Right to Information

Right to Information Act 2005 mandates timely response to citizen requests for government information. It is an initiative taken by Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions to provide a– RTI Portal Gateway to the citizens for quick search of information.

Right to information opens up government’s records to public scrutiny, thereby strengthening the four important pillars of Good Governance- Transparency, Accountability, Predictability and Participation.

Objective of the Right to Information Act:

• To provide for a practical framework that allows the citizens to access the information under the control of public authorities.
• To promote transparency and accountability in the working of governments and their instrumentalities.
• To provide for the constitution of Information Commissions at state and national level for discharging the functions and exercising the powers under the Act.
• To develop an informed citizenry.
• To contain corruption.
• To lay down the exemptions to disclosure of information when such disclosure is likely to conflict with other public interests and to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal.

Features of RTI Act:

• Section 2(h): Public authorities mean all authorities and bodies under the union government, state government or local bodies. The civil societies that are substantially funded, directly or indirectly, by the public funds also fall within the ambit of RTI.
• Section 4 1(b): Government has to maintain and proactively disclose information.
• Section 6: Prescribes a simple procedure for securing information.
• Section 7: Prescribes a time frame for providing information(s) by PIOs. The Right to Information Act provides, that a citizen should get information about life or Liberty cases in 48 hours while in other cases the information has to be given in a period of 30 days except in certain cases. Five days shall be added to the above response time, If the interest of the third party is involved then the time limit will be 40 days. In case of failure to provide information within the specified period is deemed refusal and the applicants can file an appeal with the appellate authorities.
• Section 8: Only minimum information exempted from disclosure.
• Section 8 (1) mentions exemptions against furnishing information under the RTI Act.
• Section 8 (2) provides for disclosure of information exempted under the Official Secrets Act, 1923 if the larger public interest is served.
• Section 12: Constitution of Central Information Commission

• Section 19: Two-tier mechanism for appeal. The appeal filed with the first appellate authority are to be disposed off in a time-bound manner within 30 days and not more than 45 days. Third party Appeal largest Central / State Public Information Officer must be filed within 30 days before first appeal authority and within 90 days of decision on first appeal.
• Section 20: Provides penalties in case of failure to provide information on time, incorrect, incomplete or misleading or distorted information. The commission can impose penalty of 250 Rs per day and maximum of 2500 Rs upon the central /State Information Officer in case of delay in giving information.

RTI (Amendment) Act 2019

Recent amendment in RTI has following challenges:

• The amendment has neglected the recommendation of the parliamentary standing committee that the Information Commissioner and CIC were to be made on par with the Election Commissioner and the CEC, respectively.
• Section 16 of the original Act deals with state-level Chief Information Commissioners and Information Commissioners. The proposed amendment allows the Central government to control through rules, the terms and conditions of appointment of Commissioners in the States. This is an assault on the idea of federalism.
• They violate the constitutional principles of federalism, undermine the independence of Information Commissions, and thereby significantly dilute the widely used framework for transparency in India.
• It was because of these reasons that MP Shashi Tharoor called this bill an “RTI elimination Bill” that removes the organisation’s independence.

Issues faced on the demand side:

• Low public awareness: Section 26 of the Act states that the appropriate Government may develop and organize educational programmes to advance the understanding of the public, especially disadvantaged communities, regarding how to exercise the rights contemplated under the Act. However, as per the survey it was revealed that only 15% of the respondents were aware of the RTI Act. It was further observed that awareness level is low among the disadvantaged communities such as women, OBC/SC/ST and Rural Population.

Issue Faced From Supply Side

Structural Issues:

• Question on CIC: In the matter of public importance like disclosure of covid related files, or phone tapping order, the CIC said it is better to ask ministry of these information. CIC refused to hear internet freedom foundation when home ministry refused to disclose the information on tapping order. Same with disclosure of non-performing asset and defaulter of cooperative bank.
• Inconvenient payment channels for submission of application fees.It was noted in the information provider survey, that majority of PIOs used cash and demand drafts, which causes inconvenience to citizens.
• Non-availability of User Guides for RTI implementation for information seekers: Under Section 26 of the RTI Act, the appropriate Government is expected to publish and distribute user guides (within eighteen months of enactment of the Act) for information seekers. However, it was highlighted in the information provider survey that Nodal Departments have not published these guides.
• Failure to provide information to the citizens: The Information Commission gets to know the failure of the Public Authority in providing the information within 30 days (or 48 hours or 35 days or 40 days as may be the case) once the appeal or complaint is filed. During the study by RTI Information survey, more than 50% of the information seekers mentioned that it took more than 30 days to receive the information from the PIO.
• Obsolete record management Guidelines: Ineffective record management system and collection of information from field offices leading to delay in processing of RTI applications.
• Lack of infrastructure: The Implementation of RTI requires the PIOs to provide information to the applicant through photocopies, soft copies etc. While these facilities are considered to be easily available at a district level, it is a challenge to get information from Block/ Panchayat level.
• Information commission is working with reduced strength. Ex:- Odisha is functioning with reduced commissioners while Jharkhand has no commissioners at all.
• Non-Imposition of Penalties on officers violating the law or not giving information on time.

Procedural Issue

RTI vs Legislations for Non-Disclosure of Information: Some provisions of Indian Evidence Act (Sections 123, 124, and 162) provide to hold the disclosure of documents. 

• Under these provisions, head of department may refuse to provide information on affairs of state and only swearing that it is a state secret will entitle not to disclose the information.
• In a similar manner no public officer shall be compelled to disclose communications made to him in official confidence.
• The Atomic Energy Act, 1912 provides that it shall be an offence to disclose information restricted by the Central Government.
• The Central Civil Services Act provides a government servant not to communicate or part with any official documents except in accordance with a general or special order of government.
• The Official Secrets Act, 1923 provides that any government official can mark a document as confidential so as to prevent its publication.

RTI vs OSA:

• The law, applicable to government servants and citizens, provides the framework for dealing with espionage, sedition, and other potential threats to the integrity of the nation. The law makes spying, sharing ‘secret’ information, unauthorised use of uniforms, withholding information, interference with the armed forces in prohibited/restricted areas, among others, punishable offences. If guilty, a person may get up to 14 years imprisonment, a fine or both.
• The information could be any reference to a place belonging to or occupied by the government, documents, photographs, sketches, maps, plans, models, official codes or passwords.
• The OSA does not define “secret” or “official secrets”. Public servants could deny any information terming it a “secret” when asked under the RTI Act.
• The Second ARC report stated that as the OSA’s background is the colonial climate of mistrust of people and the primacy of public officials in dealing with the citizens, it created a culture of secrecy. Confidentiality became the norm and disclosure the exception
• Another contentious issue with the law is that its Section 5, which deals with potential breaches of national security, is often misinterpreted. The Section makes it a punishable offence to share information that may help an enemy state. The Section comes in handy for booking journalists when they publicise information that may cause embarrassment to the government or the armed forces.
• Journalist Tarakant Dwivedi was booked for criminal trespass under the Official Secrets Act on May 17, 2011, after he wrote an article in Mid-Day about how sophisticated weapons bought after 26/11 were being stored in a room with a leaking roof at the Chhatrapati Shivaji Terminus in Mumbai. 
• Whenever there is a conflict between the two laws, the provisions of the RTI Act override those of the OSA.
• Section 22 of the RTI Act states that its provisions will have effect notwithstanding anything that is inconsistent with them in the OSA.
• Similarly, under Section 8(2) of the RTI Act, a public authority may allow access to information covered under the OSA, “if the public interest in disclosure outweighs the harm to the protected interest”.
• Second ARC suggested that the Act should be substituted by a chapter in the National Security Act that incorporates the necessary provisions. The reason it had become a contentious issue after the implementation of the Right to Information Act.
• The Shourie Committee recommended a comprehensive amendment of Section 5(1) to make the penal provisions of OSA applicable only to violations affecting national security.

RTI vs Right to Privacy

Conceptually, RTI and the right to privacy are both complementary as well as in conflict to each other.

While RTI increases access to information, the right to privacy protects it instead.

At the same time, they both function, as citizen rights safeguarding liberty, against state’s overreach.

When the question of harmonising the contradicting rights arises, it should give justice to the larger public interest advance the public morality.

Apex court in PUCL vs UOI held that RTI is greater than Right to Privacy.

RTI and Political Parties

Why activists want political parties to be brought under RTI?

• To contain corruption
• Huge donations from corporates which lead to favouritism or crony capitalism.
• Illegal foreign contribution
• The leader of the opposition is statutorily mandated to be part of the select committees to choose Chairperson for CIC, Lokpal, CBI Director and CVC
• Various members of the opposition are also part of various parliamentary committees.
• They enjoy multiple benefits like concessional office spaces, free airtime on DD & AIR from govt

Stand of Political Parties:

Political Parties are not public authorities, hence cannot be brought under RTI Act.

Disclosed information can be misused.

Can disclose financial information under the IT Act.

Suggestion for implementation of RTI:

• Section 12 of the Act may be amended to constitute the Selection Committee of CIC with the Prime Minister, Leader of the Opposition and the Chief Justice of India. Section 15 may be similarly amended to constitute the Selection Committee at the State level with the Chief Minister, Leader of the Opposition and the Chief Justice of the High Court.
• The GOI should ensure the constitution of SICs in all States within 3 months.
• The CIC should establish 4 regional offices of CIC with a Commissioner heading each. Similarly regional offices of SICs should be established in larger States.
• At least half of the members of the Information Commissions should be drawn from non-civil services background. Such a provision may be made in the Rules under the Act, by the Union Government, applicable to both CIC and SICs
• All Ministries/Departments/Agencies/Offices with more than one PIO have to designate a nodal Assistant Public Information Officer with the authority to receive requests for information on behalf of all PIOs. Such a provision should be incorporated in the Rules by appropriate governments.
• Public Records Offices should be established as an independent authority in GOI and all States within 6 months by integrating and restructuring the multiple agencies currently involved in record keeping. This Office will be a repository of technical and professional expertise in management of public records.
• State Governments may issue appropriate stamps in suitable denominations as a mode of payment of fees. Such stamps would be used for making applications before public authorities coming within the purview of State Governments.