lawyers in India

Right To Information

Written by: Pradip Kumar Das - Lecturer of law in Haldia Law College, Haldia, West Bengal
Right To Information
Legal Service
  • The Right to Information Act 2005 is a law enacted by the Parliament of India giving Indians (except those in the State of Jammu and Kashmir who have their own special law) access to Government records.

    Under the terms of the Act, any person may request information from a "public authority" (a body of Government or instrumentality of State) which is expected to reply expeditiously or within thirty days. The Act also requires every public authority to computerize their records for wide dissemination and to proactively publish certain categories of information so that the citizens need minimum recourse to request for information formally.

    This law was passed by Parliament on 15 June 2005 and came into force on 13 October 2005. Information disclosure in India was hitherto restricted by the Official Secrets Act 1923 and various other special laws, which the new RTI Act now overrides.

    Disclosure of Government Information in India is governed by a law enacted during the British rule, the Official Secrets Act of 1889 which was last amended in 1923. Though the intent of this law was to secure only information related to security of the State, sovereignty of the country and friendly relations with foreign states, it contained provisions which could make it a crime to disclose even non-classified information. Civil Service conduct rules and the Indian Evidence Act put further restrictions on government officials' powers to disclose information to the public.

    In 1975, the Supreme Court delivered a judgement that has been described as a "landmark", which held that "the people... have a right to know every public act, everything that is done in a public way, by their public functionaries".

    The doomed FOI Act led to sustained pressure for a better National RTI enactment. The first draft of the Right to Information Bill was presented to Parliament on 22 December 2004. After intense debate, more than a hundred amendments to the draft Bill were made between December 2004 and 15 June 2005, when the bill finally passed. The Act came into effect on 13 October 2005.

    It is applicable to all constitutional authorities, including the executive, legislature and judiciary; any institution or body established or constituted by an act of Parliament or a state legislature or by order or notification of appropriate government. In special circumstances bodies "owned, controlled or substantially financed" by government, or non-Government organizations "substantially financed, directly or indirectly by funds" provided by the government are also covered.
    Private bodies are not within the Act's ambit directly. However, information that can be accessed under any other law in force by a public authority can also be requested for. The Act also explicitly overrides the Official Secrets Act and other laws in force on 13-Oct-2005 in the event of any inconsistency.

    In terms of the section 2(f) of the Act, information has been defined as 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.

    The Union Cabinet, on July 20, 2006 gave its nod to an amendment to restrict access to file notings under the RTI law. Restrictions on access to material on the basis of which Cabinet takes decisions CIC will have powers to undertake research and conduct conferences to promote RTI.

    In terms of the section 10 of the Act, only that part of the record which does not contain any information which is exempt from disclosure and which can reasonably be severed from any part that contains exempt information, may be provided.

    In the first year of National RTI, 42,876 (not yet official) applications for information were filed to Central (ie.Federal) public authorities. Of these 878 were disputed at the final appellate stage - the Central Information Commission at New Delhi. A few of these decisions have thereafter been mired in further legal controversy in the various High Courts of India. The first stay order against a final appellate decision of the Central Information Commission was granted on 3.May.2006 by the High Court of Delhi in WP(C)6833-35/2006 cited as "NDPL & Others. versus Central Information Commission & Others". The Indian government planned to amend the RTI in 2006 but was compelled to abandon the changes due to public outcry.

    Right to Information Act 2005 empowers every citizen to:

    • Ask any questions from the Government or seek any information
    • Take copies of any government documents
    • Inspect any government documents
    • Inspect any Government works
    • Take samples of materials of any Government work

    The following are exempted from the purview of the Act:
    • Matters pertaining to the national sovereignty and integrity
    • Information expressly prohibited to be published by a court of law
    • Information regarding commercial confidence, trade secrets or intellectual property etc.

    “Right to Information is a powerful democratic tool to protect the interest of the vulnerable and the marginalized sections":

    It is an important instrument to realise the fundamental right under article 19(1) of the Indian Constitution. Based on the Right to Information clauses, this Act exemplifies the Freedom of Speech and Expression. The citizens of India have the right and freedom to speak and express and make the system opinionated and democratic and this tool further enhances the process as it gives the citizens the right to exercise it in the way of seeking information on various issues and help the same for effective participation in the working of the various governmental process.

    It is an important tool to ensure the democratic functioning of public institutions. The Right to Information lays down the various procedures and frameworks for explaining the working of the various public institutions. This explanation of the procedures enables the citizens to assess the process and identify the various loopholes and therefore exercise their right to speak and express toward the effective and democratic functioning of the public institutions.

    It is an effective means to enforce transparency and accountability on the bureaucracy. As the Right to Information, as described above, is an important tool for ensuring the democratic functioning of public institutions, it therefore also explains that how it also becomes an important tool for the citizens to be aware of the processes of transparency and accountability of the bureaucracy towards its citizens.

    It is also an effective tool for curbing bureaucratic Red-Tapism. For example, if there is an application filed in any government body for any information, and if the process is delayed, then this tool becomes extremely effective in terms of getting to identify the loopholes and fallacies in the process as the tool also helps in assessing the level of transparency and accountability of the public institutions towards its citizens, which further smoothens the process of the democratic functioning of public institutions, as explained above.

    The Act is a means of arousing public opinion by raising public awareness. The Right to Information Act provides and simple and easy procedure for the masses to access information regarding most government and bureaucratic processes. It therefore makes it easier for the common man to gather information and be more aware. Ever since the Act was introduced, an astounding number of RTI applications have flooded government offices, clearly indicating the interest of the masses in the functioning of public bodies.

    The ability of this Act to raise public awareness is therefore tremendous. Whether it is regarding the operation of a local rationing office, or whether it is regarding the functioning of a central or state level department, the people are now empowered by this Act to gather information about the way that the taxes are spent and to hold elected representatives who occupy public offices responsible to their promises and the duties of their position. Based on the knowledge acquired through the Act, public opinion has been generated on a wide variety of issues at different levels.

    It is an important means of eliciting the participation of the common man in crucial decision making processes. By making people aware about the various processes and procedures of governance, the Act increases public consciousness. A survey of the opinions of people could provide a rich source of information to public officials and help make critical decision-making processes more suited to the needs and sensibilities of the people. The Act therefore increases the stake of the masses in the governance of their country, by encouraging both direct and indirect participation.

    By allowing public access to file notings the Act makes it possible for people to know not only decisions taken by public bodies, but also how they were arrived at, thus upholding democracy in its true spirit. A government file has two parts- on one hand it has the documents of the matter under consideration, while on the other hand, it has the ‘notings’ or comments made by those public authorities deliberating over the matter. These notings may include the particular aspects of the document that do not appeal to the person along with the reasons for the same, the aspects which do appeal and why they do, and any other personal opinions on the document that the officer may have to make.

    By making the files of these documents available to the people, file notings, which are an integral part of these documents, can also be accessed. This throws open not just the decisions that are taken by elected representatives of the people, but also provides access to information regarding why these decisions were taken. By including the provision to access file notings, the Act has made itself an effective tool to maintain democracy in its true spirit. It is a well conceived means of ensuring the transparency of all public bodies and officials.

    It could go a long way in checking corruption and holding elected representatives of the people who hold public offices accountable to their responsibilities and promises. For instance, if an important and necessary decision is being unnecessarily held up by certain public officials who have vested interests in delaying the procedure or are demanding bribes, access to file notings exposes them to public scrutiny and throws them open to public questioning. In order to avoid this, a natural tendency would be to pass such decisions. Access to file notings could be beneficial in another way also, i.e. by informing people about the genuine concerns that officials may have about taking certain decisions. This would also make the masses more responsible as they would then understand the potential controversies their demands could generate.

    Right to Information should be curtailed and the release of file notings can be dangerous to the smooth functioning of democratic machinery.

    a. The Right to Information is indeed dangerous to the smooth functioning of the democratic functioning which can be sighted with the following example to begin with:

    The Indian Army recently asked the Centre to let it come under the Second Schedule in the Right to Information Act, 2005. National security is no longer the threat why the Army wants to remain outside the RTI. In a recent internal presentation, the army has said that a bulk of application it receives are highly “individual", seeking “personal information", and therefore manipulating a law that is meant to serve a “larger purpose of public interest".

    The Army has received 906 Applications in the nine months between April and December 2006, out of which 88 fall in the category of “personal information" dealing with processing of commissioning, career progression, deferred or denied promotions, nominations, postings and grievances very specific to the applicant.

    Applications that trickled down in during April-June last year were just 31 Applications, but with increased awareness, it zoomed up to 746 in just four months between September to December in 2006.

    And increasingly, the petitioners are challenging the no supply of this personal information with appellate authorities and even the Central Information Commissioner, which has clearly caused anxiety in the forces.

    The Army, which has been included in the Schedule I of RTI, basically wants to be transferred in Schedule II, which exempts it from disclosure of all information except for matters of corruption and human rights violation.

    Hence, particularly in the Indian context, it places a huge burden on administration diverting time and energy from core functions to the clerical jobs of information gathering.

    b. Misuse of Information

    A large number of Indian population still struggle with harnessing the bare minimum resources. Under such a circumstance, to think that majority of people have strong moral convictions, strong enough not to share the information with a third party in ways that it can not be misused, would be perhaps, over judging their judiciousness.

    Under the Right to Information, there is no provision to check the credentials, background, particulars etc for every person who comes to gather the information. And so, the chances that this information can be exploited by an external agency are rather high. And the Government, understanding the sensitivities of the matter, would certainly not want to harm itself. An alternative way out can be taking affidavit from the people seeking information, so that at least there is some form of credibility and responsibility on part of the person.

    c. Risking own Officials

    Another important aspect is that amidst the transfer of information to anyone who asks it, the government risks its own officials against private feuds or conspiracies. It is well noted even in the newspapers that individual bureaucrats are targeted under the umbrella of Right to Information. This information is used to resolve personal biases, and hence, is not in the interest of ‘General public’, as per the central theme of the Act. And with so many undaunted officials, who take risk of their lives to disclose underhand activities that go on in various departments, there are no security measures to protect those officials, who go out of way to perform their job.

    In line to the above point, with the increasing number of Right to Information Applications flooding offices are we saying that giving information viz. a viz. promotions, transfers etc. is more pertinent than the core functioning of Government? Because, undoubtedly, too much information dissemination reduces the efficiency and outputs that the Government is expected to give.

    An important aspect is also that ultimately, who uses the Act? It is widely proven that only the elite, educated masses and people who are educated and know how to play with the lacunae use it. For example, the Corporate Organizations, who take information and use it against their competitors.

    Example: Even in Canada, it is established that 41% of the Right to Information is used by Corporate Organizations for their own Commercial Interests.

    Also, as said in the Act itself, there are provisions, wherein suitable measures should be taken to create awareness amongst the masses. This has to be done through Mass Awareness Programs by the Government. Also, there is a provision, wherein, RTI has to be taught to students to Std. VIII and IX for them to be strong in its usage. However, no such introduction in the curricula has been noticed so far, also, not many measures have been taken for RTI Awareness per se, leaving its usage to the selected few in the society.

    Another important example which brings into notice the lack of clarity in the Act can be understood by the following example regarding the Defense Purchases in the country:
    Under Section 8 of the Act, all matters viz. a viz. national security, sovereignty, law enforcement come out of the purview of the Act. Whenever a defense deal is struck, it becomes a news in the top economic newspapers, foreign newspapers etc. wherein, we read in advance, what is it that the defense department is going to order from which country and how many of these types of weapons are going to be purchased. But, the same information, which is available to foreign countries, is not available to our own citizens. This shows the loopholes that the Act has and certainly, this type of exemption should be reduces as much as possible, if RTI is to be properly utilized.

    d. Political Motivation
    An example of the Political Motivation which the Act involves can be well understood by the following example:
    In the original Bill on RTI with respect to Constitution of Central Information commission, it was stated that the Information Commissioner and Deputy Information Commissioner shall be appointed by Hon. President on the recommendation of a Committee consisting of Prime Minister, Head of Opposition and Chief Justice of India. But, in amended version to RTI, it has been stated that “Union Cabinet Minister to be nominated by Prime Minister".

    This amendment in the new Act has faced a lot of criticism regarding the political interference, because, certainly, now with this change, the Representation of Government increases to two and hence, the transparency is lost, which is the main objective of the Right to Information Act.

    Hence, the fact remains that there is no limitation to the information that one can ask, but the time frame remains fixed. So, once again, the resources are diverted on flimsy issues, but because, apparently, since it is in the larger interest of the public, hence, can not be questioned by the authorities.

    The RTI allows the masses to access information that is crucial to decision-making processes. If based on such information, there is a desire on the part of the masses to participate more actively in such processes, the whole purpose of establishing democratic machinery with elected representatives and its decisiveness is defeated. This also creates lack of confidence in the bureaucrats and the state bounces back on the people. This feeling of being threatened by the oncoming of the Right to Information Act has basically made them feel unsecured and they by any chance or by hook or crook try and make some process unreachable to the common masses. This they had successfully done by keeping the file notings under their purview and the common masses were kept out of the reach of the File Notings of any cases. This process of keeping the file notings on plans, schemes, programs and projects of the government that relate to social and developmental issues were decided not to be disclosed to the common masses have been purposefully done. This is indeed a very valid point because file notings under confidential matters becomes very important to be kept under cover to at least protect him from any malicious intentions of some parties. And as pointed by Mr. Dasmuni, the Parliamentary Affairs Minister, such exemptions have been made in the US, UK and Australia as well.

    e. Promoting Electronic record Keeping and Facilitation of information Management

    There is also another issue in the Act which needs to be addressed, which is that, under the Right to Information Act itself, it is said that all necessary measures be taken to promote the E-Record Keeping and facilitation of Information Management.

    On understanding the Governments’ working more closely, much of the government’s work is still done through files on paper rather than E-mail communication between bureaucrats. Normally, file notings are handwritten and are part of related documents on records. Usually, the photocopy of original documents is provided to persons requesting them. So, even if there is a thrust to make information communication more IT savvy, how can absence of documents without copies of ‘hand written’ file notings assure more transparency?

    f. RTI is an expensive Affair

    RTI has also been found to be an expensive prospect for the bureaucracy because the material for the information sought has to be paid in cash of Rs.2 for each paper and while filing an application under the right to information a person has to pay Rs.10 for the court fees stamp for each letter. Though it is said that the information is for free if the information seeker comes under the BPL (Below Poverty Line) but actually it is a far cry for the people below the poverty line. It is basically the tool for the elite and mass based participation is very few and accessibility for the poor is highly situational.

    It is inclusive in philosophy but it is highly differential in practice. For example, in poor state like Orissa, if a person coming under BPL asks for the information under the RTI, he will get information regarding the food supply from the government and the amount supplied by the government but he will be debarred from getting information regarding the quantity of food grains coming in his ration shop. In all possibility, he would not be left with much to do in the absence of this information except for filing a case and awaiting the hearing.

    RTI in its contemporary form needs to have a number of checks and balances so as to avoid creating ruckus in the system with overflow of information and information seekers. Too much de-centralization might also outweigh the protected interest of the government while seeking information.

    Cycle of Governance given by Aristotle also discusses the functioning of a cyclical process which is followed in the political system of the world. Such as monarchy (the rule of a king) which is followed by aristocracy (few richer class people) which is again followed by democracy. When a democracy is in a distorted form, it is a mobocracy which is the phase of chaos and confusion. Mobocracy is again followed by oligarchy (a rule of the politically powerful people). According to the theory, we are in a state of mobocracy where there is utter confusion wherein one needs to actually discuss and understand whether we need democracy where few bureaucrats’ rule and we trust their judgment and decisions or we create a situation of indeciveness and play a blame game or according to the theory move on to oligarchy form of governance where few politically powerful people rule. For example, if the Right to Information is given to the people and there is questioning at every possible step about the policies decided at the bureaucratic level, then this is also a sign of having no faith in our bureaucratic functioning. Therefore, Right to Information should be curtailed and the release of file notings can be dangerous to the smooth functioning of democratic machinery.

    To conclude, in our understanding, RTI is rather dangerous to the functioning of the democracy if it continues to function with its existing inconsistencies and loopholes. There is no denial of the fact that Right to Information Act can become an important tool to improve and make the entire framework of bureaucratic functioning more people centric and efficient. However, at the same time, there are certain loopholes in this Act, which range from overburdening the bureaucracy with person centric information viz. a. viz. transfers, postings etc. to political lobbying as explained above, which ranges from its actual usage by the Corporate and elite to a dual approach adopted by the Government itself as can be seen from the example of Defence related information. These issues and all of them as addressed above, if addressed at this stage, will ensure greater responsibility, not just on the part of the citizen’s in terms of exercising this right, but also a better response from the public authorities on whom this right is exercised.

    This would ensure that the Act goes a long way in achieving its true purpose- building a responsible democracy by maintaining transparency and accountability.
    Right to Information should be curtailed and the release of file notings can be dangerous to the smooth functioning of democratic machinery.

    3. ORF Strategic Trends, Vol. III Issue. 22; June 6, 2005, Right to Information and Local Self Governance: Challenges and Options
    By Niranjan Sahoo

    The author can be reached at: [email protected] / Print This Article

    The Need For The Right To Information: It has taken India 82 years to transition from an opaque system of governance, legitimized by the colonial Official Secrets Act, to one where citizens can demand the right to information.

    RTI - A Real Step To Ensure Good Governance: The date of 12th October, 2005 shall be remembered as a new era of empowerment for the common man in India. With the passing of the Right of Information Act on the aforesaid date, a faceless citizen is now blessed with a tool with the help of which he can now demand from the high and mighty in the government to know the details of every action they take, professedly on behalf of the people.

    Should Right To Information Have Been Granted As A Fundamental Right?: Since June 2005, when Right to Information Act, was passed, it has been hailed as the hallmark of democracy for the reasons that it purports to make, as regards government information, disclosure the norm and secrecy as the exception.

    Right to Information: "If you have knowledge, let others light their candles by it." This is the philosophical underpinning of the freedom of movement. Freedom of information and in particular, the right of access to information held by public bodies, has attracted a substantial amount of attention recently.

    Exemptions from disclosure of information under RTI: The Right to Information Act, 2005 has been probably the most discussed law of the recent times and also has given much more power to the people than any other law.

    Right to Information - An Anti-Corruption Tool: Basically, this article talks about transparency including right to information and also how it does work as an anti corruption tool.

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