Open Access Research Article
RTI: IN CHANGING SCENARIO By: P Samay Kumar
Published Paper
Article Details
RTI: IN CHANGING SCENARIO
Authored
By: P Samay Kumar
Student
of BBA-LLB (Hons.)
ICFAI
Law School, Hyderabad.
Introduction
India is the largest democratic
country in the world having 142 Crores of Population out of which there are 94.5
crores of voters[1] and
those voters decide the fate of the government and the people in general. The
jurisprudence of democracy has been enshrined in the part-III and Part-IV of
the constitution of India. According to the constitution the people of India are
sovereign authority and they have Fundamental Rights to know what the
government has been doing in their name. Freedom of Speech is the lifeblood of
democracy without it democracy will be turned into tyranny or dictatorship.
Freedoms of Speech Acts like a safety value in democracy, because people
ventilate their grievances by criticizing the government and public officials.
Consequently, it does not give the scope to the people to revolt against the
existing order.
The history has witnessed several
revolutions, which is the result of the lack of information. When people do not
get the right kind of information they develop the attitude of apathy and
indifference towards the government. The secret policy of British government
had compelled some prudent Indians to think otherwise. And in the long run that
secret policy of alien rulers acted like a deadly weapon against themselves.
Consequently, they had to leave this soil and Indians took the charge to rule
them. Thus it is clear that Right to Information not only gives the scope to the people to
know about the functioning of the government but it ventilates the grievances
of the people.
The Universal Declaration of Human
Rights of 1948 has clearly mentioned in Article-23 and 25 [2]
about the Right to Information which is the inherent right of human being.
Right to Information laws result the basic premise that government is meant to
serve the people. Access to government records and information is necessary
prerequisite for enhancing transparency. Transparency removes the
misunderstanding and checks the corruption in the administration. The
government of India after being realised its importance passed the Right to
Information[3] act on
12th October 2005 and since then the Right to Information Act 2005 is being
applied and recently Amendment has been done to it in 2019, through out the
country. In order to have a basic idea on Right to Information as well as to
address the current issues, this paper has been designed.
RTI is a powerful weapon in the hands
of people of the country but the weapons need to work as intended when
required. India, being a vast country with diversified hierarchy in the
administration, the implementation was difficult but never impossible. But here
is always room for improvement. Even after 18 years of its enactment, it has
failed to acquire constitutional status and has not reached the masses. Usually
it is seen that only the people who are in dire need of some information, file
for RTI. Although there is provision under the Act to educate people on this
topic, but it has failed to reach the rural population where the country
lives.
The question of research is Whether
the RTI Act is acting as intended by the democracy or it is has just remained
as another statutory compliance on paper behind which the real dark faces of
the Government live. Further, in this paper I have discussed few suggestions
which may be considered to enhance the Act.
The hypothesis for this research
paper is that the new Amendment Act, 2019 has brought new problems rather than
solving the previous lacunas. Amendment to S.26, 13, 16, 24 of the RTI Act is
destroying the federal structure of the RTI Act.
PROSPECTS AND PROCEDURAL ASPECTS
The RTI Act is 21st-century
legislation which entitles the people of India with a statutory right, i.e.,
the ‘Right to Information’. However, the Supreme Court recognized the Right to
Information as a fundamental right way back in 1975 in the case of State of
Uttar Pradesh v. Raj Narain[4],
wherein it ruled that “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.” The apex court in the landmark case of S.P.
Gupta & Ors. v. The President of India[5]
further recognized Right to Information as a fundamental right-ruling that “The
concept of an open Government is the direct emanation from the right to know
which seems implicit in the right of free speech and expression guaranteed
under Article 19(1)(a). Therefore, disclosures of information regarding the
functioning of Government must be the rule.”
Definition of Right to Information
Right to Information accessible under
this Act which is held by or under the control of any public authority and
includes the Right to-
·
Inspection
of work, documents, records;
·
Taking
notes, extracts or certified copies of documents or records;
·
Taking
certified samples of material;
·
Obtaining
information in the form of diskettes, floppies, and tapes videocassettes or in
any other electronic mode or through printouts where such information is stored
in a computer or in any other device.
Bodies coming under the RTI Act
The right to information Act covers
all levels of Government-Centre, State district and local self-governing bodies
like Panchayats and Municipal bodies. It also covers non-governmental
organisations – i.e. NGOs and other private bodies – that are financed
substantially with public funds provided by the government. Every citizen has
the right to put in an application requesting information or copies of records
held by these bodies and such information should be given by the concerned
body.
The three level regime for accessing information
At the first level of the regime,
every public authority has designated officers for receiving applications (also
called information requests) from citizens.
At the second level, every public
authority has designated senior officers to look into those cases where
citizens request for information have been refused. If citizens do not get the
requested information or are not satisfied with the information they have
received under this law, they have the right to send an appeal to the
Department Appellate Authority (DAA) designated within the concerned public
authority.
At the third level, an independent
State Information Commission (SIC) has been set up to look into those cases
where citizen are not satisfied with the decision of the DDA. The SIC also has
the powers and responsibility to monitor compliance of public authorities to
this Act and submit an annual report to the State Legislature.
The Role and Duties of the Public Information Officer
Under the RTI Act, Public Information
Officers (PIOs) should be designated in all administrative units of every
public authority in order to receive information requests from citizens. They
also have responsibility and duty to provide the requested information within
30 days. The PIO is the main point person whom citizens will contact for exercising
their right to information under this law. In public authorities controlled by
the State Government they are called State Public Information Officers (SPIOs).
Duties of a PIO: Sections 7, 10 & 11
1) PIO should render assistance to those
who cannot write an application.
2) Must inform the application of the
appellate authority to whom he should approach for review of the decision taken
on the fees for supply of information and also the time limit.
3) Give information in the form in which
it is originally sought subject to resource constraint and preservation of the
record in question.
4) Give written reasons for rejection of
information request, details of the time limit for appeals and the Approach
appellate Authority.
5) If allowing partial access he shall
give notice to the applicant stating
a) Which part will be provided after
serving the exempt portions,
b) Reasons for arriving at this decision
including findings on any factual matter relating to the materials on which the
findings are based.
c) Name and designation of the person
who gave his decision.
d) Details of fees to be deposited.
e) Applicant’s right to seek review of
the decision on fee charged or the decision taken-including details of the
appellate Authority and the time limit for filing the review / appeal.
6) If information sought has been
supplied by third party or is treated as confidential by the third party, PIO
must give written notice to the latter within 5 days of receiving the
information request and take its representation into consideration.
7) Third party must be given a chance to
make a representation (oral or written) before the PIO within 10 days of
receiving the notice.
Exemptions
from disclosure of information according to Section 8:
1.
Information
that would prejudicially affect the sovereignty, integrity, security,
scientific or economic interest and relation with a foreign state.
2.
Information
which would lead to commission of an offence.
3.
Information
whose release is forbidden by a court or tribunal or discloser which might
constitute contempt of court.
4.
Information
whose release may lead to breach of privileges of parliament or state
legislature.
5.
Commercial
and trade secrets, intellectual property etc. that would harm competitive
position of third party.
6.
Information
available to a person in his fiduciary relationship (Information shares between
client and lawyer or landlord and tenant or patient and doctor.)
7.
Information
received in confidence form a foreign government.
8.
If
information disclosure endangers life and physical safety of any person.
9.
If
it is about a source of information or assistance given in confidence of law
enforcement or security purposes.
10. If it is likely to impede
investigation and prosecution process.
11. Cabinet papers including
deliberations of Ministers, Secretaries and other officers. (But decisions and
related reasons contained in them will be made public after the decision has
been taken and the matter is complete or over)
12. Personal or private information-
subject to large public interest- to be decided by the public information
officer.
All exemptions subject to
public interest override. If public interest outweighs harm to the public
authority, information must be disclosed. The power to decide whether public
interest outweighs is with the public information officer and the Appellate
Authorities.
Time bar on information covered by exemptions
Upon completion of 20 years,
information about any occurrence, event or matter will be given irrespective of
exemptions. But information relating to sovereignty, integrity, security,
scientific or economic interests information which would lead to incitement to
commit and offence, Cabinet papers including records of deliberations of the
Council of Ministers, Secretaries and other officers and matters relating to
the privileges and immunities of legislators and MPs will not be given even
after 20 years. Decision of the Central Government is final as regards
computation of the time period.
Who
is excluded? Section 24 and Schedule:
Central Intelligence agencies and security
agencies like the IB, RAW, Directorate of Revenue Intelligence, Central
Economic Intelligence Bureau, Enforcement Directorate, Narcotics Control
Bureaus, Aviation Research Centre, Special Frontier Force, BSF, CRPF, ITBP,
NSG, Assam Rifles, Special Service Bureau, CID Special Branch of Andaman and
Nicobar Islands, CID Crime Branch of Dadra Nagar Haveli and Special and Special
Branch, Lakhadweep Police. Similar agencies established by the State
Governments will also be excluded.
But information relating to
allegations of corruption and human rights must be given. Information about
allegations of human rights violation will be given only with the approval of
the Central or State Information Commission- as the case may be. Time limit for
the same is 45 days.
By enacting the Right to Information
Act the government has fulfilled long cherished desire of the common men of
this country. In fact, the common men were not able to get information from the
government as and when necessary. The Right to Information is not only
strengthens the democracy but also it makes the representative more responsive
and responsible. Access to information is one of the prerequisites of Good
Governance. Transparencies bring the openness and make the government free from
corrupt charges. Now it seems that our government is marching forward in the
path of Good Governance. Thus, one can conclude with the wards of Justice
Bhagwati who said “No democratic Government can survive without accountability
and the basic postulate of accountability that the people should have information
about the functioning of the government. It is only when people know how
government is functioning that they can fulfil the role which democracy assigns
to them and make democracy a really effective participatory democracy.”
Right to Information is perhaps the
dearest contrivance of the civil society which has made a sempiternal impact in
the public memory. The RTI Act has successfully done justice to its objective
by giving the people access to information regarding the CBSE Board papers[6]
and accounts of political parties[7]
and many others.[8] But from
the prospective of a lawyer, there are still many loop holes and room for
improvement in the Act, which, if not resolved in time, may lead to the failure
of this novel instrument. Hence, I have addressed those issues in the next
chapter.
RECENT DEVELOPMENT
Lacuna in the RTI Act, 2005
Although the Right to Information
Act, 2005 was thought and proved to be revolutionary but it facts several
criticisms on ground. The Act provides for information on demand, so to speak,
but does not sufficiently stress information on matters related to food, water,
environment and other survival needs that must be given pro-actively, or suo
moto, by public authorities. Some of the criticisms are given below –
1. The Act does not emphasize active
intervention in educating people about their right to access information.
Hence, it did not reach the mass rural population like the other fundamental
rights. Unless an average common man seeks some professional help, it was
difficult for him to access the provision made by law.
2. According to the RTI Act, the first
appeal will lie before the officer who is senior in rank to the Public
Information Officer (PIO) in the Public Authority in cases where the applicant
is aggrieved by the decision of the PIO. But the Act is silent about the power
and procedure of this first appellate authority.
3. As per provision of the said Act, the
information commissioners are empowered to impose any of the penalties provided
under the Act. Penalty would naturally mean that the amount that has been
levied would be remitted to the government. But in this Act there is no such
express legal provision or rule for implementing this provision.
4. Filling an application do take time,
energy and money. Therefore, no person will file an application until and
unless he/she is really in need of that information. The process could have
been more easily assessable and professional assistance is always required for
the majority of the people.
The Right to Information (Amendment) Act, 2019
The Act changes the terms and
conditions of service of the CIC and Information Commissioners at the centre
and in states. Table 1 below compares the provisions of the Act and the Bill.
Table 1: Comparison of the provisions of the
Right to Information Act, 2005 and the Right to Information (Amendment) Act,
2019.
|
Provision
|
RTI Act, 2005
|
RTI (Amendment) Act, 2019
|
|
Term
|
The Chief Information Commissioner
(CIC) and Information Commissioners (ICs) (at the central and state level)
will hold office for a term of five years.
|
The Bill removes this provision and
states that the central government will notify the term of office for the CIC
and the ICs.
|
|
Quantum of Salary
|
The salary of the CIC and ICs (at
the central level) will be equivalent to the salary paid to the Chief
Election Commissioner and Election Commissioners, respectively. Similarly,
the salary of the CIC and ICs (at the state level) will be equivalent to the
salary paid to the Election Commissioners and the Chief Secretary to the
state government, respectively
|
The Bill removes these provisions
and states that the salaries, allowances, and other terms and conditions of
service of the central and state CIC and ICs will be determined by the
central government.
|
|
Deductions in Salary
|
The Act states that at the time of
the appointment of the CIC and ICs (at the central and state level), if they
are receiving pension or any other retirement benefits for previous
government service, their salaries will be reduced by an amount equal to the
pension. Previous government service includes service under: (i) the central
government, (ii) state government, (iii) corporation established under a
central or state law, and (iv) company owned or controlled by the central or
state government.
|
The Bill removes these provisions
|
Criticism
First of all the new Amendment Act,
neither resolve nor even address the problems of 2005 Act. Rather a series of
new problems seems to have been developed due to the amendment. Few of them has
been discussed below.
Independence of the Commission
A fixed tenure and high status provided to
Commissioners under the RTI Act, 2005, to allow them to carry out their
functions with autonomy and impartiality. It is meant to empower them to direct
even the highest offices to comply with the law when it comes to making relevant
public information accessible to the citizen. This was also the recommendation
of the parliamentary standing committee that had reviewed the original RTI law
draft in 2004. But the 2019 amendment bill seeks to modify these protections
and empower the central government to prescribe rules to decide the tenure,
salaries and allowances of these commissioners. Allowing the central government
to do so for all information commissioners is harmful for the following
reasons:
i.
It
undermines the autonomy of the officials whose role it is to remain independent
of the government;
ii. It weakens the ability of information
commissioners to pass orders to disclose information that the central
government may not wish to provide; and
iii. It also damages citizens’ access to
vital public information, as well as the principles of open government.
Federalist Structure of the Act
The 2019 amendment bill came as a
jolt to the RTI Act as the bill wipes out the federal structure of the RTI Act
by empowering the government with excessive power of delegated legislation. The
Statement of Objects and reasons attached to the amendment bill fails to answer
the question as to how the SIC is constituted by and whose salary and tenure is
subject to the control of Central Government.
Further, Section 15(1) of the RTI act
authorizes the State Government to set up the State Information Commission and
Section 15(3) empowers the State Government to appoint the State Information
Commissioner and vests power in the Governor to remove them on grounds of proven
misbehaviour and incapacity. Further, the decision of SIC cannot be challenged
before the CIC. Therefore, the federal scheme of the RTI act stands firm and
clear. The Central Government has no right exercise authority over the
appointment of the SIC as there is a very sharp and explicit demarcation
between the jurisdictional limit of the Centre and State.
Thus, the appointment of the SICs and
the decision on their salaries and tenure is the sole jurisdiction of the State
Government. The new amendment bill by empowering the Central Government with
the powers of the State Government has annihilated the federal scheme of the
RTI Act.[9]
Violation of Pre-Legislative
Consultation Policy
It is a matter of grave concern that
the amendments to the Right to Information Act (RTI) law were introduced in
complete secrecy and in flagrant violation of the Pre-Legislative Consultation
Policy of the Central government, which mandates public disclosure and
consultation on draft legislation.[10]
The Government secretly introduced the amendment bill without consulting the
two primary stakeholders: the citizens and the Information Commission. Further,
neither the media nor the MPs were made aware of the bill and hence it can be
concluded that there has been abuse of Government’s power.
By enacting the Right to Information
Act the government has fulfilled long cherished desire of the common men of
this country. In fact, the common men were not able to get information from the
government as and when necessary. The Right to Information is not only
strengthens the democracy but also it makes the representative more responsive
and responsible. Access to information is one of the prerequisites of Good
Governance. Transparencies bring the openness and make the government free from
corrupt charges. But the recent RTI Amendment Bill 2019 seems to have weaken
the law. The only implication that one can derive from this is that the
government wants to control the information commissioners. The new provisions
may dilute the purpose of fundamental right and Right to Information Act, 2005
given to citizens under the constitution. There was no need to bring this
amendment. Hence a judicial review is required for this amendment done by the
parliament. Because as Justice Bhagwati said “No democratic Government can
survive without accountability and the basic postulate of accountability that
the people should have information about the functioning of the government. It
is only when people know how government is functioning that they can fulfil the
role which democracy assigns to them and make democracy a really effective
participatory democracy.”
Suggestions
No demonstrative government can
survive without accountability and basic postulate of accountability that is
the people should have information about the functioning of the government. The
RTI Act aims at securing and ensuring in the administration.
The Law Commission has also given in
its Report[11] on the
Whistle Blowers Law which is called Public Interest Disclosure (Protection)
Act. The original Public Interest Disclosure (Whistleblowers) Bill placed in
Parliament was weak and ineffective. The Standing Committee Report however has
made some very good recommendations. These should be accepted at once and a
more comprehensive Whistleblower Protection Bill should be passed by Parliament[12].
The Central Information Commission
has passed a resolution that if any citizen who is asking for information is attacked
or killed, his queries will be accessed by the Commission and put on the
website. Similarly in Rajasthan the government has taken a decision that in the
case of any person who has asked for information from the panchayat and has
been attacked, the government will initiate a social audit by the state team[13].
Some suggestions are given below to
make the RTI Act more effective and useful –
i.
The
government argues RTI is not a fundamental right, and CIC and State Information
Commission are not constitutional bodies. But, the Supreme Court in catena of
landmark cases, has held that RTI, like the right to vote, has emanated from
right of expression under Article 19(1)(a). Both CEC and CIC enforce these two
aspects of that fundamental right.
ii.
Human
rights violation like custodial death, tortures, causing disappearance and
other violences to the people by the security personnel in abuse of power,
which became frequent happening nowadays As per section 24 of the RTI Act, such
information is to be addressed to the security and intelligence organizations
which will be provided, subject to the approval of the concerned Information
Commission, within 45days. This provision is meaningless and unreasonable The
RTI Act may be made useful to the people if the said provisions are substituted
by “in case of information sought for concerns human right violations, the
proviso to Section 7(1) should be made applicable”. By doing so every
information requested by a citizen which concerns human right violation, the
intelligence and security organization will provide the information within
48hours like other public authorities who are to provide the information
concerning the life and liberty within 48hours.
iii.
The
provision as mentioned in Section 8 of the Act relating to secrecy has become
an exception under the RTI Act. This section is required to be made clearer.
This can be done by giving guideline to illustrate the different aspects which
are exempted.
iv.
There
may be possibility that some people may misuse this act to harass the officials.
So some provisions may be inserted in the RTI Act to empower the Information
Commissions to award cost against the complainants or the appellants for
initiating frivolous and vexatious applications to the public information
officers.
v.
The
Act is silent about the power and procedure of this first appellate authority.
A rule in this connection is necessary to be framed to deal with this appeal
and the power to impose penalty, if any.
vi.
As
per provision of the said Act, the information commissioners are empowered to
impose any of the penalties provided under the Act. But in this Act there is no
such express legal provision or rule for implementing this provision. So new
rule may be imposed to fill up this lacuna.
vii.
When
the original bill was proposed by the then government, the objective was to
equate the status of the chief information commissioner with the secretaries to
the Government of India, and the other commissioners with joint secretaries.
The legislation was referred to the parliamentary committee in December 2004.
The committee contended that the information commissioners should not be made
equal to secretaries and joint secretaries, rather for the sake of autonomy,
they should be placed on a footing equal to the election commissioners. But recently
the government stated that the status of the Information Commissioners (ICs) is
not to be equated with that of the election commissioners (ECs) on the grounds
that the election commission is a constitutional body whereas the information
commission is a statutory body under the act.
At the end, it can be concluded that
the hypothesis of this paper that the new Amendment Act, 2019 has brought new
problems rather than solving the previous lacunas is true and the above
mentioned recommendations may be placed into the act to solve those lacunas.
RTI plays a crucial role in the democracy and, if not taken care of, the
lacunas may render it ineffective.
References
Books
i.
S.
P. Sathe “Judicial Activism in India”, Oxford University Press, New Delhi,
2006.
ii.
N.
K Padhi, “Protection of Human Rights and National Human Rights Commission”,
Gyan Publishing House, New Delhi, 2007.
iii.
P.
M. Bakshi, “The Constitution of India”, Universal Law Publishing co. Pvt. Ltd,
New Delhi, 2004.
iv.
M.
K. Das, “The Right to Information Act, 2005”, OLR Publication Cuttack.
Articles
i.
Shekhar
Singh, The Genesis And Evolution of The Right To Information Regime In India,http://freedominfo.org/documents/India2010singhCountry%20Paper%20FINAL.pdf
(last visited 23.03.2023).
ii.
Abhinav
Kumar and Prakhar Bhardwaj, Book Review of “The Right to Information in India”
by Sudhir Naib, 2(1) NLUJ Law Review 127 (2013)
iii.
Right
To Information (Amendment) Bill, 2019: A Mock on the Autonomy of Administration
| Indian Journal of Law and Public Policy (ijlpp.com)
iv.
plcp.pdf
(legislative.gov.in)
v.
http://lawcommissionofindia.nic.in/reports/179rptp1.pdf,
last visited on 15.02.2012
vi.
No
pressing need to amend RTI Act”, The Statesmen, (10.12.2011), Saturday
Interview.
Cases
i.
State
of Uttar Prasad v. Raj Narain, A.I.R. 1975 S.C. 865
ii.
S.P.
Gupta & Ors. v. The President of India, A.I.R. 1982 S.C. 149.
iii.
CBSE
v. Aditya Bandopadhya, (2011) 8 S.C.C. 497
iv.
Subhash
Chandra Agarwal v. Indian National Congress and Ors., 2015 S.C.C. OnLine C.I.C.
604.
Statutes
i.
The
Constitution of India, 1950.
ii.
Right
to Information Act, 2005.
iii.
Right
to Information (Amendment) Act, 2019
[1]
PTI, India has over 94.50 crore voters as on Jan 1: Government, THE
ECONOMIC TIMES, https://economictimes.indiatimes.com/news/india/india-has-over-94-50-crore-voters-as-on-jan-1-government/articleshow/97559222.cms?from=mdr
(last visited 23.03.2023).
[2]
UNITED NATIONS, The Universal Declaration of Human Rights, https://www.un.org/en/about-us/universal-declaration-of-human-rights
(last visited 23.03.2023).
[3] Shekhar Singh, The Genesis And Evolution
of The Right To Information Regime In India, http://freedominfo.org/documents/India2010singhCountry%20Paper%20FINAL.pdf
(last visited 23.03.2023).
[4]
State of Uttar Prasad v. Raj Narain, A.I.R. 1975 S.C. 865
[5]
S.P. Gupta & Ors. v. The President of India, A.I.R. 1982 S.C. 149.
[6]
CBSE v. Aditya Bandopadhya, (2011) 8 S.C.C. 497
[7]
Subhash Chandra Agarwal v. Indian National Congress and Ors., 2015 S.C.C.
OnLine C.I.C. 604.
[8]
Abhinav Kumar and Prakhar Bhardwaj, Book Review of “The Right to Information in
India” by Sudhir Naib, 2(1) NLUJ Law Review 127 (2013)
[9] -Justice
Lokur, Right To Information (Amendment) Bill, 2019: A Mock on the Autonomy of
Administration, INDIAN JOURNAL OF LAW AND PUBLIC POLICY, https://ijlpp.com/right-to-information-amendment-bill-2019-a-mock-on-the-autonomy-of-administration/
(last visited 30/01/2023)
[10] plcp.pdf
(legislative.gov.in)
[11]
http://lawcommissionofindia.nic.in/reports/179rptp1.pdf, last visited on
15.02.2012
[12]
“No pressing need to amend RTI Act”, The Statesmen, (10.12.2011), Saturday
Interview.
[13] Ibid.
Article Information
RTI: IN CHANGING SCENARIO By: P Samay Kumar
Authors: P Samay Kumar
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/03/28
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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