RIGHT TO INFORMATION

RIGHT TO INFORMATION

Right to Information is considered as the 5th pillar of democracy. The Right to Information Act, 2005 was enacted to promote transparency and accountability in the working of public bodies and contain corruption to ensure good governance. Freedom of information is a fundamental human right and the touchstone for all freedoms to which the UN is consecrated – UNGA resolution 1946.

Objective of the Act

• Objective: 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.
• 3 shifts:
  • From culture of secrecy to transparency
  • From despotism to accountable government
  • From unilateral decision-making towards participatory governance

Salient Features of RTI Act

1. Applicable to government at all levels: Central, state and local (urban and rural) and bodies owned, controlled, or substantially financed by the government, including NGOs.
2. Suo moto declaration: Every public authority should provide possible suo moto information to the public at regular intervals. Disclosure is the norm, secrecy is the exception.
3. Rights and Obligations under the Act:

• Building Institutions:
  • Constitution of Central Information Commission and State Information Commission
  • Information officers and Appellate authorities
• Information and record keeping:
  • Suo motu declaration under Section 4.
  • Public Interest Disclosure.
  • Modernizing record-keeping.
  • Capacity building and awareness generation.
  • Creation of monitoring mechanism.

4. Three levels for attaining information: Public Information Officer followed by First Appellate authority followed by CIC (2nd Appellate Authority).
5. Fixed timelines to provide information:

• PIOs have to provide information within 30 days in normal cases, 48 hours if it is a matter of life or liberty of a person.
• First Appellate Authority within 30 days (45 days in exceptional cases – reasons to be given in writing) from the date of filing appeal.
• SIC/CIC – No time limit for disposal.

6. Information asked: Citizens can ask anything that the government can disclose to the Parliament.
7. Penalty: Imposition of penalty for refusal to provide information.
8. Official Secrets Act: Explicitly overridden by RTI and other laws to the extent of inconsistency.
9. Exemptions:

• Section 8(1) – National security, sovereignty, National eco interests, relation with foreign states, cabinet and other decision-making documents, trade secrets, personal privacy, law enforcement, and judicial process, etc.

10. Excludes: Does not extend to intelligence and security organizations like IB, RAW, BSF, CISF, NSG, etc. However, information pertaining to allegations of corruption or violation of Human Rights by these organizations will NOT be excluded.
11. Disclosure: All categories of exempted information to be disclosed after 20 years with certain exceptions.
12. Bar on jurisdiction of courts: Hence no court can entertain any suit, application, or other proceeding in respect of any order made under the Act.

RTI Success stories

1. Uncovering scams:
   • Adarsh Housing Society Scam, 2011: RTI activists unearthed the Adarsh Housing Society Scam which led to the resignation of the Chief Minister of Maharashtra. It was meant for the welfare of war widows and personnel of India’s Ministry of Defence. Over a period of several years, politicians, bureaucrats, and military officers allegedly conspired to bend several rules concerning land ownership, zoning, floor space index, and membership, getting themselves flats allotted.
   • 2G Scam, 2007: It revolved around the government auctioning the 2G spectrum. Top ministers had allegedly colluded to undercharge certain mobile phone companies while allocating the frequencies, in exchange for a bribe. This reportedly cost the exchequer a whopping Rs 1.76 lakh crore. The massive abuse of power came to light when an RTI was filed by activist Subhash Chandra Agrawal.
   • Commonwealth Games Scam, 2010: An RTI filed by a non-profit organization revealed that the Delhi government had diverted Rs 744 crore from funds earmarked for the welfare of the Dalit community to the Commonwealth Games.
   • Indian Red Cross Society Scam, 2016: The Indian Red Cross Society, a statutory body, was found misusing funds reserved for Kargil War relief and those displaced by natural disasters. It was learnt that IAS officers had squandered funds worth lakhs of rupees.
2. Demonetisation announced without RBI nod: Demonetisation was declared without formal RBI approval. RTI revealed that the RBI did not agree with the Centre on its justification that the move would curb the circulation of black money and counterfeit money.
3. 23,000 loan fraud cases in past 5 years: Replying to an RTI, the RBI had informed that 23,000 cases of fraud have been reported by various banks in the past five years, which involved Rs 1 lakh crore.
4. Right to Food in Karnataka: People in Rural Karnataka have combined the campaigns for the Right to Information and the Right to Food to fight hunger. Poor villagers have successfully Participated in social audits and public hearings to demand that the rations due to them are allotted to them at the correct prices.

1. Fair Price Shops, Gujarat: An 18-year-old student from Saldi Village used RTI to expose a ration shop that was not distributing food grains to ration card holders. His persistence led to mandatory stock disclosure by fair price shops in Gujarat.
2. Misuse of BPL cards, Chhattisgarh: RTI information revealed that some people were misusing BPL ration cards and taking away grains meant for the genuine beneficiaries.

Benefits of RTI

1. For Government
   • Efficient and effective: RTI has decreased corruption, empowering the public to access public documents, implying higher efficiency and effectiveness.
     • Example: RTI revealed that heads of local branches of the Indian Red Cross Society had used money intended for victims of the Kargil war to buy cars and pay hotel bills, etc.
   • Government-public relation: The Act also ensures the strengthening of government-public relations due to the increase in communication.
   • Easy mode of spreading information rightfully: This results in easy accessibility to information and encourages public scrutiny.
   • Increases transparency and accountability: It has reduced arbitrariness in administration and increased scrutiny (e.g., file notings have come under the RTI Act).
2. For citizens and society
   • Fulfilling individual aspirations: Enables participation in debates, discussions, and question-answer sessions regarding the decision-making process.
   • Citizen empowerment:
     • Ability to seek information: RTI empowers people to seek information and become part of governance.
     • Active participation: Transforms citizens from passive recipients to active participants in the development process.
     • ‘Subjects’ to ‘citizens’: Access to information and the ability to demand rights transform individuals from mere ‘subjects’ to ‘citizens.’
   • Better knowledge about government: Provides insight into government decisions and limitations of the country.
   • Citizen-centric approach: The enforcement of this Act ensures that authorities provide information as requested by citizens, compelling authorities to be more thoughtful before making decisions.
3. Others
   • Rights-based Demands: Led to demands for other equally important rights like the right to employment guarantee, the right to education, and the right to food security.
   • Necessary for other Human Rights: Right to access information supports all other human rights. For example, in Canada, a court recognized that the right to security includes the right to information about personal safety threats, which would be violated if the police failed to inform threatened individuals.
   • Participative democracy: Promotes an informed citizenry, strengthens social audits, and increases participation in policymaking.

Issues with RTI Act, 2005

1. Supply side issues

• Institutional

• Physical infrastructure: Concentrated in state capitals; non-availability of basic infrastructure such as photographer machines, basic level of automation.
• Technological infrastructure: Obsolete record management guidelines; lack of electronic document management systems in many departments; neglect of record-keeping; problem of providing bulk unprocessed information rather than relevant and intelligent summarization.

• Human Resource

• Scale: Inadequate infrastructure and staff at all levels.
• Skill: Low motivation; lack of awareness among PIOs — 80% PIO and Appellate Authorities do not know the basics of the RTI Act (Annual report of State Information Commission); inadequate training; demand-based supply rather than effectively ensuring voluntary disclosures by Public Authorities.
• Lack of security of tenure: The 2019 Act empowers the Central government to unilaterally decide tenure, salary, allowances, and other terms of service of Information Commissioners (both at the Centre and the States).
• Lack of diversity among ICs and CICs: Around 60% of ICs and 87% of the CICs have been former civil servants.

• Lack of accountability & autonomy

• Lack of Accountability: No provision to fix responsibility on any officer at the level of PA in case of non-compliance; incomplete, vague information provided.
• Appendage of government: The 2019 Amendment Act reduces the status, independence, and authority, which will now function as a department of the Central government.

2. Citizen side

• Effectiveness: Poor quality of information provided— not updated and obsolete; lack of important information on websites; lack of transparency in processes and lack of protection for whistleblowers.
• Threat to Life: More than 69 RTI activists have been killed — National Campaign for People’s RTI.
  • Example: Satyendra Dubey, Director of Planning at the National Highways department, was murdered for exposing corruption in the Golden Quadrilateral project in Gaya; Amit Jethwa, who had filed several petitions against illegal mining in Gir forest, was shot dead in 2010.
• Efficiency: High rejection, difficulty in filing RTI, delayed response, poor awareness (only 0.37% of people used RTI in the last 12 years).
• Exceptions and exemptions: Several categories and organizations are exempted from providing information.
• Huge number of frivolous complaints: A study by Commonwealth Human Rights Initiative highlighted 1.75 crore applications filed from 2005-14 with examples like “what is the speed of the internet at PMO?”
• Low public awareness: Only 15% of the respondents were aware of the RTI Act, and the awareness level is especially low among disadvantaged communities such as women, rural populations, and OBC/SC/ST categories [PWC].
• Constraints in application filing: Non-availability of user guides, standard application forms, unfriendly PIOs, etc.

3. Adjudicatory side: 

Lack of follow-up on orders; culture of secrecy; high pendency. A report by Satark Nagrik Sangathan and the Centre for Equity Studies pointed out that more than 2.2 lakh Right to Information cases are pending at the Central and State Information Commissions (ICs).

Important case laws

• State of UP v. Raj Narain (1975) — Right to freedom of speech and expression guaranteed by Article 19(1)(a) included the Right to know every public act.
• S.P Gupta v. UOI (1981) — Right to know is implicit in the right to free speech and expression and disclosure regarding the functioning of the government must be a rule.
• PUCL v. UOI — Right to information was further elevated to the status of Human Rights necessary for making governance transparent and accountable. Emphasized that governance must be made participatory.
• CPIO, Supreme Court v. Subhash Chandra Agrawal — The office of the Chief Justice of India will come under the ambit of the Right to Information Act as CJI does not hold information on the personal assets of judges in a fiduciary capacity.

Way Forward

1. Government/Administrative efforts
   • Creation of RTI Implementation cell: To ensure effective and efficient implementation of the RTI Act, 2005. RTI Cell should be well informed about the RTI Act as well as the functioning of the RTI Online Portal so thoroughly so as to be the master division for all other sections/divisions/public authorities for clearing any doubts related to RTI.
   • Annual self-assessment of nodal agencies: In order to ensure that issues are recognized and dealt with in a timely manner.
   • RTI call centre: To provide information as and when required by citizens.
   • Proactive declaration: Under section 4 of the RTI Act. For example, Jansuchna Portal, Rajasthan.
   • Replies on website: Putting all RTI replies on government websites. This will reduce repetitive information.
   • Penalty: Stricter fines and penalty provisions and its proper implementation.
   • Time limit: Provide a time domain within which CIC must act on appeals; for 2nd appeal, no time limit has been prescribed for its disposal.
   • Political parties under RTI: This will also be in accordance with the Supreme Court directive to the Election Commission.
   • Improving record management: Cataloguing, indexing, and orderly storage should be mandatory; all documents need to be converted into rational, intelligible, retrievable information modules.
   • ‘RTI readiness plan’ to be prepared for 3 years.
2. Recommendation by 2nd ARC – RTI: Master key in good governance
   • Legislative measures:
     • Repeal Official Secrets Act — There should be one national security act comprising OSA, RTI, etc.
     • Section 123 of the Evidence Act 1872 to be amended: Any person aggrieved by the decision of any Court subordinate to the High Court rejecting a claim for privilege made under section 123 of the Indian Evidence Act, 1872 shall have a right to appeal to the High Court against such decision.
     • Section 123: It prohibits giving of evidence derived from unpublished official records relating to affairs of State except with permission of Head of Department.
     • Oath of Transparency: Ministers on assumption of office may take an oath of transparency, and the oath of secrecy should be dispensed with Articles 75(4) and 164 (3). The Third Schedule should be suitably amended.
   • Physical Infrastructure
     • Single window system: To be set up at the district level to receive applications. It will create convenience for citizens.
     • Public Records Offices: To be set up at the Central and State level for website monitoring and auditing; observe proper record keeping; preparation and updating of manuals, modernization & digitization, etc.
     • Improving infrastructure: Government may allocate 1% of the funds of the Flagship Programs for 5 years for improving the infrastructure requirements.

• Human Resource
  • Training programme for all: With regard to how to provide information to the people.
  • Diversification of human resources: Draw at least 50% ICs from outside bureaucracy.
  • Amendment of Civil Service (Conduct) Rules: The spirit of these Rules is to hold back information. These Rules should be reframed to disseminate information as a rule and hold back information as an exception.
  • Selection Committee: 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.
  • Awareness campaigns at the state level: Guidance material should be available in local languages. The effectiveness of these programmes should be measured through independent sample surveys. Intensive use of All India Radio and Doordarshan. Independent members can be made.
• Use of e-governance: To provide timely and accurate information to citizens.

3. Awareness drives – targeting public as well as government bodies

RTI is a landmark legislation enacted after substantial struggle from grassroots levels. The RTI has unshackled millions of users who will continue to use this democratic right creatively and dismantle exclusive power. The RTI has been and will be used to withstand attacks on itself and strengthen the movement for transparency and accountability in India.

RIGHT TO INFORMATION (AMENDMENT) ACT, 2019

Key amendments of the Act include:

Rationale for the amendment:

• Stature of RTI Authorities: CIC has been given the status of a Supreme Court Judge, but his judgments can be challenged in the High Courts. Hence, the Amendment seeks to rationalize the position of Information Commissioners vis-à-vis the Supreme Court.
• Functional Parity: It is argued that the functions carried out by the Election Commission of India and Central and State Information Commissions are different. Also, the EC is a constitutional body.

Drawback of RTI Amendment Act, 2019

• Hampers Independence of RTI authorities: Amendment takes away the independence of CIC and IC as appointments, salaries, and tenures will be decided by the central government.
• Hampers Stature of RTI Authorities: By diminishing the status of the CIC, IC, and State CIC from that of a Supreme Court judge, it would reduce their ability to issue directives to senior government functionaries.
• No public discussion: The bill was brought in complete secrecy and without public consultations, impacting the fundamental right to information of citizens.
• Bypassed Examination: By standing committee. Also, the mandatory pre-legislative consultation policy of the government has been ignored.
• Giving central overarching power: Which can be misused for self-vested interests and to infuse political influence in RTI Authorities.
• Diluted RTI Act, 2005: According to critics, the amendment will deter dissent of RTI activists working as whistleblowers against the government in power.
• Threatens Federalism: As it empowers the Centre to unilaterally decide the tenure, salary, allowances, and other terms of service of Information Commissioners, both at the Centre and state levels.

POLITICAL PARTIES UNDER RTI

• In 2013, CIC had held that all notified national parties were Public Authorities for the purpose of the RTI Act. ECI also supported CIC’s position. However, even after 6 years, Political Parties have wilfully not complied with the order.
• In 2019, the Supreme Court issued a notice to the Central Government and ECI to declare political parties as public authorities under the RTI Act, 2005.

Arguments in favour of bringing political parties under RTI Act

1. Need to ensure transparency and accountability
   • Black money: 34% of the donations have been received with no address or any detail of the donor – ADR.
   • Crony capitalism: From FY 2004-05 to FY 2014-15, six national parties declared receiving 88% of their total donations in excess of Rs 20,000 crore from corporate or business houses. RTI will bring transparency and break this nexus.
   • Right of citizens: Citizens hold the right to question their political leaders on the sources and use of funds, manner of election, criminal background, etc.
   • To protect Parliamentary Democracy: Democracy and accountability are the core of our constitutional system; political parties should adhere to these principles as they are integral to parliamentary democracy.
   • Conduit of people’s interests: Political parties are the lifeblood and act as conduits through which the interests and issues of the people are represented in Parliament [LCI].
2. Political Parties are organs of the State: Political parties form the government, man the Parliament, and run the governance of the country [LCI].
3. Political Parties are Public Authorities: Political parties enjoy various benefits such as land for offices at concessional rates, allotment of free time on Doordarshan/AIR, and supplying electoral roll copies free of cost during elections. Hence, they come under the category of ‘Public authorities’ in the RTI Act.
4. Political Parties have constitutional recognition: They have constitutional recognition under Article 102(2), 191(2), and the 10th schedule as well as statutory recognition under section 29(A) of RPA, 1951.
5. International examples: Disclosure on a political party’s finances is available in the public domain of European and Central American countries. In most of the Scandinavian countries like Poland, political parties have been declared as public bodies.

Arguments against bringing political parties under RTI Act

1. Issues with demand for transparency:
   • Existing provisions: Transparency-related provisions for parties already exist under the Income Tax Act, 1961, and RPA 1951.
   • Obstruct party functioning: Disclosing internal functioning and financial info will hamper the smooth functioning of political parties.
   • Tool for misuse: The RTI Act can be misused by rivals with malicious intentions to harm the working and reputation of other parties.
   • Information in public domain: The Election Commission website provides information related to political parties.
   • RTI not visualized to encompass them: According to DoPT, political parties were not visualized to be brought within the ambit of RTI Law.
   • Political Parties are not public authorities: Mere registration of a political party is not equivalent to the establishment of a government body.
   • Not established constitutionally: Political parties are not established under the Constitution or any other law made by Parliament.
2. Other reasons:
   • Implementation issues: Lack of formal documentation, informal communications, etc., makes it difficult to implement the RTI Act on political parties.

Conclusion

Political Parties are an important part of democracy. Thus, transparency in their functioning shall be beneficial for the governance system of the country as a whole and will also promote intra-party democracy.

JUDICIARY UNDER RTI

Supreme Court v. Subhash Chandra Agrawal Case Judgement: The office of the Chief Justice of India will come under the ambit of the Right to Information Act as CJI does not hold information on the personal assets of judges in a fiduciary capacity. Thus, disclosure of details of serving judges’ personal assets was not a violation of their right to privacy and cannot be exempted from RTI.

• Doctrine of proportionality while releasing personal information: The right to know under RTI was not absolute and needed to be balanced with the right to privacy of individual judges. Thus, the Information Commissioner applied a test of proportionality, keeping in mind the right to privacy and independence of the judiciary.
• Information related to Collegium: Only names of judges recommended by the Collegium (output) can be disclosed, not the reasons (input). The information relating to collegium deliberations is treated as confidential third-party information.

Issues with application of RTI in judiciary

1. Adding exemptions via own rules: Section 28 of the Act gives power to the High Courts to formulate rules to further the provisions of the RTI Act. Under this section, 13 High Courts in the country have formulated rules that illegally increase the exemptions under the Act such as ‘information was not [to be] in the public domain’.
2. Making the process of filing applications inconvenient: Vidhi’s Report ‘Sunshine in the Courts: Ranking the High Courts on their Compliance with the RTI Act’ [2019].

• Increasing application fees: For example, the Allahabad High Court had been charging Rs 500 per application until the Supreme Court intervened and stated that High Courts should not charge more than Rs 50.
• Lack of online filing: Except for the Madhya Pradesh High Court, no other High Courts provide the option for citizens to file RTI applications online.
• Incomprehensible rules: For example, the text of Patna High Court Rules, which is available as a non-machine-readable scanned PDF on their website, is illegible. Additionally, almost no High Court, barring the Patna High Court, has published their complete rules in local languages.

3. Undermining by Supreme Court Rules: Unlike the RTI Act, Rules do not provide for a time frame for furnishing information, an appeal mechanism, or penalties for delays.
4. Issues with CPIO, Supreme Court v. Subhash Chandra Agrawal judgement

• Public interest: The right to know is balanced with the right of privacy of judges. However, the public interest is nowhere defined.
• Personal information: The application of the Doctrine of Proportionality may lead to refusal by invoking Section 8(1)(j) of the RTI Act.
• Collegium information: In SP Gupta v. President of India, documents consisting of the correspondence exchanged between the Law Minister or Judiciary in regard to appointment and non-appointment, etc., cannot be regarded as protected and entitled to immunity from disclosure.

While the Supreme Court agrees that sunlight is the best disinfectant, it is necessary that the Court itself leads the way and ensures that judicial institutions remove unnecessary hassles in providing information.

NGOs UNDER RTI

DAV College Trust and Management Society v. Director of Public Instruction (2019) – The Supreme Court held that NGOs which receive substantial finances from the government, whether directly or indirectly, fall under the category of ‘public authority’ defined under section 2(h) of RTI Act 2005.

• Includes: NGOs may include societies that are significantly funded by the government, directly or indirectly, and thus come under RTI.
• Substantial finances: This means a large portion and not necessarily a major portion or more than 50%. If the NGO/Society cannot carry out its activities effectively without support from the government, it will be termed as substantially financed. This includes free land given by the government or on discount to hospitals, educational institutions, etc.

Advantages of bringing NGOs under RTI/Refer NGOs Topic for more insights

• Transparency: It will promote transparency in the working and funding of NGOs and promote probity. For example, BCCI and its member associations receive substantial funds from the government and had so far refused to come under RTI despite being bogged down by widespread corruption, which will now come under RTI.
• Accountability: Only 2% of NGOs are registered, out of which more than 90% do not submit their balance sheets.

• Right of citizens: Government funding of NGOs comes from citizens’ money. Thus, they have the right to know how their money is being spent.
• Improvement in quality of services: May improve the quality of service being provided by NGOs, schools, colleges, hospitals, etc., as they will be more transparent and accountable.

Issues 

• Discourage setting up NGOs: It may be difficult for small NGOs to set up PIOs and fulfill other requirements, which will discourage the establishment of new NGOs.
• Diversion of focus: Inclusion of such requirements may divert the focus in the working of NGOs from their main aim.
• May curb dissent: RTI provisions may be misused to curb dissent by the government.

NGOs in recent years have faced several allegations, such as being anti-development, having a political agenda, promoting a corporate sector, and so on. NGOs coming under RTI will increase transparency and enhance people’s trust in them and their functioning.