Sunday, 1 January 2012

RIGHT TO INFORMATION ACT 2005




Information is the currency that every citizen requires to participate in the life and governance of society. The greater the access of the citizen to information, the greater would be the responsiveness of government to community needs. Alternatively, the greater the restrictions that are placed on access, the greater the feelings of `powerlessness’ and ‘alienation’. Without information, people cannot adequately exercise their rights and responsibilities as citizens or make informed choices. Government information is a national resource. Neither the particular government of the day nor public officials create information for their own benefit. This information is generated for purposes related to the legitimate discharge of their duties of office, and for the service of the public for whose benefit the institutions of government exist, and who ultimately fund the institutions of government and the salaries of officials. It follows that government and officials are `trustees’ of this information for the people. Information is the prerequisite for effective civil society participation and monitoring of government activities. Free access to information enables law-enforcement agencies, citizens, and the media to uncover cases of corruption and maladministration. More importantly, however, the transparency herewith achieved acts as deterrent to bad governance as the risk of detection of illicit or otherwise questionable practices increases. Right to Information is thus an essential element of sustainable corruption control.

The Right to Information is the right of the public to know how certain decisions are taken, how the expenditure is incurred by the public authorities and the various aspects of functioning of a public authority. The Right to Information Act was passed in India by Parliament on 15 June 2005 and it came into force on 15 October 2005.The RTI has made information accessible to the public which they were earlier deprived off. The basic aim of the act is to bring about openness, transparency and accountability of the government. This act allows the public to seek information from any governmental department, thereby increasing accountability and the transparency of the establishment and allowing it to share power with the humblest and poorest of the society.
            Now India has joined the sixty odd countries around the world which have this provision in the Constitution. There are 40 countries waiting to join this group of enlightened democracy. Transparency is an important discipline in governance. Right to Information is the backbone of a democracy. The State is given immunity from this rule on certain occasions in order for it to effectively carry on its work. The State by virtue of being granted certain privileges has been given certain exceptions to present all evidence before the Court. In India too statutory safeguards exist for ensuring government secrecy.

Sources of the Right to Information
First, is the constitutional basis derived from Article 19(1) (a) of the Indian constitution which states that “All citizens have the right to freedom of speech and expression”. India’s Supreme Court from the case of Bennett and Co Vs the Union of India, 1973, read it as an integral element of the purpose of Article 19. As the majority opinion then put it,” freedom of speech and expression includes within its compass the right of all citizens to read and be informed”. In state of U.P Vs Raj Narain,1975 AIR 865 , 1975 SCR (3) 333, the apex court of the country stated, “In a government of responsibility like ours where the agents of the public must be responsible for the 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.”

The second basis for RTI is democratic. India is a democracy where the government is of the people, by the people for the people. The public servants derive power from the people as they are either elected by the people directly or indirectly; or nominated by the people directly or by representatives of the people. Therefore they exercise power on behalf of the people.
Thirdly, the Constitution guarantees, under Article 19(1)(a), to every citizen the freedom of speech and expression. In order to exercise the freedom of speech and expression effectively, you need an informed public opinion. The right to knowledge includes the right to information. The right to information thus flows out of freedom of speech and expression. The right to information Act, 2005 is not the repository of the Right to Information. Its repository is the constitutional right to free speech and expression. The Right to Information Act is merely an instrument that lays down the statutory procedure in the exercise of this right. It is, therefore, necessary that all exceptions and denials or exemptions and denials of the right to information must necessarily conform to restrictions that bear a nexus to those mentioned in Article 19 (2) and to none others.
The fourth basis for RTI is logical. The Citizens pay taxes. They have a right to know how their money is being spent, by whom, when and where their money is being spent.

Liberal and conservative on the Right to Information Act
The proponents of the liberal view have argued information as defined under the Act includes opinions and advices and is therefore broad enough to cover file notings. File notings are essentially to understand not merely the fairness of the decision but also the decision-making process. Contrarian viewpoints upon consideration of which the Government decides become clear once the decision-making process is made public. If merely the final decision is conveyed, the rationale and logic behind the decision may not become apparent. Any unfair influence or collateral considerations in decision-making will not be known. The reasons why a more logical point has been overruled will never be known. The right to information will itself be incomplete without notings and observations on various files given by officials being made public. In our system of governance, we expect the civil services to advise the political executive freely and objectively. It will have to be made known why in certain cases this professional advice has not been accepted. Governments are expected to act fairly and rationally. All actions must be informed by reason. Decisions must necessarily be in the public interest and not suffer the vice of arbitrariness.
Supporters of the conservative view, on the other hand, have sought to contend that the original Act never conferred the right to know the notings, advices, and opinions. The amendment reaffirms that position with an exception that decisions relating to various social sectors would now be made more transparent. The civil service has consistently been advising the political executive that since it is under an obligation to advise the political executive correctly and objectively, the prospect of a public gaze on its advice would deter it from taking strong positions on various issues. If bureaucratic notings are to be made public, officials would tend to be non-committal; or at times they would merely place alternative viewpoints before the decision-making authority for its direction. Governance may suffer on this count.

The Goals of the Right to Information Act
One of the principle aims of administrative law is to ensure the effective functioning of the government and the state in an accountable and transparent manner. Administrative law strives to ensure that the government is responsible and answerable to the people. Democracy is built upon the fundamentals of an informed citizenry and transparence in information which are vital to its functioning and also to contain corruption and to hold governments and their instrumentalities accountable to the governed. This belief forms the bedrock of the Right to Information Act. The preamble to the Right to Information Act specifies that the Act has been enacted for establishing the practical regime of Right to Information for citizens in order to secure access to information under the control of public authorities, and to promote transparency and accountability in the working of every public authority. The preamble, however, also refers to the exemptions and says that, in some cases, revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited physical resources and the preservation of confidentiality of sensitive information.

Terms used in the Right to Information Act
"Competent Authority" means—
(i) the Speaker in the case of the House of the People or the Legislative Assembly of a State or a Union territory having such Assembly and the Chairman in the case of the Council of States or Legislative Council of a State;
(ii) The Chief Justice of India in the case of the Supreme Court;
(iii) The Chief Justice of the High Court in the case of a High Court;
(iv) The President or the Governor, as the case may be, in the case of other authorities established or constituted by or under the Constitution;
(v) The administrator appointed under article 239 of the Constitution;

 "Information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;
            "Prescribed" means prescribed by rules made under this Act by the appropriate Government or the competent authority, as the case may be; 
"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—
(i) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed,
directly or indirectly by funds provided by the appropriate Government;
"Record" includes—
(a) any document, manuscript and file;
(b) any microfilm, microfiche and facsimile copy of a document;
(c) any reproduction of image or images embodied in such microfilm (whether enlarged or not); and
(d) any other material produced by a computer or any other device;

"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 electronic mode or through printouts where such information is stored in a computer or in any other device; 
(n) "third party" means a person other than the citizen making a request for information and includes a public authority.

Features of the Right to Information Act
This act extends to the whole of India except the State of Jammu and Kashmir. Under the Right to Information Act, 2005, Central Information Commission and State Information Commission have been set up. These are the supreme appellate authorities to exercise the power conferred on and to perform the functions assigned to under this Act. In all administrative units of the Government there shall be Central Public Information Officer or State Public Information Officer as the case may be for providing information to the person requesting under the Act. A person who desires to obtain information shall make a request in writing or through electronic means of communication to the Central Public Information Officer or State Public Information Officer of the concerned public authority along with prescribed fees. The Central Public Information Officer or the State Public Information Officer shall within 30 days of the receipt of such request either provide information to the person or reject the request. If he fails to give any decision it will be presumed that he has refused the request.
A person who is not satisfied with the information provided by the Central Public Information Officer or the State Public Information Officer as the case may be or a person who is denied to have any information or whose request is rejected without assigning any reason may prefer an appeal to the officer who is senior in rank to the Central Public Information Officer or the State Public Information Officer. A second appeal may be preferred to the Central Information Commission or the State Information Commission established under the Act. Decision of the Commission is final and binding. Thus a hierarchy has been set up within the public authority and the power of court has been curtailed. Now the court is not entitled to entertain any suit, application or other proceeding in respect of any order made under this Act and no such order shall be called in question in court. Thus jurisdiction of the court cannot be invoked because there exists a statutory bar under Section 23 of the Act. Now Right to Information has become a statutory right and any person aggrieved with the decision of the Central Public Information Officer or the State Public Information Officer has statutory remedy under the Act. He does not have to knock the door of the court.

Restrictions Imposed by the Act
The Act itself is self-restrictive in nature. The Act does not make the Right to Information an absolute right but imposes restriction on this right. Section 8(1) of the Act deals with exemption from disclosure of information. The section says that “Notwithstanding 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 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;
(e) Information available to a person is 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, 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 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;  Section 9 of the Act says that a Central Public Information Officer or a State Public Information Officer may reject a request for information where such a request for providing access to information involves an infringement of copyright subsisting in a person other than the state. Section 24 lays down that the Act has no application to certain organizations. These are the intelligence and security organizations specified in the Second Schedule of the Act, as organizations established by the Central Government.
The Act also cannot be applied for certain intelligence and security organizations established by the State Government as that Government may, by notification in the Official Gazette specify. Information pertaining to the allegations of corruption and violation of human rights shall not be excluded under this Section. Only one exception is that if the information in respect of violation of human rights is there, after obtaining the approval of Central Information Commission such information shall be provided. The intelligence and security organizations established by the Central Government not under the perview of the Act
1. Intelligence Bureau
2. Research and Analysis wing of the Cabinet Secretariat
3. Directorate of Revenue Intelligence
4. Central Economic Intelligence Bureau
5. Directorate of Enforcement
6. Narcotics Control Bureau
7. Aviation Research Centre
8. Special Frontier Force
9. Border Security Force
10. Central Reserve Police Force
11. Indo-Tibetan Border Police
12. Central Industrial Security Force
13. National Security Guards
14. Assam Rifles
15. Sasastra Seema Bal
16. CID Special Branch, Andaman and Nicober
17. The Crime Branch – CID – CB, Dadra and Nagar Haveli
18. Special Branch, Lakshadweep Police
19. Special Protection Group
20. Defence Research and Development Organisation
21. Border Road Development Board
22. Financial Intelligence Unit, India

Laws Relating to the Restriction on Communication of Information
The Constitution is the supreme law of the land and any law which ultravires  the Constitution or made in violation of it is void. Article 19(1)(a) is the main source of Right to Information and Article 19(2) puts reasonable restriction on it. It is not wise to make access to information absolute for the security of the state and to maintain tranquility and harmony within the country some facts / information must be kept unpublished. Under Article 19(2), the state is empowered to make any law which imposes reasonable restrictions on such right on the grounds of sovereignty and integrity of India, security of the state, friendly relation with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. The All India Service (Conduct) Rules, 1968 prohibits unauthorized communication of information by member of All India Services.

Under the Atomic Energy Act, 1962 the Central Government is empowered to declare any information as restricted information which cannot be made public or published. The Central Government may by order restrict the disclosure of information relating to atomic plant, mode of operation, substances, mode of acquisition of materials, transaction, purchase, theory, design, construction, research, technology etc. of an atomic plant. Sections 123 to 126 deals with communications of which evidence cannot be given. Section 123 says that no one is permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the head of the department concerned who shall give or withheld such permission as he thinks fit.

Under this Act official communication is immune from disclosure. Public officer cannot be compelled to disclose official communication made to him in official confidence, when he thinks that public interest would suffer by such disclosure. Information as to the communication of offence and professional communication are also exempted from disclosure.

Section 52 of the Competition Act,2002, says that information relating to any enterprise , being an information which has been obtained by or on behalf of the Commission , without the previous permission in writing , shall not be disclosed. In the Bureau of Indian Standard Act, 1986, it has been laid down that any information obtained by an inspecting officer or the Bureau from any statement made or information supplied or any evidence given or from inspection made under the provision of this Act shall be treated as confidential.

The Central Civil Services (Conduct) Rules,1964, also prohibits unauthorized communication of information. By virtue of Article 19 (2), the State has made many laws like The Official Secrets Act which prohibits disclosure of official communication and enacted restrictive provisions in other laws on communication of information. In public dealings and state affairs high secrecy was used to be maintained by public officers as part of their duty. Confidentiality remained a condition of public service and violation of it attracts penalty including dismissal.

No Right to Information in the Private Sector
The Right to Information Act, 2005 is applicable in respect of public authorities established, owned or substantially financed by the Central Government, State Government, administration of Union Territories, panchayat, municipality or local bodies.  So far as private sector is concerned like partnership business, private companies and factories, multinational companies which have their head offices outside India, NGOs not financed by the government etc. the Act remains silent. Therefore private bodies or authorities are not under obligation to furnish any sort of information if asked for. The Act is operative in the public sector only. The Act has no application in the private sector.

Loopholes in the Right to Information
There are certain loopholes in the Right to Information. These loopholes have been identified within this short period of time of application. Firstly, the official mindset does not seem in favour of sharing any information. As per S.P. Sathe, the main obstacle is the attitude of the bureaucracy which is accustomed to working in closed corridors.  While most public departments may not say “no” directly to any information sought, but there are enough grounds in the Act on the basis of which information won’t be given or would be delayed, viz pretext of lack of manpower to compile the data or finalize the accounts, or safety of the document, etc. The researcher feels that this discretion that has been conferred upon PIOs may be used against the purposes of the Act, unless efforts are made to make the official mindset conducive to sharing information.
Secondly, The Act stipulates a penalty in case of information is denied without adequate reasons, but it is not harsh enough. There may be cases where administrative accountability can be dispensed by deliberate act of government in lieu of paying this meager amount. Rather denial to provide information should be made a much more serious offence with a heavier penalty, and if the denial is malafide then it should be made a ground for dismissal as well.
Thirdly, express bar on Jurisdiction of court gives a freehand to all administrative decisions under the Act. Although an appeal may lie to the Courts for violation of fundamental rights, there must be a provision for appealing to the court, in line with a similar provision that exists in the British Freedom of Information Act.
Fourthly, the Act does not help people other than citizens. At least NRI’s and concerned foreigners should be allowed to access to documents required so as to set a good international trend. Moreover, courts have interpreted Right to Information in preview of Article 21 of the Constitution which is guaranteed to each and every person irrespective of citizenship.
Fifthly, under Section 7(9) information may be declined if it disproportionately diverts the resources of the public authority. This provision gives a lot of discretion to the public authorities and safeguards must be provided to ensure that it is not misused. There also should be a provision to identify genuine requests so that the public authorities are not burdened unnecessarily.




Conclusion
In a society that suffers the curse of both arbitrariness and corruption, sunlight could be the best disinfectant. The advantages of transparency are far too many. Public interest in transparency will override the relative discomfort of the civil service against public disclosure. It is this overweighing public interest that has persuaded media opinion, public opinion, and even parliamentary opinion to scoring in favour of greater transparency. In any case, it may be difficult for the Government with the evolution of constitutional law to contend today that advices and opinions can still be kept as secret.

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