Introduction India is a democratic country. The term ‘democratic’ indicates that the constitution has established a form of government that gets its authority from the will of the people. When the government is formed of the members elected by the people then the people must be aware about the functioning of the government. So, democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold governments and their instrumentalities accountable to the governed.1 Constitution of India fulfils this obligation by providing right to information as a constitutional right. It is not specifically mentioned in Chapter III of the constitution relating to fundamental rights but it is included in the fundamental right, right to freedom of speech and expression to the citizens under Article 19 (1) (a) because for the achievement of right to freedom of speech and expression, RTI is the prerequisite condition. It has also been recognised by various courts in the landmark decisions in the Raj Narain case, S.P. Gupta case, Union of India vs Association for Democratic Reforms case and the ADR case among others.2 The Right to Information Act contains two parts, which are:
the right of citizens to access information under the control of public authorities the obligation cast on public authorities to disclose information on their own (proactive disclosure)3
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This act does not provide the absolute right to access information. Limitations are there on this right to access information. Restrictions to some extent are necessary but it must be on the reasonable ground. It is not an easy task to mark which restriction is reasonable and which is unreasonable. Government has to maintain a balance between reasonable and unreasonable ground of restrictions, for the proper transparency in the functioning of the government and related offices. It is the right to access information which establishes transparency and transparency provides good governance. Good governance happens when the government acts as a facilitator and not as a controller an agency for smoothly providing the public with different basic and other facilities. However, the government's role often tends to become that of a controller.4 |
The passing of RTI Act 2005 is a landmark in the history of Indian administration. It gives right to the citizens to know what is going on in the government offices or what the government is doing to find out what is right and what is wrong and to raise a slogan in case they find any wrong. Earlier SC also considered it necessary that people must know the working of the public authority. It says that in a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can but few secrets. The people of this country have the 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 bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor that should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil secrecy, the common routine business is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.5 |
There are more than 65 countries in the world, which have RTI laws. There are 9 states in India that had RTI laws, before this law was passed by the parliament. These are J & K, Delhi, Rajasthan, Madhya Pradesh, Maharashtra, Karnataka, Tamil Nadu, Assam and Goa. The Central RTI Act came into force on the 12 October 2005.6 With regard to good governance this act can play an important role to uncover, corruption in the public offices. This act is a legal tool that will help to check corruption and hold the various departments, agencies and officials of the government accountable. The act prevents arbitrary action by any government servant. The RTI Act proposes a mission statement of sorts by stating that it is essentially a practical roadmap detailing the ways by which citizens of India can gain access to information that can promote good governance.7 If any one finds some corruption or wrongdoing by using RTI then s/he can complain to vigilance agencies, CBI or even file an FIR.8 |
RTI Act and its boundaries RTI Act 2005 extends to whole of India except the State of Jammu and Kashmir. State of Jammu and Kashmir has its own RTI Act 2009. This act covers all bodies that come under government notification including NGOs that are owned, controlled or are substantially financed by the government. This act confers right to the citizens to access information held by a public authority. Now citizens have the right to know as to how the taxpayers’ money is being spent by the government. According to this act information means any material in any form including records, documents, memos, emails, 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 that can be accessed by a public authority under any other law for the time being in force.9 Under the RTI Act, all government offices including Rashtrapati Bhavan, the prime minister's office and the Supreme Court are public authorities.10 The file notings in the possession of public authority can also be disclosed under this act.11 The definition of information in this act is inclusive. It includes the right of the citizens to seek any information that is held by or under the control of any public authority and right to inspect work, documents, records and taking notes, extracts or certified copies of documents or records and taking certified samples of material. This right includes obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic modes or through printouts where such information is stored in a computer or in any other device.12 The right to seek information from a public authority is not absolute. Sections 8 and 9 of the act enumerate the categories of information that are exempted from disclosure. A Bench of Justices R.V. Raveendran and A.K. Patnaik while allowing disclosure of answer sheets of students in public examinations held that unless the examining body demonstrates that the answer books fall under the exempted category of information under Section 8 (1) (a) of the RTI Act, it will be bound to provide access to an examinee to inspect and take copies of his evaluated answer books, even if such inspection or taking copies is barred under the rules.13 Section 24 lays down that this act has no application to certain organisations. At the same time Schedule II of the act contains the names of the intelligence and security organisations that are exempted from the purview of this act. The exemption of the organisation, however, does not cover supply of information relating to allegations of corruption and human rights violations.14 Sections 27 and 28 themselves impose restriction on the right to access information. These sections give power to the central government, state governments and the competent authorities as defined in Section 2 (e) to frame their own rules and they may frame the rules that restrict the right to access information. These rules may be different in different states. Similarly, there may be conflicts between rules under RTI Act 2005 and State RTI Rules. It may dilute the main spirit of the RTI Act. Maharashtra government amended the Maharashtra Right to Information Rules, 2005, which mandates that a request for information “shall relate to one subject matter” and “shall not ordinarily” exceed 150 words.15 RTI activists are disturbed by the amendments brought about by the Maharashtra government in the RTI rules. According to RTI activist Krishnaraj Rao, “It was done only to scuttle the RTI act”.16 Further, under RTI Act 2005, 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.17 Any citizen can file an application for seeking information under this act but the following points should be taken into consideration to avoid the chance of rejection by the PIOs.
Use a white sheet of paper to write an application. There is no need to use note-sheet, or the court stamp paper. The matter can be handwritten, or typed. There is no compulsion of typing the content. Ensure the application is legible and easy to read. While asking for information there is no restriction on the number of pages. There is no restriction on the number of questions that can be asked in one application. However, it is advisable to ask with limited set of questions and only related questions with one application. One may ask as many short questions that he/she may like to. But don't ask for large information at one go. In the application always write your name and put your signature there is no need to mention your post/designation as any citizen has the RTI. Never ask a direct question beginning with ‘Why’, as it is liable to be rejected for not being covered under RTI. For example, questions like ‘why you failed to pass the bill?’ is liable to be rejected. Ask for reasons behind an “administrative” or a “quasi-judicial” decision under Section 4(1) (d), especially if you are an “affected person”. If the information sought is voluminous, it is better to ask it in the form of a CD to save on cost. Remember that, you do not need to write the reason for asking the information. Mention the payment details like BC/DD/IPO number, issuing bank/post office, date and cash receipt details towards the end of your application. Write the details of public information officer (PIO), name, address and so forth whom you want to apply to. In case you have problems locating your public information officer/assistant public information officer, you can address your RTI application to the public information officer, c/o Head of the Department and send it to the concerned Public Authority with the requisite application fee. The Head of Department will have to forward your application to the concerned public information officer. Do not mention the specific name of the PIO on your application form, as there is every chance that s/he might get transferred, or a new person is designated in his place. Overseas citizens of India (OCI) and Persons of Indian Origin (PIO) cardholders can also get information under this act.18
These points are very useful while seeking information under the RTI Act. Significance of the RTI The significance of RTI can be judged from the report of National Commission to review the working of constitution, under the Chairmanship of Justice M.N. Venkatachaliah, wherein it was pointed out that “Major assumption behind a new style of governance is the citizen's access to information. Much of the common man's distress and helplessness could be traced to his lack of access to information and want of knowledge of decision making process. He remains ignorant and unaware of the process which vitally affects his interest. Government procedures and regulations shrouded in veil of secrecy do not allow the clients to know how their cases are being handled. They shy away from questioning officers handling their cases because of the latter's snobbish attitude and bowwow style. Right to information should be guaranteed and needs to be given real substance. In this regard government must assume a major responsibility and mobilize skills to ensure flow of information to the citizens. The traditional insistence on secrecy should be discarded. In fact, we should have an oath of transparency in place of an oath of secrecy. Administration should become transparent and participatory. Right to information can usher in many benefits, such as speedy disposal of cases, minimizing manipulative and dilatory tactics of the babudom and last but most importantly putting a considerable check on graft and corruption.” Dr. Manmohan Singh, the prime minister of India has rightly said in his valedictory address at the National Convention on RTI that the implementation of the RTI Act is an important milestone in our quest for building an enlightened and at the same time a prosperous society. We must guard against the growth of professional middlemen in the use of this act as is seen in some other countries RTI is not a substitute for good governance. It has to support and aid the process of good governance.19 The objectives of the RTI Act 2005 clearly point out the significance of this act. It provides for setting out the practical regime of RTI for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority.20 I mention here few instances in which RTI proved to be an arm for getting justice social or natural. Mr Quazi got his post after a 11-year-long battle only with the help of RTI Act. He was removed from the post of General Secretary of Anjuman Tanzeem Achra, a Charitable Education Trust, through a no-confidence motion in 1999. But the original papers of the trust's no-confidence motion, which were kept in the Charity Commissioner's office, were substituted with forged papers in alleged collusion with office staff. Following this, the Charity Commissioner's office passed an order to oust Quazi. It was only when Qazi applied to the Charity Commissioner's office for a copy of the no-confidence motion that he discovered, to his horror, the documents were substituted. It was found that the attendance lists also had serious discrepancies; many members were dead or their names were fictitious and some were abroad when the ‘alleged’ election took place. He lodged a criminal case at the Additional Magistrate's Court, Mazgaon. Despite directives from the magistrate, the Charity Commissioner's office did not subsequently take any action on the forgery committed by the existing trustees. Qazi then filed a query under the RTI Act, asking about the status of the case. He got the reply within a month stating that the earlier fake no-confidence motion passed by the trust had been set aside and a fresh inquiry had been initiated against the trustees. In last, the Joint Charity Commissioner in his order stated that some members who ‘allegedly’ took part in the no-confidence meeting were not present and quashed the earlier order passed by the Assistant Charity Commissioner in 1999. Quazi, regained the post of the General Secretary of the trust, said that the RTI Act exposed the fraudulent methods used by the members to remove him from the trust. In an another instance, Sh. P. K. Agrawal sought information from the department of Central Excise and Customs regarding loss of revenue. But he was refused for providing information by the central public information officer (CPIO) and by the appellate authority (AA) though of different reasons stating that the information sought was motivated by individual interest and not public interest. It was also stated that the information sought was being investigated and providing such sensitive information could hamper the pace and direction of information. Finally, on 15 December 2009 the appellant filed an appeal before the Central Information Commission (CIC). The CIC, in its order dated 18 February 2010 for the case P. K. Agrawal vs. Central Excise, Customs and Service Tax Raipur, concluded that both the CPIO and the AA had failed to discharge their duties under the RTI Act. The CIC directed the Central Excise and Customs department to provide “sensitive” information relating to loss of revenue in the department to the appellant under the RTI Act. It also directed complaint proceedings to be initiated against the respondents under section 18 of the RTI Act. In addition to the above, the CIC directed proceedings under Section 19 (8) (b) of the act for Rs.100,000 in compensation to the applicant. With the help of RTI, it has come to be known that in the past 5 years, 42 personnel of the Chandigarh Police were booked in various corruption cases and 33 cases were registered under the Prevention of Corruption Act and 22 cases were investigated by the Anti-Corruption Branch of the Central Bureau of Investigation (CBI) and others were probed by the Vigilance Wing of the Chandigarh Police. Most of these policemen booked for graft charges have been convicted. In another instance, L. Lakshmi Narayanan, an assessee, had filed an RTI petition with the IT department in Chennai asking for information as to why was there a delay in the payment of his IT refunds for 2003–2004, 2005–2006, 2006–2007 and 2008–2009, amounting to Rs 3,32,457. The department, however, refused to provide Narayanan the information contending that such information did not involve any larger public interest. The CIC passed an order which said that information on refunds is covered under the RTI Act. CIC clarified that the appellant had not sought any information which the public authority is holding in fiduciary capacity. While directing the Income Tax Department to disclose information for the inordinate delay, it was also ordered to issue refunds within 3 months. The CIC also rapped the department for failing to appear in a hearing arranged by the commission where the appellant was present.21 Reply to an application filed under the RTI Act has revealed that 23 ministers of the Maharashtra State have spent an amount of Rs. 12.75 crores on the repairs of their accommodation at the Malabar Hills of Mumbai. The co-operative minister has spent Rs. 1.09 crore while the Chairman of the Legislative Assembly has spent Rs. 1.5 crores. Critics have raised the question of huge expenditure on repairs of the houses which appears to be beyond reasonable limits.22 The President of India is not immune from the application of RTI Act. The Delhi High Court has stated that every Indian citizen is entitled to have knowledge about the donations handed over by the President of India. Justice Vipin Sanghi said, “Every citizen is entitled to know as to how the money which is collected by the State from him by exaction has been utilised. Merely because the person making the donations happens to be the President of India, is no ground to withhold the said information.” What is important is that it is a public fund that is being donated by the President and not his/her private fund placed at his/her disposal for being donated amongst the needy and deserving persons.23 Although the right to access information is a part of fundamental right and passing of the RTI Act is a milestone in this regard, still there are a number of barriers that need to be removed. Citizens including RTI activists are facing a number of problems while accessing information. No doubt it is not possible to give absolute right to access information. In the interest of the national security some boundaries are necessary and good. But the boundaries must be reasonable. Unreasonable boundaries always make any act unsuccessful. Firstly the imposition of fee for seeking information is not fair. It is the right of the citizen to access the information but this right cannot be controlled by imposition of fee. Exemption has been given only to BPL families. Charges may be imposed in case the information sought is related to other person. But in case of personal information or information related to the public interest the initial application with money is a hurdle. Further, the applicant is also required to pay the cost of providing the information. Even the applicant is required to pay fee for the inspection of the documents. Market cost of a diskette is Rs. 10 but applicant is required to pay Rs. 50 for obtaining information in the diskette. Most of the PIOs are not much acquainted with RTI Act. Lack of information and knowledge about this act is a hurdle in its strong and effective implementation. Training of the officials and the systematic management of the record are also lacking. Indian Prime Minister Dr Manmohan Singh has also expressed concern about the difficulties being faced by information-seekers under the RTI Act. At the third convention on RTI, organised by the Central Information Commission, focusing on ‘RTI and Transparent Governance’, he admitted that in many places adequate attention had not been paid to training personnel and modernising record management systems. The Prime Minister called on officials for more proactive and voluntary disclosure of information.24 Awareness and illiteracy are the main hurdles in the success of this act. Under Section 4 of the RTI Act information is uploaded on the web sites. But the question is how many people know how to use the internet. Illiteracy and poverty are the major obstacles in the use of this right under the act. The penalty provisions are not strong enough to create fear in the mind of the public officers in case of non-disclosure of information or denial of information without sufficient cause. Public officers generally take it easy for providing information. Every PIO will be liable for fine of Rs. 250 per day, up to a maximum of Rs. 25,000 for
not accepting an application delaying information release without reasonable cause malafidely denying information knowingly giving incomplete, incorrect, misleading information destroying information that has been requested obstructing furnishing of information in any manner
The Information Commission (IC) at the centre and the state levels will have the power to impose this penalty. The Information Commission can also recommend disciplinary action for violation of the law against an erring PIO.25 The official mindset is also a barrier of the RTI. No official in normal conditions wants to share information. They generally prefer not to share information, and therefore people find it very difficult to secure information from them. The act itself provides for several grounds on which the public information officer can turn down the application. Although one is allowed to appeal to the next higher authority this is just making the matter worse. Because the act is based on computerised records of data, it may take a long time in computerisation of such vast data and therefore making it doubtful whether the act would be implemented in a time-bound manner.26 Top Conclusion and Suggestions This study reveals that RTI Act empowers the citizens to access information and to know about the functioning of the government and its related offices. Now one can know the public spending. It creates a fear in the minds of the officials and they avoid refusing the citizen to give information. In the interest of the democracy secrecy is also must but what will be the level of secrecy is a debatable issue. No doubt, secrecy is must but because the government is for the people, the level of restrictions on the access of information must be put after considering the interest of the people. The mind set of the officials needs to be refreshed. This study stresses that the initial application fee for seeking information should be abolished. All the departments of the centre and states should categorise as to which information cannot be disclosed. All information except relating to national security and integrity, about the functioning of all government or its related departments of centre and states should be uploaded on their web sites. |
This study stresses that training programmes for the PIOs and other authorities associated with machinery/system for providing information should be launched by the central government and the state government, so that they can be made well versed with the RTI Act and can handle the problems of the information seekers in a better way. All the departments dealing in public affairs should be directed to upload all information relating to the public welfare works and its progress and procedure on the web sites and its accessibility should be made free of cost. Penalty provision in case of unreasonable refusal for accessing information should be made strong. |
There is also strong requirement for spreading the awareness among the people in general about the RTI Act and its significance. There is no need to give reasons for seeking information but to avoid the blackmailing by the use of RTI; the reason for seeking information should be given along with the name, signature and full address of the information seeker. A coin has two sides, similarly this act is very useful and may be misused, but by the misuse of the act one should not be disappointed. If anyone uses the information to blackmail a person/official then that person/official can take the assistance of Indian Penal Code and register an FIR against the blackmailer. Necessary amendments can be made in order to avoid the misuse of this act. In this respect there is also need of some modifications in Section 21 of the RTI Act. For making this act successful, its effective implementation is obligatory. |
Succinctly, it would not be exaggeration to say that giving right to access information to the citizens by RTI Act is a step towards transparency in the public administration which is the tenet of the democracy. |
Top Footnotes http://righttoinformation.gov.in/webactrti.htm (last visited 20.1.2012) TopBack http://newsaboutrtiact.blogspot.in/2008/07/preamble-of-right-to-information-act.html (last visited 20.1.2012) TopBack http://newsaboutrtiact.blogspot.in/2008/06/article-about-rti-act-2005.html (last visited 22.1.2012) TopBack http://www.foiadvocates.net/en/india-2005 (last visited 22.1.2012) TopBack State of UP vs Raj Narain, AIR 1975 SC 865 (last visited 28.1.2012) TopBack http://www.righttoinformation.org/faq.html (last visited 28.1.2012) TopBack http://india.5thpillar.org/∼pillar/india/HowToUseRTI.html (last visited 2.2.2012) TopBack G:\RTI\Right To Information Act - FAQ!htm (last visited 2.2.2012) TopBack Right to Information Act 2005. TopBack RTI\InfoChange India News & Features development news India - Goa governor summoned by state information commissioner.htm (last visited 4.2.2012). TopBack CIC Decision No. ICPB/A-1/CIC/2006 dt.31.01.2006. TopBack Section 2 (j) of Right to Information Act, 2005. TopBack http://www.thehindu.com/news/national/article2354447.ece?css=print (last visited 6.2.2012). TopBack http://rti.india.gov.in/manual4.php?pageid=2 (last visited 6.2.2012) TopBack http://dailypioneer.com/nation/64695-hc-seeks-maharashtra-take-on-rti-rule-change.html (last visited 6.2.2012) TopBack http://english.doolnews.com/maharashtra-govt-amends-rti-rules-rti-activists-disturbed-12649.html (last visited 8.2.2012) TopBack http://www.caluniv.ac.in/Global%20mdia%20journal/WINTER%202010%20ARTICLES/Article%204. pdf (last visited 6.2.2012) TopBack http://www.indg.in/right-to-information/process-to-get-information-under-rti-act/view?set_language=en (last visited 6.2.2012) TopBack Barowalia, J. N. (Dr.) (2010), Commentary on The Right to Information Act, Universal Law publishing co. New Delhi TopBack http://orissa.gov.in/e-magazine/Orissareview/nov-2006/engpdf/nov-or-06.pdf (last visited 8.2.2012) TopBack http://rtigateway.org.in/Documents/News/Mar-2010.pdf (last visited 8.2.2012) TopBack http://www.rtifoundationofindia.com/rti-reveals-huge-expenditure-maharashtra-ministers-1727 (last visited 10.2.2012) TopBack http://indiawires.com/11419/news/national/citizens-entitled-to-know-of-donations-given-by-president-hc/ (last visited 10.2.2012) TopBack G:\RTI\InfoChange India News & Features development news India - The right to know htm., according to the preliminary findings of the ongoing study by the Right to Information Assessment and Analysis Group (RAAG) and the National Campaign for People ’s Right to Information (NCPRI) in partnership with a number of academic institutions and voluntary agencies across five states and 120 villages. “Almost half the PIOs (public information officers) interviewed in rural India said they were not aware that they were PIOs”. TopBack http://dimapur.nic.in/RTI.htm#q30 (last visited 12.2.2012). TopBack G:\RTI\Right to Information in India.htm (last visited 12.2.2012) TopBack |