RTI, the Act that empowered the Public to question Public Authorities

 Information

“A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives." – James Madison, 4^th US President.

In a rapidly evolving world, information holds immense power, acting as the cornerstone of progress in every aspect of life. Access to needed information empowers individuals to make informed decisions, drive innovation and overcome complex situations, making it a vital asset. Information is the catalyst for informed choices as it fosters critical thinking by allowing individuals for a deeper understanding of issues. Accessibility of information can enable individuals understand and accelerate the pace of development.

Communication

Communication is the lifeblood of any society, serving as the essential tool to connect individuals, build relationships and facilitate understanding. In an interconnected world, effective communication is more crucial than ever, enabling collaboration, problem-solving and the seamless exchange of ideas in community settings. Through clear and open communication, individuals can express their needs, concerns and perspectives, fostering trust and empathy. This is vital for the growth of the Society in all respects.

The difference between information and communication is that information is one-way, while communication is two-way. Information is storing but Communication is sharing. People need to be informed because “A well informed citizenry is the best defense against tyranny.”

Right to Information

There is one critical instrument to make Governments more responsive to citizens. That instrument is the “Right to Information” and this is significant towards good governance.

In 2002, Parliament enacted “Freedom of Information Act” (FOI) to promote transparency and accountability in administration, but that was repealed and replaced by “Right to Information Act, 2005” (Act No. 22 of 2005) w.e.f. 12^th October 2005.  The experience with the Act is almost two decades.

Basic objectives of RTI Act are (i) give effect to the fundamental right to information; (ii) enable the citizens to secure access to information held by public authorities (iii) establish voluntary and mandatory mechanisms or procedures for obtaining information (iv) promote transparency, accountability and effective governance of public authorities by containing corruption.

Act was enacted in order to consolidate the fundamental right to ‘freedom of speech’ which is implicit in the Right to Freedom of Speech and Expression, under Article 19 of the Indian Constitution.

Before this Central Act was passed in 2005, similar laws were already there in Tamil Nadu & Goa by 1997; Rajasthan & Karnataka in 2000; AP, Assam & Delhi in 2001; Orissa in 2002; Maharashtra & MP in 2003 and Jammu & Kashmir in 2004. 

Before India could legislate RTI in 2005, over 100 countries in the World have implemented ‘freedom of information’. Of which 81 countries are democratic in nature. Sweden’s Freedom of the Press Act of 1766 is the oldest in the World. 

The 3^rd session of the UN General Assembly adopted a resolution in 1948 declaring freedom of information as a fundamental human right, recognizing people’s right to have access to official information as part of article 19 of the International Covenant on Civil and Political Rights (ICCPR).

This covenant is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and the right to due process and a fair trial.

Article 19(1)(a) of the Indian Constitution too states that “All citizens have the right to freedom of speech and expression”.  

RTI movement in 3 phases:

In the first phase i.e. from 1975 to 1996 there were demands for information from landless wage workers, human rights activists and environmentalists. The landmark judgments of the Supreme Court in 1975, 1982 and 1989 and the Union Carbide gas leakage in 1985 gave strength for this demand for public information.

In 1990, the then Prime Minister of India, VP Singh declared the attitude of his Govt saying “An open system of governance is an essential pre-requisite for the fullest flowering of democracy.”

In 1994 & 1995, Mazdoor Kissaan Shakti Sanghatan (MKSS) held Jan Sunwayi (Public hearings) in Bhim Tehsil of Rajasthan about the developmental projects in Rajasthan, only on paper and misappropriation of funds.

In 1996, a draft bill was made by Justice PB Sawant, Chairman of the Press Council of India keeping in view the observations made by eminent people that in a democracy it is the people who are the masters and those utilizing public resources and exercising public power are their agents.

Between 1997 to 2005 in the second phase, as part of Globalization and International partnership, the lawyers, journalists, bureaucrats etc., joined the movement and “National Campaign for People’s Right to Information” (NCPRI) was formed.

At the national level, the Central Government appointed a working group under H.D. Shourie, a Bureaucrat and a Social Activist, in 1997 to draft the legislation. The Shourie draft became the basis for the “Freedom of Information Bill, 2000” which eventually became law as the “Freedom of Information Act, 2002”.

This Act, however, never came into force as it was severely criticized for permitting too many exemptions. The failure of the Freedom of Information Act, 2002 led to sustained pressure on Government for a better National RTI enactment.

The first draft of the Right to Information Bill was presented to Parliament on 22 Dec, 2004. More than a hundred amendments to the draft Bill were made before the bill was finally passed and it came into force w.e.f. 12th October 2005.

From 2005 it is reckoned as the third phase. The RTI Law is applicable to all constitutional authorities, including the executive, legislature and judiciary; any institution or body established or constituted by an act of Parliament or a state legislature.

After enactment of Central Act, all the States in the Country including those States that already had their own Information Laws have framed Rules in accordance with the Central Act.

The Regime

The Right to Information Act is “an Act 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”.

This Act mandates timely response to citizen requests for government information. It applies to all States and Union Territories of India w.e.f. 12^th October 2005 and also the State of Jammu and Kashmir w.e.f. 31^st October 2019.

The Act relaxes the “Official Secrets Act of 1889” as amended in 1923 and various other special laws that restricted information disclosure in India. In other words, the RTI Act explicitly overrides the Official Secrets Act and other laws, in force, as on 15th June 2005.

Important provisions of the Act

The RTI Act contains 31 Sections. Important among them are:

Section 2 which authorizes State Governments and Competent authorities to frame rules under the Act.

Section 3 confers the right to information on all the citizens of India.

Section 4 defines the obligations of public authorities to maintain records, publish and disseminate information to the seekers including proactive disclosure.

Section 5 mandates the Public Authorities to designate Information Officers in each office for providing information to the seekers.

Section 6 explains the mode of seeking the information and prohibits the public authorities from questioning the locus-standi or the intention of the information seeker.

Section 7 lays down specific time within which information to be provided and the fee to be collected.

Section 8 exempts certain information from disclosure.

Section 9 empowers Public Authority to reject a request for information.

Section 13 deals with the terms of office and conditions of service of Central information commission.

Section 16 deals with the term of office and conditions of service of the State information commission.

Section 24 enumerates the names of 26 Intelligence and Security organizations which are exempt from the purview of the RTI Act, but these organizations are not completely immune from it.  

The RTI Act specifies that any citizen of India may request information from a 'public authority' (a body of Government or 'instrumentality of State') which is required to reply expeditiously or within 30 days. If information is not provided within the time limit prescribed, it shall be provided free of charge.  If information is not provided within the time limit, it is treated as deemed refusal. Refusal with or without reasons may be a ground for appeal or complaint to the 1^st Appellate Authority.

The RTI Act specifies that citizens have a right to (i) request any information; (ii) take copies of documents; (iii) inspect documents, works and records; (iv) take certified samples of materials of work; and (v) obtain information in the form of printouts, diskettes, floppies, tapes, video cassettes or in any other digital or electronic mode.

Public Information Officers (PIOs) and Assistant Public Information Officers (APIOs) duly appointed by a public authority are under the obligation to provide information to the citizens, if the request is made.

Further, if the request pertains to another public authority (in whole or part) it is the PIO's responsibility to transfer or forward the concerned portions of the request to a PIO of the other authority within five days.  

In case of information concerning corruption and human rights violations by scheduled security agencies, the time limit is 45 days but with the prior approval of the Central Information Commission.

However, if the life or liberty of any person is involved, the PIO is expected to reply within 48 hours.

There is a fee for application and also a fee for information under the Act except for Below Poverty Level Card (BPL Card) holders. The fee can be paid by various modes.

The reply of the PIO is necessarily limited to either denying the request (in whole or part) and/or providing a computation of further fees. The time between the reply of the PIO and the time taken to deposit further fees for information is excluded from the time allowed.

The Officer who is the head of all the information under the Act is Chief Information Commissioner (CIC). At the end of each year, CIC is required to present a report which contains (a) the number of requests made to each public authority; (b) the number of decisions when applicants were not given permission to access to the documents which they request (c) the provisions of the Act under which these decisions were made and the number of times such provisions were filed (d) details of disciplinary action taken against any officer in respect of the administration of the Act and (e) the amount of charges collected by each public authority under the Act.

However, there are some exemptions to disclose the information to the citizens. They are: Considering that providing such information asked for under the Act may severely jeopardize national interest, some exemptions to disclosure are provided for in the Act.

The 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; information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature; information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party.

The Right to Information Rules 2012 framed under the Right to Information Act 2005 are 15 in number and they deal with application fee, fee for information, appointment of Secretary to Commission, appeals and their disposals etc.

Major Amendment:

The major amendment in RTI Act, 2005 was made in 2019, where the Government introduced Right to Information (Amendment) Bill, 2019 before Lok Sabha in which powers were given to the Centre to set the salaries (Sec 13) and service conditions (Sec 16 and Sec 27) of central and state information commissioners. It became Act and came into force w.e.f. 24^th Oct 2019.

Comments on the important provisions of the Act

 

	Section	Obligation	Criticism
1	Section 2	Authorises Appropriate Governments and Competent Authorities to make rules under the Act. (Appropriate Govt means State Govts & UTs. Competent Authority means Supreme Court & High Courts)	There is a debate in the media about the large number of variations, considerable mistakes and doubtful legal prepositions in the rules framed by them.
2	Section 4	Maintenance of records	Poor record keeping within the bureaucracy is resulting in missing of files.
3	Section 5	Public authorities to designate PIOs in each office	There is a lack of staffing to run RTI mechanism.
4	Section 6	Prohibits the public authorities from questioning the locus-standi.	Public authorities are asking for personal appearance and proof of residence.
5	Section 7	Specific time for provision of information and fee	Information is not supplied within specified time and fee is not uniform
6	Section 9	Authority to reject a request for information	Authorities reject for no reason for lack of knowledge on the Act
7	Section 13	The term of CIC and ICs at the centre is 5 years or (until age of 65 years whichever is earlier). The CIC will get allowances and salary same as CEC and other ICs will get will get salary and allowances as EC.	Appointment and the term of CIC and ICs shall be prescribed by the Central government or (until 65 years whichever is earlier). The salary, allowances and other services will be prescribed by the central Govt
8	Section 16	CIC & ICs at state level will hold office for 5 years or (65 years of age whichever is earlier). Salary & allowances for SCIC is the same as Election Commissioner and for other ICs same as Secretary of the state Govt.	Appoint for such term Shall be prescribed by the Central government or (until 65 years whichever is earlier). Salary, allowances and other services will be prescribed by the central government.

19 years’ experience:

Enabled citizen rights: The Act has become a weapon in the hands of common citizens to fight for their rights. Earlier, citizens had to struggle to get what was rightfully theirs. RTI has removed such bottlenecks.

Anti-corruption tool: It has been instrumental in uncovering 7 major scams. The success of the Act earned its 2^nd spot in 2011, 4^th place in 2017 and 9^th place in 2023 among 111 countries in the annual rating of similar empowering laws across the world. Scams like Adarsh Society Scam, 2g scam, Commonwealth Games Scam, Indian Red Cross Society Scam etc are some noticeable achievements under RTI.

Empowered people’s voice: It gave ordinary citizens the confidence and the right to ask questions of government authorities. It has empowered people in containing corruption and bringing transparency and accountability in the working of the Government. Lakhs of applications are being filed every year by citizens as well as the media.

Strengthened democracy: Every citizen has right to claim information from public authorities under the act. Public authorities have an obligation to provide the sought information to the applicants with certain restrictions related to national security, personal information and third party information. This strengthened democracy through active participation of public.

Features leading to transparency: A large amount of information has to be placed in the public domain by ways of manuals prescribed under the Act. All the Government departments along with a number of bodies which receive substantial funding from the Government have been brought under the RTI. This has ushered an era of transparency.

Issues and loopholes:

Increasing pendency of cases: These Commissions particularly the Central Information Commission, have kept a strong vigil over the functioning of administrative machinery relating to the implementation of the Act. However, their performance has often been restricted by increasing number of appeals. This has resulted in increase in pendency as well as increase in waiting time for hearing of appeals.

Definition of information: An important issue is the definition of information. Supreme Court 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 the public authority is not under obligation to provide that information.

Not all institutions under RTI: Another issue is that some institutions are not being covered under the Act. e.g. judiciary is not under the act.

Fine: Under section 20 (1) of the Act, the Information Commission can impose a penalty of Rs 250 per day, total not exceeding Rs 25,000 on PIO for denial of information without a valid reason. This is not a punishment, but a lenient one.

Lack of infrastructure: The Implementation of RTI requires the PIOs to provide information to the applicant through photocopies, soft copies etc. These facilities are not available at Panchayat level.

Low awareness level: Awareness about RTI is still very low. Awareness level is low especially among the disadvantaged communities such as women, rural population, OBC/SC/ST population. Only 3% of citizens of India know about this Act. 45% of applications alone receive information in response to RTI applications.

Constraints faced in filing applications: U/s 26 of the Act, the appropriate Govt is expected to publish and distribute user guides for information seekers. Nodal Departments are supposed to publish and update these guides from time to time. It is not happening in many states.

Information Commissions: Jharkhand, Telangana, Mizoram and Tripura do not have working Information Commissions. They are considered defunct because Information Commissioners were not appointed.

Pendency: As of June 30, 2023, over 3.2 lakh Right to Information (RTI) appeals and complaints were pending across 27 State Information Commissions in India.

According to the 2022-2023 report card by Satark Nagrik Sangathan (SNS), the worst performing states in India under the Right to Information (RTI) Act are Tamil Nadu and Maharashtra and the best are AP, Haryana, Jharkhand, Sikkim and Nagaland.

With this, we can understand whether the RTI regime is realising its objectives of ensuring transparency, accountability, containing corruption thereby achieving good governance or the purpose of enacting RTI Act is defeated.