PUBLIC ADMINISTRATION PROJECT

ON

RIGHT TO INFORMATION ACT(2005)

BY-:
PRASHANT TYAGI
 RIGHT TO INFORMATION ACT (2005)

In a country that has the dubious distinction of topping almost every ranking of the
world’s corrupt, bribe-taking countries, a law called the Right to Information Act is
altering the equation between the gigantic government and its vast citizenry.
The Right to Information Act — popularly known as RTI — was enacted as national
law five years ago to expose the opaque nature of governance in India.
The Freedom of Information Act, 2002 was repealed and the new Act came into force
on 12th October, 2005. The preamble to the Act affirms that '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.' The objective, as stated in the Act, is 'to provide for
setting out the practical regime of right to information 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.......'
The RTI Act (Cluase 3) provides that 'subject to the provisions of this Act,
all citizens shall have the right to information'.The Act has defined 2 terms -
information and authority – very widely.
'Information' means any matertial in any form including records, documents, memos,
e-mails, opinions, advices, press, releases, orders, circulars, contracts, reports, papers,
logbooks, samples, models, data material kept in any electric form and information
relating to any private body which can be adressed by a public authority under any
other law for the time being in force.
'Public Authority' has been defined as 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 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.
Until recently, disclosure of public records was banned under
"Official Secrets Act 1889" dating back to British rule. The RTI now allows Indians,
for a small fee, to access any official record of the federal or state governments, with
the exception of documents about the troubled Jammu and Kashmir state, and
individuals’ income tax and medical records. Under the provisions of the Act, any
citizen may request information from a ''public authority'' which is required to reply
within 30 days
The recognition of the right to information has grown exponentially over the
past two decades. In 1990, only thirteen countries had laws granting their citizens a
right to information held by public authorities, and the right had not been recognized
as a human right by any inter-governmental body. Instead, the right to freedom of
expression, codified in the leading human rights treaties, was interpreted to provide
only a right to seek, receive, or impart information free from government interference
or, at most, a right to receive government-held information that was necessary to
protect a fundamental right. At the national level, citizens might be able to obtain
certain information pursuant to administrative procedure codes and broad principles
of government accountability, but denials of requested information were generally
difficult to challenge.
Beginning in the early 1990s, states increasingly embraced an enforceable
right to information held by public authorities. By 2008, the constitutions of more
than fifty countries granted constitutional status to the right (either expressly or
implicitly, as interpreted by their top courts); and, at least eighty countries had
national-level right to information laws or regulations in force – including the
population giants of China and India, most countries in Europe and Central Asia,
more than half of the countries in Latin America, more than a dozen in Asia and the
Pacific, five countries in Africa, and two in the Middle East. By 2010, when
Indonesia’s law, adopted in 2008, enters into force, more than 4.5 billion people will
live in countries that include in their domestic law an enforceable right, at least in
theory, to obtain information from their governments.

INFORMATION COMMISSIONS

Under the RTI Act, the Central government has constituted a Central
Information Commission consisting of the Chief Information Commissioner and
Information Commissioners not exceeding 10 in number. These Information
Commissioners would be persons of eminence in public life having wide knowledge
and experience in law, science and technology, management, social service,
journalism, mass media, or administration and governance. The Commissioners are
appointed for a term of 5 years on the recommendation of a commitee consisting of
Prime Minister, Leader of Opposition in the Lok Sabha, and a Union Cabinet
Minister nominated by the Prime Minister.
The State Information Commission is constituted by the State Government,
consisting of the State chief Information Commissioner and other State Information
Commissioners not exceeding 10 in number. The State Chief Commisioner and other
Commisioners are appointed for a term of 5 years by the Governor on the
recommendation of a Committee consisting of the Chief Minister, Leader of the
Opposition in the Legislative Assembly, and a Cabinet minister nominated by the
Chief Minister.
Central Information Commission(CIC) has recently ordered publication of PDS
details.The information to be published includes:

(i)Entitlement of essential commodities for all type of Ration Cards.

(ii)Scale of issue of each essential commodity for all types of ration cards.

(iii)Retail price of each essential commodity for all types of ration cards.

(iv)Working hours of Fair Price Shops.

(v)Stock of essential items received during the month.

(vi)Opening and closing stock of essential commodities.

(vii)Name, designation and contact numbers of officials for redressal of grievances

with respect to quality and quantity of essential commodities.

(viii)Daily updating of stock position information.

(ix)Information about inspection of records by any citizen on every Saturday except

for second Saturday as per the PDS Control Order 15/06/06.

(x)Display of samples of food grains being supplied through Fair Price Shops.

POWERS AND FUNCTIONS OF INFORMATION COMMISSION

Subject to the provisions of this Act, it shall be the duty of the Central Information
Commission or State Information Commission, as the case may be, to receive and
inquire into a complaint from any person,—

(i)who has been unable to submit a request to a Central Public Information Officer or
State Public Information Officer, as the case may be, either by reason that no such
officer has been appointed under this Act, or because the Central Assistant Public
Information Officer or State Assistant Public Information Officer, as the case may be,
has refused to accept his or her application for information or appeal under this Act
for forwarding the same to the Central Public Information Officer or State Public
Information Officer or senior officer specified in sub-section (1) of section 19 or the
Central Information Commission or the State Information Commission, as the case
may be;

(ii)who has been refused access to any information requested under this Act;

(iii)who has not been given a response to a request for information or access to
information within the time limit specified under this Act;

(iv)who has been required to pay an amount of fee which he or she considers
unreasonable;

(v)who believes that he or she has been given incomplete, misleading or false
information under this Act; and

(vi)in respect of any other matter relating to requesting or obtaining access to records
under this Act.

Where the Central Information Commission or State Information Commission, as the

case may be, is satisfied that there are reasonable grounds to inquire into the matter, it
may initiate an inquiry in respect thereof.
The Central Information Commission or State Information Commission, as the case
may be, shall, while inquiring into any matter under this section, have the same
powers as are vested in a civil court while trying a suit under the Code of Civil
Procedure, 1908, in respect of the following matters, namely:—

(i)summoning and enforcing the attendance of persons and compel them to give oral
or written evidence on oath and to produce the documents or things;

(ii)requiring the discovery and inspection of documents;

(iii)receiving evidence on affidavit;

(iv)requisitioning any public record or copies thereof from any court or office;

(v)issuing summons for examination of witnesses or documents; and

(vi)any other matter which may be prescribed.

Notwithstanding anything inconsistent contained in any other Act of Parliament or

State Legislature, as the case may be, the Central Information Commission or the
State Information Commission, as the case may be, may, during the inquiry of any
complaint under this Act, examine any record to which this Act applies which is
under the control of the public authority, and no such record may be withheld from it
on any grounds.

REQUEST FOR OBTAINING INFORMATION

Every Public authority shall, within 100 days of the enactment of this Act, designate
as many officers as the Central/State Public Information Officers(PIO) in all
administrative units or offices under it as may be necessary to provide information to
persons requesting the information under thus Act. At the sub divisional level an
Assistant Public Information Officer(APIO) shall be designated to receive the
applicants for information or appeals under this Act for forwarding the same
forthwith to the Central/State Public Information Officer. Every PIO shall deal with
requests from persons seeking information and render reasonable assistance to the
person seeking such information. The PIO may seek the help of any other officer as
he/she considers it necessary for the proper discharge of his/her duties.
A person, who desires to obtain any information under this Act,
shall make a request in writing or through electronic means in English or Hindi or in
the official language of the area in which the application is being made,
accompanying such fee as may be prescribed, to the PIO or the APIO. Where such
request cannot be made in writing, the PIO shall render all reasonable assistance to
the person making the request orally to reduce the same in writing.An applicant shall
not be required to give any reason for requesting the information or any other
personal details except those that may be necessary for contacting him.
Where an application is made to a public authority requesting for an information,
(i)which is held by another public authority or
(ii) the subject matter of which is more closely connected with the functions of
public authority to which such application is made, shall transfer the
application or such part of it as may be appropriate to that other public
authority and inform the applicant immediately about such transfer: the
transfer shall be made as soon as practicable but in no case later than 5 days
from the date of receipt of the application.

DISPOSAL OF REQUEST

The PIO on receipt of a request shall, as expeditiously as possible, and in any case
within 30 days of the receipt of the request, either provide the information or reject
the request.Where an application for information or appeal is given to APIO , a
period of 5 days shall be added in computing the period for response where the
information sought for concerns the life or liberty of a person, the same shall be
provided within 48 hours of the receipt of the request.
If the PIO fails to give decision on the request of the
information within the period specified the PIO shall be deemed to have refused the
request.

DETAILS OF FEE

The applicant shall pay such fee as may be prescribed. The fee shall be reasonable
and no such fee shall be charged from the persons who are of Below Poverty
Line(BPO). The requester shall be provided the information free of charge where a
public authority fails to comply with the time limits specified.

GROUNDS FOR REJECTING REQUESTS

Where a request has been rejected, the PIO shall communicate to the requester-
(i) the reasons for such rejection
(ii) the period within which an appeal against such rejection may be preferred and
(iii) the particulars of the appellate authority.
An information shall ordinarily be provided in the form in which it is sought unless it
would disproportionately divert the resources of the public authority or would be
detrementalto the safety or preservation of the record in question.

THIRD PARTY INFORMATION

Where the PIO intends to disclose any information, which relates to or has been
supplied by a third party and has been treated as confidential by that third party, the
PIO shall, within five days from the receipt of the request, give a written notice to
such third party and invite the third party to make a submission in writing or orally,
and such submission shall be kept in view while taking a decision.
Except in the case of trade or commercial secrets protected by law, disclosure may be
allowed if the public interest in disclosure outweighs in importance any possible
harm or injury to the interests of such third party.The third party shall, within 10 days
from the date of receipt of such notice, be given the opportunity to make
representation against the proposed disclosure. The PIO shall, within 40 days after
receipt of the request, make a decision and give in writing the notice of his decision
to the third party.
The third party to whom the notice is given is entitled to prefer an appeal.

WHAT IS NOT OPEN TO DISCLOSURE?

The following is exempt from disclosure

(I)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;
(II)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;
(iii)information, the disclosure of which would cause a breach of privilege of
Parliament or the State Legislature;
(iv)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;
(v)information available to a person in his fiduciary relationship, unless the
competent authority is satisfied that the larger public interest warrants the disclosure
of such information;
(vi)information received in confidence from foreign Government;
(vii)information, the 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;
(viii)information which would impede the process of investigation or apprehension or
prosecution of offenders;
(ix)cabinet papers including records of deliberations of the Council of Ministers.
(x)information which relates to personal information the disclosure of which has no
relationship to any public activity or interest, or which would cause unwarranted
invasion of the privacy of the individual (but it is also provided that the information
which cannot be denied to the Parliament or a State Legislature shall not be denied by
this exemption);
(xi)Notwithstanding any of the exemptions listed above, a public authority may allow
access to information, if public interest in disclosure outweighs the harm to the
protected interests. (NB: This provision is qualified by the proviso to sub-section
11(1) of the Act which exempts disclosure of "trade or commercial secrets protected
by law" under this clause when read along with 8(1)(d)))

KILLINGS OF RTI ACTIVISTS

When the government passed the Right to Information Act (RTI) in 2005, it may well
have added a statutory warning: exercising this right may be extremely injurious to
health. Shashidhar Mishra of Begusarai, who was murdered last Sunday, is the second
RTI activist to be killed in a month for perhaps knowing too much. Attacks on RTI
activists have emerged as a disturbing trend of late, especially in light of the murder
of noted Pune RTI activist Satish Shetty, who was responsible for unearthing many
land scams in Maharashtra. Mr. Mishra, a local RTI activist who worked tirelessly to
expose corruption at the panchayat and block levels, was shot dead near his residence
in Phulwaria village on the night of February 14.
The RTI Act has been sailing in rough seas for some time now in Bihar, with the State
government’s decision to make certain changes in the legislation citing “procedural
inconveniences” drawing sharp criticism from activists and NGOs.
The present system of administering the RTI law includes one odd fact: a government
servant, who is unlikely to be penalised for non-performance of his primary duty, can
be held to account for non-compliance under this law, and even fined out of his own
pocket for this. This has led to a situation where government officials sometimes
place greater importance to RTI applications than to their primary duties, because
they do not want to be pulled up or penalised for failing to look into an RTI
application.

RTI IN JAMMU AND KASHMIR

On Sunday evening-almost 11 months since the J&K RTI Act 2009 was gazetted-the
people of J&K learned that ex-IAS officer Wajahat Habibullah would not be coming
to Jammu & Kashmir to become the State's first Chief Information Commissioner.
Wajahat is presently the first Chief Information Commissioner of India, and was
responsible for successfully establishing and safeguarding the Right to Information
Act in the Central government since his term began in October of 2005. Last October,
he submitted his resignation to the President. Days later, the Governorof the State
officially appointed him to be the J&K State Information Commission. Since that
time, we have been hoping that he would do the same for this state, particularly in
view of (1) his reputation, (2) his integrity and (3) his deep experience with both RTI
and Jammu & Kashmir. But the Central government has been unwilling to find his
replacement, and Prime Minister Manmohan privately advised him last week to
remain in Delhi at the Chief Information Commission [CIC] until his retirement at the
age of 65 in September.
Although Mr. Habibullah had some critics, it's also true that there wasn't a more
qualified or promising candidate for the job. But we criticize the Centre and Mr.
Habibullah for leaving RTI in J&K paralyzed for so many months--and to no avail.
To RTI activists, this development came as a shock . Now the future of RTI in J&K is
in chaos. The J&K Selection Committee must meet again, and decide upon the Chief
and the two additional Commissioners who comprise the 3-member Commission. At
the Centre, civil society activists and eminent citizens including Arvind Kejriwal,
Aruna Roy, Narayana Murthy, and Aamir Khan have called upon the Centre to (1)
frame a clear and transparent procedure for appointing the Information
Commissioners, and (2) to select strong, eminent citizens rather than picking babus
and other "blue-eyed boys." We repeat this call to the Government of J&K. We
already forwarded some recommended names, including current and former justices
of the J&K High Court who would be outstanding Chief Information Commissioners.
 CONCLUDING OBSERVATION

The RTI Act, prima facie, surely marks a major a major step toward openness and
transparency in governance. But there are many challenges that this Act has to face in
course of its implementation.
(i)The bureaucratic culture of 'secrecy' is not easy to change. Structurally,
procedurally and behaviuorly, bureaucracy in India has to culturally prepare itself to
accept 'openness' as a criterion of good governance.
(ii)The politician in India, often in league with the bureaucracy, has to accept that
democracy means people's rule' not politician's rule. It is no use blaming the
bureaucracy all the time; our politicians today have often been found lacking in 'big
visions'.
(iii)People in India, in many places, suffer from a variety of 'bondages'. The social
bondages- be it of caste, religion or anything- stand in the way of enjoyment of the
rights which are enshrined in the constitution or provuded in any statute. Thus, 'social
freedom' through education and popular movements is the key to real assertion of
popular right.
(iv)Often in the past it has so happened that a liberating and progressive legislation
(e.g. abolishing child marriage or sati, for instance) would be taking the lead in terms
of advance 'conscientisation' of the society. Such legislation will be actually
internalised by the society only when appropriate 'people preparedness' will be taking
place through liberating social movements. The example of MKSS in Rajasthan is a
case in point in this context. The success of RTI Act will ultimately depend on
people's understanding of its real worth in day-to-day living.
(v)Currently, the trend has been toward 'privatisation' and outsourcing of many
erstwhile government activities, shrinking, in the process, the 'spheres' of public
administration. Under the circumstances, the ambit of the RTI law might have to be
widened to bring within its purview many organisations working for the public
authorities in different garbs.
It has been argued that the 'open government' idea has often been broached in terms
of its prevailing concensus that looks at secrecy and democracy as the two sides of
the same coin. Governments would like to keepcertain things 'confidential' ; but
citizens demand information about how they are governed. Ultimately a sensible and
genuine democracy has to strike a balance somewhere and find out a golden mean
only then the purpose of RTI can be served.