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This article is written by Aman Singh pursuing Certificate Course in Advanced Civil Litigation from LawSikho.

Introduction

According to Thomas Jefferson “Information is the currency of democracy” and critical to the emergence and development of a vibrant civil society. An excerpt from the preamble of the Right to Information Act, 2005 explicitly provides 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”. Therefore, in a democratic setup, an informed citizenry is one of the essential facets. It is well accepted that information empowers people and it is also one of the natural rights.

The Right to Information (RTI) Act was passed by Parliament on 15 June 2005 and effectively came into force on 12 October 2005. Every day, over 4800 RTI applications are filed. In the first ten years of the commencement of the Act over 17,500,000 applications had been filed, as reported by Nidhi Sharma (Sharma, 2016). The RTI Act is a fundamental right for every Indian citizen as this Act was passed in order to consolidate the fundamental right to freedom of speech and expression as provided under Article 19(1)(a) of the Indian constitution. The RTI Act, 2005 is applicable to the whole of India and every state is having a controlling authority called “State Information Commission” which heads over all the state departments and ministries, for heading over the central departments and ministries another major body called “The Central Information Commission” is present.

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What is the purpose of the Right to Information Act, 2005?

Right to Information is a tool that is supposed to be utilized efficiently by the public to extract any information related to government offices. There was a growing need for transparency in the state-citizen relationship. Such transparency was achievable through a national RTI Act. But the main objective of this law-making exercise was to create a deliberative, consultative process that involved the participation of all the stakeholders through mutual acceptance of concerns and opinions. 

RTI Act 2005 was a successful quintessential result of yearlong struggle involving activism like Mazdoor Kisan Shakti Sangathan (MKSS), supreme court’s judgements (L.K. Koolwal vs State of Rajasthan and Ors, 1988), National campaign led by NCPRI founded solely dedicated to one objective of getting legislation on RTI passed (NCPRI, n.d.), International pressure like the involvement of external international civil society organizations like The Commonwealth Human Rights Initiative (CHRI) an independent, non-partisan, international non-governmental organization. 

As it is already provided in the preamble, the prime objective of the RTI Act is to provide all the citizens with the exclusive right to information in form of a fundamental right coupled with freedom of speech and expression provided in the constitution of India considering the importance of informed citizenry in the largest democracy and other composite reasons like curbing corruption and enhancing transparency and accountability of government towards the citizens who elect them.

Moreover, the other primary objectives of introducing and adopting the RTI Act were;

  • To empower the citizens
  • To encourage and enhance the active participation of people in the democratic process of the country

In addition,

  • To contain corruption, and
  • To promote transparency and accountability, as discussed above.

The RTI Act provides for a simple yet powerful tool to seek information from any public office for any reason which is not necessary to be declared in the application seeking information. This smooth and easy process of accessing information makes the last end-user of the society come forward and get himself/herself involved positively in the development and shaping of national politics proving the real essence of a democracy “that government of the people, by the people, for the people, shall not perish from the earth” as it has been defined by Abraham Lincoln. 

What are the criticisms that the Act has faced so far?

RTI Act was being criticized by the public and social activists on the fact that few provisions of the Act have been manipulated and moulded in such a manner to refrain from furnishing the information associated with the government offices explicitly to the information seeker and hiding the information behind the virtual layer of national security and the tag ‘not public authority’ under the ambit of RTI for an instance the PM CARES fund was declared as “not a public authority” and the information sought by an information seeker was rejected stating by Prime Minister’s Office(PMO) that PM CARES Fund does not come under the ambit of Section 2(h) of the RTI Act.

There are exclusions also for some information which will not be obliged to, as given in Section 8. It includes such information which can prejudice legal proceedings, police investigation and also those which expressly forbidden by any court of law or tribunal or the dispute of which constitute contempt of court, information the disclosure of which would endanger life, or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement of security purpose and also the Act exempts Cabinet papers.

  • The file notings controversy

In addition to that, one important component of RTI is file noting that brings core transparency in the bureaucracy. File noting is the noting of the government files which contains the process in which opinions are written down, discussed, and finalised or rejected. Most of the discussions on the subject are recorded in the note sheets and decisions are mostly based on the recording in the note sheets. These recordings are generally called ‘file noting”. File noting indicates the movement of the file, and who has access to it, which also includes the chronology of the decision-making process. The disclosure of file noting compels that the government is bound to keep close to the rules, and regulations of the business and the criteria set down in the decision-making. Meaning, file noting is the anatomy of governance or the medium through which the shortcoming of governance can be examined. 

The strong criticism pertained to the exclusion of file notings that are directly related to the development of the social and rural welfare from the purview of the RTI Act. Hence, this decision of keeping file notings out of the purview of the RTI Act attracted a lot of criticism and it landed us to the question ‘what does information mean?’ and after a long controversy, subsequently, the Indian government tried to amend the Act within a time of less than one year. This amendment of the Act was to exempt files-notings is making the Act purposeless.

However, this controversy of file noting was settled by a decision of the Central Information Commission (CIC) stating that file noting clearly falls within the purview of the definition of the terms ‘information’ and ‘record’. A press statement from the Prime Minister’s Office on 26 July 2006 did seek to clarify that “Government has remained committed to the principles of great transparency and accountability in the public decision-making process”. The press note also shed light on that the Union Cabinet’s approval on the amendment to Section 2(i)(a) of the Act that specifically provides that file noting of all plans, schemes and programmes of the government associated with the development and social issues shall be disclosed. 

  • Inadequacies of PIOs, APIOs and the commission

The flaws of the Right to Information Act can be seen vividly in the implementation of the Act itself. The public authorities generally do not display information about RTI on their departmental website in the proper way or on the notice boards of concerned departments. Moreover, there are no nameplates of Public Information Officers (PIO) and Assistant PIOs in their offices. The Act does not provide any such provision which can make the recognition of PIO and APIO clear and smooth in order to save the time of the information seeker. The Act provides for the public authority to publish the information suo motu prescribed under Section 4(1) through various means of communication, but not all public offices display the complete information. Most of the PIOs do not have any training to deal with RTI applications. At the district level PIOs refuse to give information if the information is not directly associated with their office rather than transferring the application to the relevant office under Section 6(3) of the RTI Act. 

This creates a delay in the process of the delivery of the answer to the application. It is mandatory for the commission to levy a penalty under Section 20 if the information is not provided within 30 days. The process of appealing two times and then approaching the commission in case of non-furnishing of information without any proper reason or not furnishing the information deliberately with unfair intentions takes too much time and goes completely in disregard to the very objective of the RTI Act.  In this context, because of such want of stringent enforcement of the Act, government officials do not have much fear.

Furthermore, the report card on the Performance of Information Commissions in India, released by Satark Nagrik Sangathan (SNS) and the Centre for Equity Studies (CES) highlighted some of the key reasons why the people’s rights to know was not being fulfilled. One of the major reasons was the piling up of appeals and complaints after the PIOs and APIOs refuses, hides, refrain from furnishing the information or does not follow the provisions of the Act, the study said “one of the primary reasons for the backlogs is the failure of central and state governments to take timely action to appoint information commissioners” to the Central Information Commission (CIC) and State Information Commissions (SICs). It said these “appointments are not made in a timely manner, resulting in a large number of vacancies.” endless vacancies of commissioners in the central and state information commissions, their reluctance to impose penalties on public information officers who refuse to divulge information, and the subsequent escalating the number of pending appeals and complaints, this have contributed to the Act falling short of achieving its objectives. 

  • Strings in the hands of state government and competent authorities

Section 27 and 28 of the Act empowers ‘state government” and “competent authorities” to make their own rules; this in many contexts counters the RTI Act.  This provision is excessively misused by many competent authorities, state governments and corrupt bureaucracies or officers. For example, many state and competent authorities have prescribed high application fees and photocopying fees instead of what has prescribed in the Act for instance the concerned authority replies with the high cost of photocopying to have access to the information which is again a form of denial of the poor. In addition to that, they keep the payment mode complicated and not crystal clear which is another attempt to get away with the duty to furnish information. For example, unavailability of knowledge about the form, fees, concerned nodal officer/PIO etcetera available in the local language. 

Therefore, the power granted to the states governments and competent authorities under Sections 27 and 28 to frame their own rules should be reviewed and must be made under the ambit of one uniform rule as the central government asserts. However, to address this the Hon’ble Supreme Court bench of justices AK Goel and UU Lalit while disposing off the batch of petitions filed in the year 2011 said in March 2018 said that, “public authorities cannot ask for more than Rs 5 for each page as photocopying charge, and an application need not mention the motive while filling out the form.” 

  • Governments lack responsibility in educating people about RTI

In addition to the above-mentioned drawbacks in the implementation of the Act, there are some other grounds on which the Act is criticized. As per the survey results published by “statista” on 16th October 2020, many Indian states are still having more than 40% of people unaware of their right to access information from government authorities.

The government does not emphasize making people aware and educating people about their right to access information which is an important right for a country like India. The Act also appears to strengthen the controlling role of the government official who retains extensive discretionary powers to withhold information. However, it is widely accepted by every citizen that restrictions on information relating to security, foreign policy, law enforcement, and public safety are to be kept out of disclosure to everyone.

  • The thin line between private and public information 

The Act came into effect in pursuit of the right to know but it seems to fall short while demarcating the right to privacy from the right to know. The RTI Act guaranteed only that information that comes wholly or partially under the public authority but some ‘private’ information that we need to know or some information that looks like private but is public information in its true nature. This private information is those that directly or indirectly affect the governance and ultimately influence the public at large. In India, almost many politicians and bureaucrats are linked with big businessmen in such a way that their relationship directly affects the governance, administration and public structure. 

Therefore, exempting them from the purview of the RTI Act is another loophole that needs to be fixed to achieve the ultimate objective of the RTI Act that is transparency and accountability in governance. The PM CARES fund is an apt example of how certain information can be made private although it contains public funds and public welfare as its purpose (Jebaraj, 2020). This moulding and manipulation of private-public information is a safe haven for corrupt bureaucrats and politicians to curtail all the illicit and corruption laden deals. Out of many, one example is that of Tata’s Radia tape case which does not come under the Act as it comes almost under private ownership but needs to know. So, the Act needs to be improved with a clear definition of ‘private’ and ‘public’. (Bureau, 2011)

What can be done to address the limitations of the RTI Act? 

So far we have discussed the grounds on which the RTI Act falls short and these grounds of limitations needs to be addressed and rectified to achieve the very objective of the RTI Act and to let the citizens enjoy the true essence of democracy by containing corruption, enjoy the accountability of government towards them and strictly monitor government’s role as a watchdog and help the country speed up toward its multidimensional development.

There are few suggestions that can be applied to make the RTI Act more feasible:

  1. There should be a uniform fee throughout the country for application and certified photocopies sought and no unnecessary documents should be added to make a hefty bill in order to intimidate the information seeker.
  2. The Act should be amended to limit the power of state government and other competent authorities to make changes and in addition to that, the amendment should be made instructing all departments to display name of PIOs, APIOs, Appealing Authority, Mode of fee payment etc. in the best way possible so that every person of the society can understand it without any difficulty. 
  3. The Commission should be enforcing the Act more strictly especially when it comes to not following deadlines by the PIOs. The deliberate delay and furnishing of irrelevant information must be dealt with strict penalties as it amounts to refusal of information thus implicitly infringing the fundamental right of the citizen.
  4. To bridge the long duration of time from the very first appeal to reaching the commission in case of deliberate refusal from the PIO side, only one appeal should be kept in the process rather than two appeals.
  5. Making that information public ultimately affects the public apart from very sensitive information which can prejudice national security.
  6. The disposal rate of complaints should be handled as the prime concern. Creation of more vacancies and the hiring of more officers to hear appeals and complaints at the Commission level should be done as directed by the Hon’ble Supreme Court. (Bhatnagar, 2020)
  7. As discussed above the large proportion of the unaware population, in this regard, regular awareness programs, nukkad nataks should be held to reach every end person of the democracy so that they can use their right at its fullest. 
  8. All information associated with RTI Act and its functioning must be made available in the local language considering the diverse nature of our country, India.
  9. Education about the right to information/ right to know should be made mandatory at the school level in our new education policy to develop a sense of responsibility and vigilant citizenship in the forthcoming generation.
  10. Use of technology in tracking, seeking, fee-paying (not everyone has digital banking services to resolve this photo of postal order signed and acknowledged by postmaster can be sent through the application as an attachment or through instant messenger applications like WhatsApp, telegram etc.) and delivering information should be appreciated to curb reluctant attitude of PIOs

Conclusion

Although, there are many loopholes within the Act and in the implementation of the Act itself as discussed above. However, the RTI Act is one of the most important weapons in the hands of citizens to fight corruption and wrongdoing of authorities to keep the spirit of democracy bright and alive. RTI is also one of the greatest achievements in the history of revolutions in Indian democracy. 

Even though there are several obstacles for poor and unaware people, still RTI plays an important role from getting a poor slum dweller his ration card through RTI to unearthing massive scams like 2G spectrum, Adarsh society scam, Commonwealth Games scam, Indian red cross society scam etc. (Moneycontrol, 2019) There are many successful cases and also many unsuccessful cases. The role of MKSS in the movement of the right to information that brought the scene of the present day is incredible. The Act needs proper review considering the current scenario and the parliament must take steps to fix the loopholes of the Act as observed and discussed thus far. Utilizing instant messengers and video conferencing platforms for hearing of complaints and appeals can bring instant positive changes by bringing down the backlogs and implementing digital solutions to make the information seeking-delivering process and RTI educating process smoother and effective are some of the suggestion which can be beneficial for public and commission mutually. 

References

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