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.
Conclusion
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.
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