Transparency and free access to information about the functioning of state institutions is one of the basic requirements for functioning of democracy. As “information” in the Government is created during discharge of official duties by Government functionaries it is natural that this should be freely available to the citizens for whose welfare the information has been supposedly generated. Many international institutions like UNDP, World Bank, Asian Development Bank and African Development Bank have recognized transparency and free access to information as one of the important features for good governance. Flow of information from the Government to the citizens makes the Government more responsive to community. On the other hand restriction on the free flow of information makes the people powerless and alienated from the process of governance.
History of Right to Information in India
Right to information is inherent in our Constitution in form of Article 19(1)(a) under Fundamental Rights-freedom of speech and expression. It has been held in a number of court judgments including the Supreme Court judgment in the case of Secretary, Ministry of Information and Broadcasting, Government of India & Ors. v. Cricket Association of Bengal & Anr. [(1995) 2 SCC 161] that the freedom of speech and expression includes the right to acquire information and disseminate it. However as the provision was not explicit and as there was no formal mechanism for seeking information the request for demand for information was rarely entertained sympathetically.
The struggle for Right to Information was started by an organisation Mazdoor Kisan Shakti Sangthan (MKSS) which was founded by activists Aruna Roy and Nikhil Dey in 1990 in Rajasthan. During its struggle for minimum wages and other developmental works the organisation started the concept of jan-sumwai in which the organisation procured records regarding work done by Government agencies. The details were publicly read out and explained to the local people who verified the wage payments or work done through individual and collective testimonies. This method required access to the Government records. However, as there was no formal mechanism for obtaining such documents, the organisation relied on unofficial means or some sympathetic officials for obtaining such record. First jan-sumwai was held in December, 1994 which underlined the importance of Right to Information and the organisation started demanding amendment in Panchayati Raj Rules which were subsequently amended in July, 1997.
In the meanwhile, National Campaign for the People’s Right to Information (NCPRI) was founded by Aruna Roy and some other activists in 1996 with a mandate to work for bringing in an effective legislation at the centre as well as the states for providing right to information to the people. Under the pressure of activists as well as international agencies a number of states enacted their RTI Acts. These were Tamil Nadu (1996), Goa (1997), Madhya Pradesh (1998), Rajasthan (2000), Maharashtra (2000), Karnataka (2000), Delhi (2001), Assam (2002), and Jammu and Kashmir (2003). A national Bill, was placed in Parliament in June 2000 and was passed as the Freedom of Information Act in 2002, but was not notified. Another law, Right to Information Act was passed in 2005 and it came into effect on 12th October 2005.
Salient features of RTI Act, 2005
Important features of the RTI Act are as under:
- Every citizen has right to claim information from public authorities.
- Public authorities have an obligation to provide the sought information to the applicants. However this is subject to certain restrictions primarily relating to national security, personal information and third party information.
- A large chunk of information has to be placed in the public domain by ways of manuals prescribed under the Act.
- Public authorities have to provide information as early as possible as but not later than 30 days (not later than 48 hours in the matters pertaining to life and liberty of an individual).
- In case of delay, the Central Information Commission or the State Information Commission can impose a penalty of Rs.250/- per day subject to a maximum of Rs.25,000/-. The Commission can also recommend disciplinary proceedings against the officials guilty of the not providing information with malafide intention.
- Fee has been prescribed for seeking information. However, persons below poverty line have been exempted from payment of fees.
- All the Government departments along with a number of bodies which receive substantial funding from the Government have been brought under the RTI.
- Information related to a third party i.e. other than person seeking information and public authority can also be provided but this depends upon the view of the Public Information Officer. Third party has a right to represent or object to the disclosure of information.
- In case of denial or not providing proper information an appellate structure has also been provided. First appeal lies with the First Appellate Authority nominated by the Department while the second appeal lies with the Central Information Commission/State Information Commission.
- Jurisdiction of local courts has been barred under the Act i.e. appeal against decisions of CIC can only be filed in the High Court.
Central Information Commission
Section 12-14 of the RTI Act provide for setting up of Central Information Commission. The Commission is headed by Chief Information Commissioner. Apart from him, the Commission comprises of a number of Information Commissioners whose number shall not exceed ten. Similarly, Section 15-18 provides for setting up of State Information Commission. These Commissions act as the Second Appeallate Authority and also exercise supervision and monitoring over the functioning of Public Information Officers. During the course of their functioning these Commissions and particularly the Central Information Commission, have kept a strong vigil over functioning of administrative machinery relating to the implementation of the Act. However, their performance has often been restricted by ever increasing number of appeals and fluctuation in the actual number of Information Commissioners. This has resulted in increase in pendency as well as waiting time for hearing of appeals. As per annual report of CIC for the year 2011-12, the number of appeals filed, which was 15426 in 2008-09 has increased to 33,922 in the year 2011-12. Although the disposal of appeals has also increased but rate of disposal has been slowly declining. Presently, the time taken for an appeal to come up for hearing is between six months to about an year.
Issues pertaining to RTI
During the course of its implementation several issues came up some of which were settled while others are still in the process of being resolved. An important issue that came up is the definition of information. Supreme Court in its decision in the matter of the Central Board of Secondary Education & Anr Vs.Aditya Bandopadhayaya & Ors. (Civil appeal No.6454 of 2011) stated that ‘information’ for the purpose of this Act would mean information held by the PIO or under his control. However, if the information is not held by the PIO nor is he required to maintain the information under the laws or regulations, the public authority is not under obligation to provide that information. In another case no.419/2007 Dr.Ceisa Pinto Vs. Goa Information Commission, the Bombay High Court ruled that the definition of information cannot include justification why some things were done.
Another issue that has come up is that some of the institutions have objected to being covered under the Act claiming that they are not public authorities under the Act. Most recent of these cases is that in which the CIC has held political parties to be public authorities. While deciding an appeal on 3rd June 2013, which was filed by RTI activists Subhash Aggarwal and Anil Bairwal, the CIC has taken a stand that political parties are public authorities and hence are obliged to provide information to the applicants under the RTI Act. While deciding the issue the CIC has taken note of the fact that political parties are being substantially funded by the Government in a number of ways which include granting of plots and accommodation at concessional rates, free airtime at All India Radio & Doordarshan and tax exemptions. Other factors which affected the decision of CIC were that the political parties are doing a public duty and also that various constitutional and legal provisions vest these parties with various rights and liabilities.
Most of the political parties are not comfortable with this decision and “The Right to Information Amendment Bill, 2013” was introduced by the Government. This amendment bill sought to amend Section 2(h) of the RTI Act which defines the term “public authority”. As per this bill organisations registered as political parties under “The Representation of the People Act, 1951” were not to be considered as public authorities under the said Act. However, the bill has not been passed by the Parliament as yet and has been referred to a parliamentary panel.
One more issue that has come up is the bringing of corporate entities under the RTI Act. This issue has been prominently raised by the left leaning political parties though most of the RTI activists have not taken a stand on the subject. Apart from the fact that the corporate sector utilizes money from the common public in the form of share capital a large number of entities in the private sector are performing functions similar to the public sector. For example let us consider banking. If a public sector bank has to come under RTI there appears to be no reason why the private sector banks should not follow suit. After all both perform the same functions and are subject to same legal provisions. There is no difference in their interaction with and impact upon the common public. Similar is the case with a number of other fields like insurance, telephony etc. where the private sector is performing functions similar to public sector.
About eight years have passed since the implementation of the RTI Act. During this period, it has established itself as an important tool in handling corruption and inefficiency in the Government. Although there have been instances of misuse of the Act for settling personal scores or for harassing the officials, by and large it has served its purpose well. Efforts from a number of activists have brought information about a number of subjects in the public domain and have made the administrative machinery a bit more responsible and reasonable.