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This article is written by Richa Goel of Banasthali Vidyapith. In this article, she has discussed the Right to Information Act, 2005, various important Sections and criticisms of the Act.

Introduction

India is considered as the largest democracy in the world. The basic feature of every democratic setup is transparency, openness and accountability. In India, public authorities or administrative authorities have a wide discretionary power, so feeling has been arisen in the mind of legislators as well public that this may lead to misuse of power which will ultimately result in maladministration and corruption.

For this purpose there should be a right vested in the common people of the country to access the information regarding the conduct or act discharged by public officials, so the system of check and balance can be maintained. Therefore, Right to Information has emerged. Right to Information implies that the public can participate in governance by accessing the information held by administrative or public authorities regarding the function discharged by them for the public welfare.

It is not only a statutory right but also a fundamental right of a citizen to know the information related to the public act performed by public authorities. It is fundamental for good governance and makes governmental authorities more transparent and accountable towards the common people of a country. There is a proximate relation between Right to information and  Administrative law as Administrative law can be defined as “branch of public law deals with the operation performed by administrative authorities”, and Right to Information empowers the public to access information held by public authorities.

Need

Right to information is the need of the current scenario because it assists to maintain transparency and accountability in government work. It helps to create a situation where the general public can get details of government action, plans, Yojana, schemes, etc., which aids to enhance the responsiveness of government towards society.

Right to Information Act in India took around 80 years to transform a grimy system of authority, valid by the “colonial officials secrets act”, where people can demand the “right to information”. India having a feeling of self-esteem in being the largest democracy, but with the passing of the recent enactment of the “Right to Information Act, 2005”. India has also become a strong democracy. The remarkable shift for Indian democracy, for the more access to the information by the citizen. Its “main focus on transparency and accountability in relation to the public authorities has been basically financed by the government”. Right to information has constitutional status, also it is enforced from Article 19 (1)(a) which talks about “fundamental rights of freedom of speech and expression”.

This Act is very necessary for each and everyone due to this our government officials and public institutions gathered information and work upon them. It embedded the right of every citizen of India to have access or control of the information related to finance to any authority by the state, thereby responsibility arises on the authority to use the information effectively without including into any corrupt activities. “In one of the cases, the Supreme Court of India ruled that every person has a right to know about expenses and assets against candidates for election, because these candidates offer the public services with their own desire so that they cannot demand exemption from any of the details related to assets or any charges against them.”  According to the above case, not only candidates but a political parties, worship places, education centres, but even  private schools and public companies fall under this Act.

The Mazdoor Kisan Shakti Sangathen (MKKS) was founded by social activists Aruna Roy and Nikhil Day in the year 1990 in the state of Rajasthen. This organization plays a very important role in the struggle of right to information. With the efforts of activists and international agencies, a large number of states enforced RTI Acts. They were Tamil Nadu (1996), Goa (1997), Madhya Pradesh (1998), Maharashtra (2000), Rajasthen (2000), Karnataka (2000 ), Delhi(2001), Assam (2002), and Jammu Kashmir(2003).

Features of Right to Information Act, 2005

  • Public authorities have a duty to provide any information which is claimed by a citizen.
  • Public authorities are under the obligation that they need to circulate the information to the person who demands the information. However, this Act comes with certain obligations relating to the security of the nation, personal information & other person’s information.
  • There is a time limit on the authority to give information within 30 days.
  • If the authority denies providing any kind of information then the person has the power to go to the appellate authority.  Later they can also go for the second appeal which falls under the “central information commission/state information commission”.
  • Local court commands cannot be entertained in these scenarios.

There are 25 organizations which are exempted from the right to information under the “second schedule” of this Act. These include Central Economic Intelligence Bureau, Intelligence Agencies, etc., certain bodies which basically perform the research work with regard to the country’s security, special service bureau, narcotics control board, but  RTI Act is not applicable to “Dadra and Nagar Haveli & Lakshadweep”.  This Act has done marvellous work because it gives the path to access information which earlier remained secret. This Act impacted the system and the people both tangible and intangible. People use this activity as a tool to get their documents and avail services like “passport, death certificate, pension, birth, ration card and income tax return”.

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Many people who are incapable, poor or physically disabled get benefits from this Act. RTI Act works with “administration in which there is more transparency with regard to the functioning of public bodies” due to which they maintain all records which are categories as the indexed. If transparency is removed or abolished from this Act then the chances of corruption practices increase and the delaying of work would become slower due to which lower investment means misuse of power, authority and the funds used for private purposes.

RTI helps the administration to take proper action and adopt a policy which helps the government to reduce corruption and work effectively. It also involves the selection of appropriate programmers to achieve government objectives. The largest indicator of “RTI Act” has slowly lowered the level of corruption in India.  

Chapter 1 of this Act deals with the definition that is covered under this Act e.g. definition of “information”, “competent authority”, “state public information officer”, “Right to Information”, “public authority”, etc. Chapter 2 deals with the obligation of public bodies against the maintenance of books and records in their interest areas of work and the different procedures related to the application of information.

Section 8 is defined as “exemption from disclosure of information”. Sub-Section (1) states that Notwithstanding anything contained in this Act, there shall be no obligation to any citizen.

  • Disclosure of the information would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign States or lead to incitement of an offence.
  • 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, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information.
  • The 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.
  • Information received in confidence from a foreign government.
  • 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.
  • The information which would impede the process of investigation or apprehension or prosecution of offenders.
  • Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of the Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the 14 decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this Section shall not be disclosed.
  • 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 unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied.

The above Section talks about the exemption in which public organization cannot disclose their information because that likely to threaten for the society and the parliament or not mandate to disclose. Only with permission, it can be disclosed.

Complaint

The Act also said that any person may file a written request to an officer (PIO) which is appointed by the authority which is covered by this Act. It is the obligation to entertain the request made by citizens. If the officer is not present then the applicant has the option to file a request in front of state or “central information commission”.  It also provides a time limit so that the process can be done speedily. Different time limits are prescribed for different situations:

  • When an application is entertained by any PIO then they have an obligation to reply to the application within a time limit of 30 days and any application which is presented before assistant PIO must be replied to within 35 days.
  • The application transfers to another PIO in 30 days which starts or counts from the day on which its application is transferred.
  • Any application presented in relation to information regarding corruption by any schedule secured agency or any kind of violation of human rights which are covered under schedule II of RTI Act then reply must be given within 45 days with the permission of the central information commission.
  • PIO is required to give information which includes “right to life and liberty” of the person.

Any person can file an application on any matter which is related to RTI simply by making an account and pay a nominal amount for the filling of application. Right to information is not only a statutory right which emerged from Right To Information Act, 2005 but it is preexisted and considered as a fundamental right enshrined in Part III of the Constitution. Although it is not expressly mentioned anywhere in the Indian constitution but falls within the purview of “Freedom of Speech and Expression” and “Right to life and Personal Liberty”. Through Interpretation of the Supreme Court in various landmark Judgments, we can infer that Right To Information is Fundamental Right.

In the case of Bennett Coleman vs. Union of India[1], the Apex Court stated that “Right to information is our fundamental right falls within the purview of article 19(1)(a) of the Constitution of India”. In Express Newspaper Ltd VS. Union of India[2], the court observed that the foremost purpose of the right to freedom of speech and expression is that people should be able to form an opinion and freely communicate it to others.

In the case of SP Gupta vs. Union of India[3], the court observed that “It is a right of the public to get information regarding public functions performed by the public authorities and authorize public to access the information related to public transactions performed within the scope of the public act”. In RP Ltd. vs. Indian Express Newspaper[4], the court held that “Right to information is a basic right and falls within the purview of Article 21 i.e. right to life and personal liberty”.

In the case of People Union for Civil Liberties vs. Union of India[5], the Apex Court analyzed right to information in the light of human rights which is requisite for making administration and governance accountable and more transparent. Therefore from the above observation of the Supreme Court, we can say that Right to Information is our fundamental right.

There is a famous saying that ‘power corrupts and absolute power corrupts absolutely’. So, no right can be absolute in nature. Every right is subject to certain reasonable restrictions. Hence Right to information is also subject to reasonable restrictions given under Article 19(2) of the Indian Constitution. Certain exemptions from disclosure also given Under Right To Information Act, 2005 which are as follows:

  • The information which tends to prejudice the international relations, integrity and national security of the country;
  •  The information which is expressly forbidden from disclosure by tribunals and court.
  •  The information which related personal details and not in the interest of the public, and if there is access to information it may violate the right to privacy.
  • Information related to trade secrets, commercially confidential information and intellectual property.
  • Confidential information received from foreign government etc.

There is another issue also arise while exercising Right to Information that it may lead to invasion in right to privacy because both these rights are in conflict or position. On one side Right to Information empowers the citizen to access the information held by public authorities, on the other it restricts the access of personal information, therefore a balancing view can be adopted  that Right to information cannot be exercised with regard to personal information until and unless it is important for public interest.

In India, the Democratic form of government has established which means that the government has to work according to the “will of the people’. The main focus of the government is to transform people’s will into their actions and take responsibility for it. This democratic system only works properly when people become more aware, alert, and conscious and get information about political agendas, policies, schemes, plans, Yojana, which is introduced by the government. Right to Information Act, 2005 trying to facilitate the general; public to access the information regarding government plans. Act provide modus operandi to acquire information and data related by the public office to affected parties, NGO, co-operation and the general public with the intention of social welfare.

What does it do?

Right to Information Act, 2005 promotes harmonious construction between people and the government of people. Earlier, where situation arose public officer became superior-oriented rather then service-oriented because there were no checks upon them regarding their services. But the RTI Act, provide a straitjacket solution to make public officer again service oriented. Now under RTI Act, people have right to get details of public authorities so, it creates a fear of exposing upon the mind of the public servant, which is changing the attitude of public officers towards their duties and responsibilities.

Role of Right to Information Act,2005 for Good Governance because RTI Act helps to improvement in accountability, the performance of government. The act facilitates a mechanism to access upon information by the public from public office. Any kind of administrative action or quasi-judicial judgment taken by any public authorities so, minute details are required to maintain. The general public or affected parties can collect that information from public office and time. Act also appreciates the participation of citizens in the decision making process. NGO, co-operation, institution or general people have right to get information regarding various yojana, plans, schemes, allocation of resources and funds by the government in a rural and urban area. With the help of those data NGO and social welfare, the institution gets an idea about the problem in the society and their solutions too. Act provides aids to reduce corruption in public offices, now the public officer is not utilizing the fund for their private use, and not abuse their public power.

Critical Appraisal of Right To Information Act

The RTI Act makes the right to information as a tool to check upon the misuse of the discretionary power of administrative authorities but it suffers from several drawbacks which weaken the position of the right to information. The drawbacks are as follows:

Section 2(h) defines the term ‘public authority’ but it does not give a comprehensive and exclusive definition of public authorities which might create confusion. The term ‘Public Authorities’ includes Non-government organization which are funded by the government either directly or indirectly but there are some NGOs which are funded by the public then the question has been arising that whether these NGOs falls within the category of public authorities or not. Temples appeared not as public authorities because they are funded by trusts but in many cases, the Supreme Court considered temple as public authorities. So, here also there is no clear picture in the Act whether the temples considered as public authorities or not.

Another loophole in this Act is absence of contempt provisions, this stated that the information commission shall be binding but the provision of ‘contempt of court’ is absent due to which it cannot force or compliance to the public to follow the rules. the absence of ‘contempt of court’ make the non-compliance of the order passed by the information commission .there must be provision insert in this Act.

And there is no penalty upon appellate authority, the applicant should receive the information requested in the RTI application within 30 days of receiving such application and within forty-eight hours in case of life and liberty as per Section 7(1) of the act. But if that limit exceeds or in no limitation time period this work not done then there is no proviso or concept introduced. It is necessary because it makes the whole process lazy and wasting without any penalty.

It provides that serviceman also become Central Public Information Officer [CPIO] even if they don’t have any knowledge about the Act and work still they appointed as the additional duty. As the dealing with the RTI application is necessary and the relevant information is required and dealing with the applicant is very crucial and important but the qualification of CPIO is not given and not mention anything about the qualification. And training should be provided to the fresher persons and the appellate authority and review them from time to time about the amendment test along with the training should also be conducted so they can get the information and knowledge.

There are various other loopholes in the Right to Information Act, 2005 which create hurdle in better administration and to fulfil the objectives of this Act. RTI Act, 2005 which ensure that information must be delivered to the public within 30 days of application and if the public officer fails to provide information within prescribed time so, the penalty will impose upon officers.  It is not practically possible that in each case, that all the information is collected accurately within time, to the applicant. There are various factors which cause delay to deliver information like elections, holidays, emergency, disaster management, and old data from different branches which talk a long time to recover etc.

The information which is providing to the applicant can be any for either soft copy or hard copy. It is also not necessary that each public information office which is situated in hilly, rural and village area have the proper facility of fax, telephone, electricity, internet facility. Lack of infrastructure and facilities may also delay in delivery of information to the applicant. Now, a day’s people started misusing the information which is collected from the Public information office. The primary objective is to provide information for public welfare. But, in today’s era, the aim of the act is defeated and it is becoming the tool of the person with the malicious intention to harass their co-operation and blackmail their colleagues etc.

There are many provisions in RTI Act, which impose obligations, duties responsibilities as well as a penalty upon public officer but no provision for the appreciation for their hard works, which create a situation of de-motivation in the mind of public employees. Act also not provides any kind of protection to the whistleblower. Basically, Whistleblowers get information with the help of right conferred under the RTI Act, from public information office and give the report to Civil Vigilance Commission (CVC) about corruption, illegal works, malpractices etc. Whistleblower Protection Act is introduced by the government in 2014 but that Act has many loopholes and no proper protection provided to a whistleblower in RTI Act which makes the worst condition for a man who raises their voice against injustice. Poipynhun Majaw murder case (2018), Nanjibhai Sondarva murder case (2018), Bhupendra Vira murder case (2016), Nandi Singh murder case (2012) etc. are the example of whistleblower murder cases.

Conclusion

Right to information is a weapon in the hands of citizens of the country to know the functions performed by public authorities, the purpose of the public transaction said to done in the name of the public act and the source of finance to discharge such functions. Right to information exists before the enactment of Right to Information Act,2005 because it is considered as one of the fundamental rights within the purview of Article 19(1)(a). This right promote transparency, accountability in function discharge by public authorities. Although Right to information is considered as advancement in India it suffers from several drawbacks which need to be revised and improved.

References

  1. 1973 SCR (2) 757
  2. On 8 January 1958
  3. 1982 2 SCR 365
  4. 1988 SCR Supl. (3) 212
  5. 13 March 2003

 

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