was greatly helped by information

accessed under the R.T.I Act. There are a numerous success stories where people have been

empowered by the use of R.T.I Act. It has resulted in getting their desired outcomes such as

18

Section 8(2) of the Act

19

(10)

ration card, food entitlement, pension, housing, electricity connection, answer sheets of board

examinations. An campaign named A Right to Information20campaign is a testimony that a

little spark of knowledge can ignite a people’s campaign. Bihar and Andhra Pradesh are the

two states have taken a number of initiatives for successful implementation of the RTI Act.

Bihar has initiated a Right to Information call centre called Jaankari21, In which the

applicant has to dial 155311 to file a R.T.I application. The authority transfers the problem to

the concerned authority and an extra fees of Rs10/-is credited in the phone bill. The appeals

are also carried out in the same pattern. In the state of Andhra Pradesh the pending appeals or

complaints can be determined through sending an SMS22 to APIC on phone number, citing

the appeal and year. A reply of the same is sent through the centre of good governance,

Hyderabad. People’s governance is always in sync and unscrupulously falls within the ambit

of R.T.I as R.T.I is basically people’s right and the right to govern them through the source of

information without which both are nullified against each other.

CHALLENGES TO RTI AND THE WAY FORWARD:

There are a number of daunting barriers in achieving the objective of the Act which includes

the lack of awareness among the marginalized groups and this can also be seen in some

sectors of R.T.I in which less than 100 applications are received throughout the year and the

lowest to be 16.23Mass of semi-literate people who are aware of the law have an ambiguity

about filing the application due to lack of awareness and it has been noted that Public

information officer are unfamiliar with law and technology and to which in turn leads to lack

of accessing the information by the public.24There a lot of practical difficulties due to

exemption of certain department mentioned in section 8 from R.T.I have led to a number of

scams such as Kargil Coffin scam, frozen meat scam, Rs14 crore bribe.25R.T.I being a key to

good governance, it was proposed that the Official Secrets Act,1923 which was acting as a

hindrance in the path of achieving the transparency and accountability of government and its

governance, but this was rejected by the government.26 Now coming in to the fact the R.T.I

Act has enshrined the power of appeal to proceed towards the state information commission

20

Available at http://www.empowerpoor.org/downloads/Village%20RTI.pdf and

http://www.accountabilityindia.in/article/document-library/2121-action-research-villages-right-information-campaign

21

Available at http://www.biharonline.gov.in/rti/index.aspx?ln=en&AspxAutoDetectCookieSupport=1

22

Available at http://www.thehindu.com/news/cities/Vijayawada/ap-information-panel-to-go-for-sms-service/article6429752.ece

23

Odisha state information commissioner, Annual Report 2012-13,p3,Diagram 3

24

RTI assessment and analysis group 2009,23:

25

Availabe at http://www.indiatimes.com/national/indian-armys-7-biggest-scandals-17842.html

26

(11)

and then to central information commission under section 19 of the Act. It has been noted

that the senior officers in case of appeals are largely sympathetic to Public Information

Officer and to go along with them.27It is further noted that people are reluctant to indulge in

legal proceedings which would lead them to appear before the court a number of times during

the pendency of the case. This was clearly noted in the case of Satish Sethy because he used

R.T.I as a tool to unearth corruption in the city of Pune.28A remarkable error in statistics data

of R.T.I has been noted in case of date published by the state of Odisha for the year 2012-13

in which the number of first appeal is 1469 and the number has increased to 2708 appeals in

case of Second appellate tribunal which should be of the same or less than the first

appeals.29From this it can be concluded that the data being collected by the officials are error

prone and cannot be trustworthy regarding in achieving the objective of the Act.

RTI: A Conundrum between Law and Society

Since the inception of this law ten years has been passed and a number of challenges are

listed in the above paragraph. From this it can be concluded that the objective of RTI has not

been met till now. In the study of jurisprudence Ihreing one of the propagators of the

sociological school of law have concluded that laws are only instruments for serving the need

of the society. Their purpose is to further and protect the interests of the society. Purpose

should also guide juridical thinking, of which his analysis of possession is an example.30 The

purpose of the Act has not been accomplished and it is a dilemma on how long this Act may

take to function properly to attain its objectives. Since it is in a mid-way the “What the law”

is to be struck down and series of steps may be initiated furthering the objective of Act to

“what the law ought to be” and a series of steps needs to be taken for proper implementation

of the law.

Recommendations:

Looking at a number of barriers in achieving the objective of RTI Act, 2005. The Author

seeks forward to recommend the following things-

1.Digitilization of all records -section 4 of the Act authorizes the authorities to properly

manage and speedily computerise its records which would help in preventing a lot of data

which may be destroyed by some unfortunate situations.

27

Alasdair Robert,great and revolutionary law? the first four years of India’s Right to Information Act, at p.17

28

Freedominfo.org,2010

29

Odisha state information commissioner, Annual Report 2012-13, at p8 para 2.and p 10para1

30

(12)

2.Raising awareness about the RTI Act- The central govt. in spite of taking a number of

initiatives the law has not been properly implemented ,still the rural population are unaware

of the Act. So, the govt. should take steps to raise awareness through public debating and

implementing major policy issues.

3.Training of All PIOs- The PIOs are not acquainted with the latest technology and they are

still in the paper and pen process of disposing of complain .The govt should initiate a

programme for mass training of its authorities with its latest technology which would help the

public in accessing the information in a quicker way.

4.Uniformity of the law –A number of state have passed their legislation with regards to RTI

and due to which it creates a number of ambiguity and the information commission focus on

the state laws and are ignorant of the central law. This creates umpteen of rules. There should

be uniformity in rules in the country to avoid this ambiguity and all the state legislation may

be struck down.

5. Protection of whistleblower-The whistle blowers needs to be protected and a certain

mass of weak people who may be prone to attack by stronger section of people. Certain

stringent laws needs to be incorporated to protect them as they are helping in exposing a lot

of corruptive practices in the nation.

Conclusion

Since its inception less than a decade, the burgeoning movement for the right to information

in India has significantly sought to widen democratic space, and empower the ordinary

citizen to exercise greater control over the corrupt and arbitrary exercise of state power. It is

one kind of negative sanction against the State. The right to information is implicit in the

Constitution of India and even the dominant culture of the executive has been one of secrecy

and resolute denial of access of information to the citizen. As user friendly legislation, it has

paced up with all the irregularities only with the support of the public and the law binding to

that effect. This conundrum becomes all the more challenging when a clash occurs to resolve

the controversy as to whether Law is for the Society or the vice-versa. This is further

supported by Ihreing Theory (one of the propagators of the Sociological School of Law)

whose purpose is to further the interests of the people and the purpose should also guide

juridical thinking of which each analysis of possession is an example.

The need of the hour is not to brush up information to understand the dynamic needs of the

society (though it is not denied) but beyond RTI, beyond Law, there is something to dawn

(13)

road to access information has become arduous as a section of society being benefitted rather

the Act was connoted to be for the beneficial of the larger section of the society. If such is

the case, who is to take the responsibility is the final question we need to have a relook:

THE PEOPLE, THE GOVERNMET OR THE LAW?

References:

1. Dais Jurisprudence, Gurgaon, Lexis Nexis Publication, Fifth Edition.

2. Llyod’s Introduction to Jurisprudence, London, Thomson Reuters (Legal)

Limited,2014,Ninth edition.

3. Verma R.K, Taxman’s Right to Information Law and practice,2nd ed.

4 Verma R.K & Anuradha Verma, . Taxman’s PIOs guide to R.T.I, 2nd ed.

Research Papers Referred

1. Keshabananda Borah,Right to Information Act: a key to good governance.

2. Alasdair Robert’,Great and revolutionary law? The first four years of India’s Right to

Information Act.

INTERNET SOURCES

1.Availableathttp://www.empowerpoor.org/downloads/Village%20RTI.pdfandhttp://www.ac

countabilityindia.in/article/document-library/2121-action-research-villages-right-information-campaign

3.Available

athttp://www.biharonline.gov.in/rti/index.aspx?ln=en&AspxAutoDetectCookieSupport=1

4.Available at

http://www.thehindu.com/news/cities/Vijayawada/ap-information-panel-to-go-for-sms-service/article6429752.ece

5.RTI assessment and analysis group 2009,23:

6.Availabe at

(14)