This article is written by Shweta Singh, pursuing a Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho.com.

Abstract

India being a welfare state requires extensive use of power by the state for ensuring the well-being of its people. Such extensive use of executive and administrative power, being discretionary in nature is likely to be abused by the hands of such authorities. In order to prevent this mis-use or abuse of power and in order to provide accountability and transparency in governance, the Right to Information Act, 2005 was passed and brought into force with effect from December 22, 2005. The RTI Act provides a medium for government-citizen participation to promote the objective of the welfare of the people. However despite its enactment, its proper implementation has been one of the major concerns. The Government agencies have not yet been able to implement section 4 of the Act which aimed at providing necessary information on websites, in its full capacity. Amendments have been brought by the government which has further hindered the progress of the act and to put into practice. Most of the people are not aware of how to exercise their right to know under this act and those who know do not know how to use it.

Right to Information- Indian Constitution

The basic idea behind the formation of Indian Constitution is to establish India as a sovereign, secular, republic and democratic country which requires an informed citizenry and transparency of information which are essential for its functioning and also for preventing corruption by holding the government and their agency accountable for their actions to the people. However, there is certain information which in actual practice is likely to conflict with public interest. In other words if all the information relating to government’s functioning is open for disclosure it will affect the efficiency of the government, for example, in the use of limited fiscal resources and also because of the wide range of government’s functioning confidentiality of certain information becomes necessary. Thus it is of foremost importance to harmonise these conflicting interests of people’s right to know and the larger interest of the public in disclosing certain sensitive information while preserving the democratic ideals. The Right to Information law in India is based on these ideal principles enshrined in the Constitution^[1].

The right to information is not expressly mentioned in the Indian Constitution but it has been considered as the essential part of  the right to freedom of speech and expression provided under Article 19 (1) (a) of the Indian Constitution through the expansive interpretation of the various fundamental rights by the Supreme Court of India. In Indian Express Newspaper (Bombay) Pvt. Ltd. v. Union of India^[2] The court has upheld the people’s right to know every public act and transaction done by the public functionaries in all bearings.

In S.P Gupta v. Union of India,^[3]The Supreme Court observed the growing demand for openness in Government’s function in different parts of the world and asserted that the citizen’s right to know is the essential pillar of the democratic state.

Fundamental rights being the basic right for the human’s existence regards the right to know as one of the fundamental rights under Article 19 (a) of the Indian Constitution. Apart from Article 19 (a) of the constitution there are other Articles in the constitution as well which gives more validation to the person’s right to know or to be informed. They are Article 22 (1), Article 22 (5), Article 311 (2).

Article 22 (1) of the constitution provides that the person arrested or detained shall be informed of the grounds for such arrest and also about his right to consult and to be represented by an advocate of his choice.

Article 22 (5) mandates that whenever a person is detained under the law providing for preventive detention, such person so arrested shall be informed, as soon as possible of the ground of his arrest and also about his right of challenging such arrest by the authority executing such order of arrest.

Article 331 (2) of the constitution makes it mandatory that no civil servant shall be dismissed, removed or reduced in rank except after conducting an inquiry in which he should also be informed about the charges he is accused of and he should be given a reasonable opportunity of being heard in respect of those charges.

Right to information has been considered as the part of natural justice which requires that no person shall be condemned unheard. Unless and until the person is informed about the charges or allegation against him he will not be provided with the fair opportunity to defend himself^[4]or rebut those charges. The right to be informed like any other right can only be restricted on the grounds of reasonable restriction as provided under Article 19.^[5]

From the reading of the articles mentioned above it is clear that the people’s right to know though not expressly mentioned under the Indian Constitution can clearly be seen as embedded to be the essential fundamental right, which is applicable against all such persons that drives authority from the Government. 

Theoretical application

Now that we have understood the importance that Right to Information have in creating informed citizenry and how it helps in realizing the true spirit of democracy by allowing people’s participation in the governance of the nation and by holding governments accountable for their acts we would now see how such Right to Information can actually be availed and made effected as provided under the Right to Information Act, 2005.

Objectives of the Right to Information Act, 2005

The right to information act which has been passed by the parliament consist of 31 sections spreading over six chapters and two schedules. The objectives for the attainment of which the Act was enacted are as follows-

1. To enable the citizen to get access to information which is under the control of the government and its authorities.
2. To promote accountability and transparency in the administrative functioning of the government and public bodies and thereby curbing corruption.
3. To establish a central information commission and a state Information commission for the proper implementation and monitoring of the Act and Rules made there under.
4. To impose a paramount duty on the public authorities to make available to the public as much information as possible.
5. To penalize and punish the Public Information Officer (IPO) for not fulfilling his duty as prescribed under this Act.

Thus the main purpose behind the enactment of the RTI Act is to mandate the public authority to provide each and every information to the public relating to the functioning of the government which helps in bringing transparency and make citizens more informed. ^[6]

Definition of Right to Information

As defined under section 2 (j) of the RTI Act, Right to Information means the right to access information as per the provisions of this Act, which is held by or under the control of any public authority and includes the right to;

• inspection of the work, documents, records;
• taking notes, extracts or certified copies of documents or records;
• taking certified sample of material;
• obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or any device. ^[7]

Section 3 of the Act gives right to information to every citizen.

Authorities under the Act

The authorities from whom information can be accessed by the public is also defined under the RTI Act. The Act is applicable in relation to both Central and State Governments and all public authorities under them. A public authority defined under Section 2(h),  is bound to furnish information and includes any authority or body or institution of self-government established or constituted;

 (a) By or under the Constitution,

 (b) By any other law made by Parliament,

 (c) By any other law made by State Legislature,

 (d) By a notification issued or order made by the appropriate Government and includes any;

 (i) Body owned, controlled or substantially financed,

 (ii) Non-Government organization substantially financed – which, in clauses (a) to (d) are all, directly or indirectly funded by the appropriate Government.

Under Section 5 of the Act, it is mandatory to designate, within 100 days of the enactment of this Act, Central Public Information Officer or State Public Information Officer as the case may be in all of its administrative units and offices under it for the purpose of providing information to persons requesting for the same. The Section also provides for the public authority to designate at each sub-divisional level or other sub-divisional level, Central Assistant Public Information Officer and State Assistant Public Information Officer, as the case be for the purpose of receiving application for information or appeals and forwarding the same Central Public Information Officer or to the State Public Information Officer or to the Senior Officer specified under Section 9 (1) or the Central Information Commissioner or the State Information Commissioner, as the case may be.

Information that can be disclosed under the Act

The information that can be disclosed under the RTI Act can be divided into two categories:

• Information that is to be disclosed upon request.
• Information that is required to be disclosed to the public without any request.

• Information that can be disclosed upon request

Under this category Information can be accessed by requesting for the same from the Public Information Officer by following the procedures provided under the Act. The information as defined under Section 2 (f) has to be disclosed by the Public .Information Officer when requested by any individual. In order to understand what all Information can be disclosed under the RTI Act it is essential to first understand what the term Information means as per the provisions of the RTI Act.

• What is information under RTI Act

To be able to understand what Information can be disclosed under the RTI Act it becomes essential to first understand what the term Information means as per the provisions of the RTI Act.

Section 2(f) defines the term “information” which means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and also include information relating to any private body which can be accessed by a public authority under any other law for the time being in force.

Another term which may help us to understand the term Information better is the word Record which is defined under Section 2 (i) of the Act which includes- 

• Any document, manuscript and file;
• Any microfilm, microfiche and facsimile copy of a document;
• Any reproduction of image or images embodied in such microfilm (whether enlarged or not); and
• Any other material produced by a computer or any other device.

Hence from the reading of the above mentioned definitions along with section 3 in totality makes it clear that the citizens have the right to access all those information which are held by or under the control of any public authority. The manner in which these terms have been defined under the Act shows that it has been done for the sole reason of concretizing the people’s right to information so that no information can be denied by the public authority for the want of clarity as to what all information can be provided under the Act. It is mandatory to provide all such information as defined under Section 2 (f) and Section 2 (i) to the public as and when needed by them.

In the case of Central Public Information Officer, Supreme Court of India vs. Subhash Chandra Agarwal the Supreme Court, on the question of whether the office of the chief justice of India and whether the declaration of assets by the judges to the Chief justice of India comes under the ambit of RTI Act, by relying on the section 2 (h), (j) and (f) held the office of the Chief justice of India comes under the purview of RTI (Right to information) and is a public authority under Section 2 (h) of the Act. It was held that the citizens have the right to information under Section 2(j) of the RTI Act with regard to the information of declarations of assets by the incumbent judges to the Chief Justice of India and such information relating to declaration of assets by the judges comes under the definition of information under Section 2 (h) of the Act. It held that “such disclosure would not tantamount to encroaching the personal information and privacy of the judges. The Chief Justice did not hold such declarations in a fiduciary capacity or relationship and in terms of Section 8(1)(e) of the RTI Act and that the information was neither protected under Section 8(j) of the Act.’’^[8]

• Information relating to matters more than 20 years past

Section 8 (3) specifically mentions the time duration of 20 years after which the person can access such information and the same would not amount to the violation of right to privacy in relation to that information. The Section provides that the public authority has to disclose the information when requested by the individual under Section 6 if such information relates to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made by such individual.

In Green hood cooperative housing society ltd v. State of west Bengal, It is observed that any information falling under Section 8 (3) shall be made available when requested and such disclosure shall not amount to infringement of right to privacy. In other words such disclosure cannot be challenged on the grounds of breach of privacy right.^[9]

• Municipal records

Municipal records also come under the definition of Information as provided under the Act. Whenever an individual requests and applies for accessing such records it becomes obligatory on municipal bodies to provide such information. In Ram Vishal v. Dwarka Prasad Jaiswal, It was held that the record of the Municipal Corporation is a public record and it will be usually presumed that there should be no difficulty in getting the certified copy of public records. Where a person applies for certified copies of public record and it has been denied, there must be some substantial reason which ought to be placed on record supported by an affidavit stating reason for rejecting the request for the said records.^[10]

• Procedure for seeking Information

• Submission of an application (section 6)-
• Whoever requests for an information has to first apply to the concerned Public Information Officer of the concerned authority either in writing(english, hindi or local official language of the area) or through electronic means or through email. Where the request is not in writing, PIO will provide assistance to reduce it in writing.
• The application should contain the applicants name, address and particulars for a response in prescribed format as mentioned in rules.
• The person seeking information is not required to mention the reason for seeking information.
• Prescribed fee (section 7) –
• The applicant seeking information has to pay a prescribed fee along with the application.
• There shall be no fee for the person coming below the poverty line.
• Review of the fees could be sought by the applicant through an appeal to the concerned Appellate Authority.
• Applicants shall be provided with the information free of cost if there is a failure to respond within the time limit as mentioned in the RTI Act.
• Response time (section 7)-
• In normal cases- after the receipt of an application by an applicant the concerned PIO shall provide the information to the applicant within 30 days from the receipt of an application.
• In case of life and liberty of person- in such cases the PIO shall provide the information within 48 hours from the receipt of application to the applicant.
• where the application is sent through the assistant Public Information Officer or sent to a wrong a wrong public authority, five days shall be added to the period of 30 days or 48 hours, as the case may be.
• In case of third party information(section 11)- if the information involves the interest of the third party then In case of Third party information, PIO gives written notice to the said third party within five days from the receipt of the request for information, stating that he intends to disclose the information and whether the information sought should be supplied or the third party has any objections regarding the same and while deciding the RTI application, such submission is taken in consideration, to decide whether the PIO should provide the information sought or not. The third party is required to file the representation within 10 days from the date of receipt of such notice either in writing or orally. After receiving the oral or written submission from the third party and if the PIO decides in favour of the applicant the PIO within forty days (40) after receipt of the request under section 6 shall furnish the information to the applicant.
• No response to the application within the time limit is deemed refusal.
• Appeals-
• If the PIO fails to furnish the information within the time prescribed for the information as mentioned above or if the applicant is not satisfied with the information given to him, the applicant can prefer an appeal to first Appellate Authority who is an officer senior in rank to the PIO, within a period of 30 days from the date on which the time limit prescribed for providing the information gets expired or from the date on which the information or decision of the PIO is received.
• If the first Appellate Authority fails to decide the appeal within the prescribed time of 30 days or if the applicant is not satisfied with the order of the first Appellate Authority, he may prefer a second appeal to the Central Information Commissioner within 90 days from the date on which the first Appellate Authority should have decided the case or the date on which the applicant had received the order of the court.

• Information that is required to be disclosed to the public without any request

Under this category for accessing Information it does not require any request to be made but it is obligatory for the Public Authority to make such information public as enumerated in clause (b) and (c) of Section 4 (1) of the RTI Act which can be accessed by the citizen easily and without following any procedure.

• Obligation on the authorities to disclose information

The Right to Information Act not only requires the public authority to provide information upon request, it also makes it obligatory on the part of the public bodies to actively disclose, disseminate and publish information of general public interest as widely as possible and in any form possible to the public even before it has been requested. ^[11]Section 4 (1) (a) creates an obligation on every public authority to proactively maintain information of general nature for easy access to the public. The overall reading of Section 4 of the RTI Act, 2005, makes it obligatory for every public authority to publish information regarding as many as 17 items enumerated in Clause (b) (i) to (xvii) which need to be updated every year.

• Publishing and dissemination of information

Section 4 (3) of the Act provides that all information “shall be disseminated widely and in such a form and manner which is easily accessible to the public.”This tries to establish that it is not enough for the public authority to collect and store the information with them, instead it is essential on their part to ensure that every citizen can access the information easily in a manner and form that can be understood. Dissemination of information by public authority includes making known or communicating the information to the public through the notice board, newspapers, public announcements, media, broadcasts, advertisement, internet or any other means. It also includes inspection/access of official documents of the office of any public authority^[12].

Section 4 (4) makes it mandatory that all information sought to be disseminated must be cost effective, that is, at no cost or available at low cost, must be given or published in local language and must be released in the most effective method of communication.

• Suo moto information

Section 4 (2) of the act requires the public authority to provide as much information as possible suo moto (at their own initiative) to the public at regular intervals through any modes of communication including press, print and internet media. The object of providing information suo moto is to enable the public to know about various governmental and public issues and thereby there is no need for the citizen to request for these informations by taking resort to the provisions of the RTI Act.

The two categories of information that has to be disclosed, as we have discussed in the above paragraphs, the first category of information requires diligence on the part of the public authority before it is provide to the public on their request as it is necessary to ascertain whether they are exempted from disclosure under the Act or not.

With regard to the second category of the information it cast a duty upon the public authority to collect, store and disseminate information suo moto as widely as possible to the public as provided under section 4 (1) (b) and (c) in a proactive basis.

The Supreme Court in The Institute of Chartered Accountants of India v. Shaunak H. Satya and Others^[13] observed that It is necessary to make a distinction between the information which is crucial for bringing transparency and accountability and in reducing corruption, following under section 4 (1) (b) and (c) and other information which may not have a bearing on accountability or reducing corruption but the disclosure of which may interfere with other public interest including efficient operations of public  authorities and government, preservation of confidentiality of sensitive information and optimum use of limited fiscal resources. Hence while dealing with the request for the access to information, the Public Information Officer is required to maintain a balance between the right to know and other competing public interest. Section 8 of the RTI Act helps in maintaining such balance by providing exemption to certain information from being disclosed.

Information exempted from disclosure

Like any other fundamental right, Right to Know is also not an absolute right, restrictions can be placed on it on reasonable grounds. Right to Information Act, 2005 provides information to the general public but there is certain information the disclosure of which may infringe upon other rights like right to privacy or other public interest or which may harm the sovereignty or integrity of the nation. These are certain grounds on which disclosure of information may be validly denied. Section 8 of the RTI Act provides for various grounds on which disclosure of information can be denied to the public. The main objective behind introduction of section 8 in the RTI Act is to harmoniously balance the various conflicting rights available to the public so that not a single right gets jeopardized by the other as every right is fundamental and intrinsic in its own form.

The same idea was seen to be reflected in the case of C.B.S.E of secondary education and others v. Aditya Bandopadhyay and ors, where it was observed that the preamble to the Act specifically states that the object of the Act is to harmonise the two conflicting interests, which is important for preserving democracy and achieving the object of the RTI Act. The two conflicting interest that the Act seeks to harmonise is; first, to bring about transparency and accountability by providing access to information under the control of public authorities and second to ensure that the revelation of information, in actual practice, does not conflict with other public interests which include efficient operations of the government, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information. The court further elaborated that such harmony is brought into action through the provisions of sections 3 and 4, which seek to achieve the first objective, and through sections 8, 9, 10 and 11 which seek to achieve the second objective. Therefore the object behind incorporating section 8, which exempt certain information from being disclosed, is not to fetter the right to information but to grant protection to other public interests essential for the fulfilment and preservation of democratic ideals.^[14]

The grounds on which information may be denied under Section 8 (1) of the RTI Act, 2005 are:

The information under the Act can be denied if:

1. The information, the disclosure of which would prejudicially effects sovereignty and integrity of India, security, strategic, scientific or economic interest of the state, relation with the foreign state or lead to incitement of an offence;
2. The information, publication of which, is expressly forbidden by court of law or tribunal and disclosure
3. Of which may constitute contempt of court;
4. The Information, disclosure of which, would cause breach of privilege of the Parliament or the State Legislature;
5. The Information is related to commercial confidence, trade secrets or intellectual property and the disclosure of which would harm competitive position of the third party unless the competent authority is satisfied that the public interest warrants disclosure of such information;
6. Information available to the person in his fiduciary relationship unless the competent authority is sissified that larger public interest requires disclosure of such information;
7. Information received in confidence from the foreign government;
8. Information, the disclosure of which, would endanger the life or physical safety of any person or identify the source or assistance given in confidence for enforcement of law or security purposes;
9. Information, if given, would  impede the process of investigation or apprehension or prosecution of offenders;
10. Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other Officers;
11. Any information which is personal and has no connection and relation  to any public activity or interest or which would cause unwarranted invasion into  the privacy of the individual
12. Notwithstanding any of the exemption listed above, a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interest.^[15]

There are certain organisations that have been exempted from the provisions of the act as mentioned in the Second Schedule namely certain Intelligence And Security. However even in such organisations if there is some information relating to allegations of corruption or violation of human rights, such kind of information is not exempted. The concerned government can add or delete any organisation from the Second Schedule.^[16]

The right to information act 2005 being elaborative in nature as it includes both the disclosure and non-disclosure of the information it has an overriding effect over all the laws that are inconsistent with the RTI Act.

Overriding effect of the Act

Section 22 of the Right to Information Act, 2005 creates overriding effects to the provision of this Act. It provides that in case there is any inconsistency between the laws relating to right to information and any other law which is in force including the Official Secrets Act, 1923, the provision of Right to Information Act shall prevail. This overriding effect of the RTI Act would extend to all laws irrespective of it being a central law or a state law and its provision shall prevail in case there is any inconsistency between the two.

Practical implementation of the Act

Though the RTI Act has been enacted for the easy realisation of citizen’s right to know and it has been actively used by the public to exhort their right and also to make government accountable and their functioning transparent, there are certain factors which require focus as they hinders the proper implementation of the Act.  The annual reports on monitoring of right to information laws in the country reveal that there are a number of obstacles that come in the way of enforcing the RTI laws, the most important being the dearth of political intention both at the ministerial and bureaucratic levels to encourage transparency, openness in the Government’s administrative functioning. Even though the rate of rejection of RTI application is low, at an estimated 6% in 2018-2019^[17], the reforms have been resisted by the government, and the focus of all the political parties has only been further weakening the law. The passage of the RTI (Amendment) bill 2019 by the parliament is one such example. The amendment deals with matters relating to tenure, allowances and the terms of the services of the information commissioner. The consequences that follow from this are- first, it makes the commissioners subservient to the Government, which undermines the independence in issuing orders and monitoring implementation and secondly the Government can now easily interfere in the everyday functioning of the commission.

Thus the centre now having wide discretion to notify terms of office can get rid of the uncomfortable commissioners who would go against the will of the Government in providing the information to the public. Such a move by the Government in power should be strongly opposed.^[18]

The scarcity of proper public records, storage system and proper archives is also one of the major setbacks to the effective implementation of the information law. As per section 4 of Right to Information Act, it is obligatory on every public authority to provide as much information suo moto to the public at regular intervals through various means of communications, including internet, so that the public have access to maximum information with minimum resort to the use of this Act to obtain information. Though the development of information technology and the internet have significantly helped in managing information in the Government department but lack of adequate and proper training to the concerned staff creates problems in effective disposal of requested information and its prompt disclosure. It is therefore necessary to strengthen the information and records management system through these modernised tools of information dissemination^[19].

What can be done for better implementation of the RTI Act

• The Public Authorities along with government should take measures to increase the level of awareness regarding the people’s right to information and must ensure that the RTI delivery happens as per the provisions of the Act,
• They have to be ultimately responsible for,
• Identifying the loopholes in the functioning of the RTI offices of delivering the information,
• Identifying  the basic resources needed and ensure to provide for the same,
• Proper maintenance of the information which is required to be furnished to the State Information Commission in accordance with Section 25(3).
• The role of the Centre/State Government is to facilitate and provide with the means to the Public Authorities for the proper and effective implementation of the Act. This can be achieved by providing e-Training modules, training, creating awareness amongst citizens, development of software applications, etc to Public Authorities. The role of the Information Commission has to be extended beyond the Hearing of the appeals and it should take responsibility for ensuring the proper disposal of applications seeking information. As per the provisions of the Act, they are required to issue orders or directions to the Public Authorities to carry out their duties as per the mandate of the Act. “However till the time the Information Commission assumes the role of ensuring the compliance of the RTI Act by the various Public Authorities, there would not be any control mechanism. The State Government has to play a facilitative role to the Information Commission through issuance of supporting rules/orders to the Public Authorities’’.^[20]

Conclusion

The Right to Information Act, 2005 has provided the people with the power to question the functioning of public authority dealing in areas affecting the public in general thereby giving more strength to the democratic values of the country. The intention of the Right to Information Act has been to provide good governance by invoking transparency and accountability in various government organisations who are interested in the duty to work for the public welfare failing which the public has complete power to question such failure and RTI Act is the means for exercising that power. Thus every action that jeopardises the implementation of the Act has to be sidelined and should be opposed. In order to successfully realise the objective of the RTI Act constructive, creative and decisive action from the Government as well as the community at large is required.

References

1. https://indiankanoon.org
2. https://rti.gov.in
3. https://cic.gov.in/reports/37
4. RIGHT TO INFORMATION IN INDIA by Dr. Vinay N. Paranjape1^st edition

^[1] http:// right to information.gov.in/ Web Act RTI.htm.

^[2] AIR 1986 SC 515

^[3] AIR 1982 SC 149

^[4] Lawrence D’Souza v. State of Bombay, AIR 1956 SC 531; Gulam v. State of West Bengal AIR 1976 SC 754

^[5] State of Madras v. V.G Row, AIR 1952 SC 196

^[6] Dinkar S. Natrajan v. State Information Commissioner, Hyderabad, 2009 (79) AIC 453 (AP)

^[7] Section 2 (j) RTI Bare Act.

^[8] 2019 SCC OnLine SC 1459

^[9] AIR 2009 Cal 129

^[10] AIR 2006 MP 68

^[11]https://www.humanrightsinitiative.org/programs/ai/rti/india/officials_guide/proactive_disclosure.htm

^[12] RIGHT TO INFORMATION IN INDIA by Dr. Vinay N. Paranjape1^st edition pg.93

^[13] 2011 SCC 38

^[14] AIR 2011 SCC 33

^[15] Section 8 (1)

^[16] Section 24 (1)

^[17] https://cic.gov.in/reports/37

^[18] an article published in Hindustan Times (eng.) dt. 26 July, 2019 by Yamini Aiyar “RTI Amendments Must be opposed’’

^[19] “are we really democratic”  – an article published in DainikBhaskar(eng.) dt. 26 February, 2013 by justice katju

^[20] https://rti.gov.in

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