Right to information

In this article, Parthapratim Das pursuing M.A, in Business Law from NUJS, Kolkata discusses All you need to know about Right To Information in India.

Right to information is the sign of advancement of human civilization

The right to information as propounded in the Right to Information (RTI) Act, 2005, is the culmination of a stage in the advancement of human civilization. It is the embodiment of one of the mature facades of the democracy flourishing in the country. This right is also an index of growth of human rights and liberties in their vital palpitations, spontaneously flowing from the democratic credentials of the Country.

With the mental growth and advancement of science, technology and industry the growing consciousness of human rights and liberties paved way for democratic form of governance. Freedom is an inbuilt desire in almost every animate being. Therefore the growing consciousness for various liberties resulted in revolutions against the autocracies and monarchies in the various parts of the world and the political scenario was visited by democracy, growing and flourishing in a big way, in many countries of the world. The one of the major endeavors of democracy was to accord growth of human liberties and dignity.

Since our independence was the result of centuries old struggle and sacrifice, the people cherished high hopes and aspirations from the new setup. Accordingly, the Constitution of India provided befitting provisions in the form of fundamental rights and directive principles of the State Policy.

Movement and development of Right to Information and its place in the Constitution of India

The Constitution of India does not explicitly grant a right to information. However, the Supreme Court of India has held in several cases that the right to information is implicit in the constitutionally enshrined Right to Life and Liberty in Article 21 supported by the Right to Constitutional Remedies in Article 32 which provides the right to approach the Supreme Court and High Court in case of any of these rights. Dynamic interpretation of these Articles by the Supreme Court over the years has lead to the development of the Rule of Law in India. The legal position has develop over a period of time through several court decisions.

In the absence of clear legislation on the right to information, the only resort left to the citizens was to knock at the doors of the courts every time they wanted to enforce this right.

In 1993, the Consumer Education and Research Council, Ahmedabad proposed a draft RTI Law. The Press Council Of India headed by Justice P.B. Sawant presented a draft model law on the right to information to the Government of India in the year 1996.

The first Legislation  in India enacted as the ‘Freedom of Information Act,2002’ which enabled a citizen of India to secure access to information under the control of public authorities, died in womb as the infrastructure required to make it operational could not be fully established. The Freedom of Information Act,2002 was repealed and replaced by a new legislation “The Right to Information Bill, 2005” which was introduced in Lok Sabha on 23.12.2004.

Right to Information (RTI), 2005 received the assent of the President on 15.06.2005 ( published in the Gazette of India Ext. Pt. II, S.1 dated 21.06 2005 ) and came into force on 12.10.2005 though some sections like Secs. 4(1), 5(1), 5(2), 12, 13, 15, 16, 24, 27 and 28 came into force with immediate effect. It extends to the whole of India except the State of Jammu & Kashmir. “Right to Information” means the right to information accessible under RTI, 2005 which is held by or under the control of any public authority. Any citizen is entitled to obtain information under this law, inspect work, documents, reports held by Public Authorities or even information relating to private authorities under the control of the Public Authorities. Citizen are entitled to take notes, extracts, certified copies of records and documents as also obtain information in the form of diskettes, floppies or in any other electronic mode or through print-outs where such information is stored in a computer or in any other device [sec. 2(j)].

It has been realized that RTI Act, 2005 will be in the interests of both the stake holders of the political system, that is, information providers viz., the government and all the other public organizations and the information seekers, viz., the members of the public. It is expected to promote transparency and accountability in public administration and thus help in improving the decision making process, as also in reducing corruption, nepotism and casteism. This will enhance manifold the credibility of the government. On the other hand, it will provide an empowering tool in the hands of the public through which they will secure access to information which enable them to make informed choices and thus facilitate individual participation in public affairs and also enable them to assert their democratic rights more effectively. In other words, RTI act,2005 has given due recognition to the fact that the right of access to information is the life-blood of a democracy since paucity of information stunts the development of a people as it deprives them of the opportunity to grow up to their optimum potential.

The Right to Information Act harmonizes the public interest

The Act envisages the harmonization of public interest with the right to information. In spite of all things said and done in favour of right to information, there are some areas where the public interest demands some element of secrecy. It has been felt that certain areas of Governance have to be kept outside the purview of the RTI Act, the same have been exempted under the specific provisions envisaged under the Act. Thus, a harmonious balance has been tried between the two.

As a matter of statutory provisions, the Act provides for imparting information being held by the public authority and it does not provide for redressal of grievances or entertaining suggestions for doing or not doing something. Though it aims at reforming the public administration by ensuring transparency and accountability and thus eliminating corruption, it does not provide for the remedy within its purview. It simply helps in unveiling what is happening within the system of governance through the public authorities. Therefore, there is no scope in the RTI Act to either make suggestions or to seek redressal of grievances.

Followings answers of some questions about right to information should be needed to know by every citizen of India:

What is the meaning of the word “Information”?

The concept of information under the Act has been given a wide scope. It has been defined in detail including the various modes and forms of information which can be accessed under the right to information. Since it is the key theme of the Act, its various connotations, forms and dimensions have been incorporated in the Act.

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

What is the meaning of the word “Right to Information”?

“Right to Information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to inspection of work, documents, records, taking notes, extracts or certified copies of documents or records, taking certified samples 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 computer or in any other device.

It is the right to obtain information from a public authority which is held or controlled by such authority. This right extends to every piece of information which has a public nature. Such as :-

  • Inspection: means to see a work document or record closely, carefully and purposefully.
  • Taking notes: may mean noting down certain information from the documents inspected.
  • Certified samples of material: since it is to ensure transparency and to contain corruption, it authorizes the citizens to take samples from the material being purchased or used by the Public Authorities.

What is ‘public authority’?

A ‘public authority’ is any institution or authority or body of government established or constituted by or under the Constitution, or by any other law made by the Parliament or State Legislature, or by notification issued or order made by the Government of India or the State Government. The bodies owned, controlled or substantially financed by the Government of India or the State Government and non-Government organizations substantially financed by the Government of India or the State Government.

What is the method of seeking information?

Citizen, who desires to obtain any information under the RTI Act, should make an application to the Public Information Officer (PIO) concerned of the Public Authority in writing in English or Hindi or in the official language of the area in which the application is made. The application should be precise and specific. He should make payment of application fee at the time of submitting the application as prescribed in the Fee Rules. The applicant can send the application by post or through electronic means or can deliver it personally in the office of the public authority. The application can also be sent through an Assistant Public Information Officer.

This application may be written or in electronic form and it could be in writing or printed or may be sent through electronic means i.e. through e-mail or fax etc. As per circumstances and the conveniences of the applicant he may choose any mode. The choice of the language would be that of the applicant and the SPIO and ASPIO concerned cannot force the applicant to use a particular language. However, the SPIO may decide the mode of supply of information as per availability of the resources.

Whether it is required to give any reason for requesting the information?

An application making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.

This provision tries to give a force and absoluteness to the right. This takes the right away from the purview of reasoning and justification. It is an absolute right to this extent and to obtain information under the Act, no reasoning or justification is required. Once the application is duly filed under the provisions of the Act, the SPIO has to give the information except when it is otherwise exempted under the Act. Once it is there that he is a citizen of India, he has the right to obtain information and beyond that he is not required to disclose any further details.

What are the fees prescribed by the Right to Information Act for seeking information?

A person seeking some information from a public authority is required to send , along with the application, a demand draft or a bankers cheque or an Indian Postal Order (IPO) of Rs.10 (Rupees ten) , payable to the Accounts Officer of the Public Authority as fee prescribed for seeking information. The payment of fee can also be made by way of cash to the Accounts Officer of the Public Authority or to the Assistant Public Information Officer against proper receipt. The application may also be required to pay further fee towards the cost of providing the information, details of which shall be intimated to the appellant by the Public Information Officer (PIO) as prescribed by the Right to Information (Regulation of fee and Cost) Rules, 2005. Rates of fee as prescribed in the Rules are :-

  • Rupees two (Rs.2/-) for each page (in A4 or A3 size paper) created or copied;
  • Actual charge or cost price of a copy in larger size paper;
  • Actual cost or price for samples or models;
  • For information provided in diskette or floppy, rupees fifty ( Rs. 50/-) per diskette or floppy; and
  • For information provided in printed form, at the price fixed for such publication or rupees two per page of photocopy for extracts from the publication.

For inspection of records, the public authority shall charge no fee for the first hour, but a fee of rupees five for each subsequent hour or fraction thereto shall be charged. If the application is a BPL Card holder, and submits a proof in support of his claim, he is not required to pay any fee.

Retention of record

The Act does not require the public authorities to retain records for indefinite period. The records need not be retained as per the record retention schedule applicable to the concerned public authority. Information generated in a file may survive in the form of an OM or a letter or in any other form even after destruction of the file/record. Section 8(3) of the Act requires furnishing of information so available after the lapse of 20 years even if such information was exempt from disclosure under sub-section (1) of section 8.

Transfer of the application

Where an application is made to a public authority requesting for an application, which is held by another public authority; or the subject matter of which is more closely connected with the functions of another public authority, the public authority to which such application is made, shall transfer the application or such part of the application as may be appropriate to that other public authority and inform the applicant immediately about such transfer.

Once the application is duly transferred to the public authority under the provisions of the RTI Act, it is the liability and responsibility of the concerned public authority, to which the application is transferred, to provide the information which is in its possession or custody. If such public authority fails, it is not the responsibility of the transferring public authority.

Third party information

Third party in relation to the Act means a person other than the citizen who has made request for information. The definition of third party includes a public authority other than the public authority to which the request has been made.

Disclosure of third party information

Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of third party, is exempt from disclosure. Such information should not be disclosed unless the competent authority is satisfied that larger public interest warrants the disclosure of such information. The third party should be given full opportunity to put his case for non-disclosure if he desires that the information should not be disclosed.

Time limit for disclosing information

Section 4(1) prescribes a time limit of 120 days for certain information to be disclosed suo motu at the level of the public authority. This is regarding the board information pertaining to functioning of an organization. The items mentioned in cl.(i) to (xvii) contain a comprehensive detail of establishment, procedure, duties, norms, rules, documentation, formulation of policy statement, staff pattern, salary structure, budget allocation, programmes concessions, permits, status of record, facilities available to the public and beneficiaries and the steps taken for the enforcement of right to information etc. It is basically to allow an insight to the citizens and without any specific request by an individual the detailed facts are notified to the public at large. Thus after such details are disclosed the basic purpose of the Act regarding transparency is achieved to a great extent.

Disposal of request

Subject to the proviso to sub-section (2)  of the section 5 or the proviso to sub-section (3)  of section 6, the Central Public Information Officer or State Public Information Officer as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as prescribed or reject the request for any of the reasons specified in sections 8 and 9 : provided that where the information sought for concerns the life or liberty of a person, the same shall be provided within forty-eight hours of the receipt of the request.

Under the provisions of the Act, either the information is to be granted on payment of the prescribed fee, if any, or the application may be rejected on the grounds mentioned in sections 8, 9 or 24. There is no third option. Application means a valid application under the Act along with the payment of prescribed fee. However the information regarding corruption and violation of human rights cannot be declined even under section 24 of the Act.

Deemed Refusal

If Central Public Information Officer or State Public Information Officer, as the case may be, fails to give decision on the request for information within the period specified under the sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall be deemed to have refused the request.

What is the process of filing of an appeal?

An applicant can file an appeal to the first appellate authority if information is not supplied to him within the prescribed time of thirty days or forty-eight hours, as the case may be, or is not satisfied with the information furnished to him. Such an appeal should be filed within a period of thirty days from the date on which the limit of 30 days of supply of information is expired or from the date on which the information or decision of the Public Information Officer is received. The appellate authority of the public authority shall dispose of the appeal within a period of thirty days or in exceptional cases within 45 days of the receipt of the appeal. If the appellate authority fails to pass an order on the appeal within the prescribed time period or if the appellant is not satisfied with the order of the first appellate authority, he may prefer a second appeal with the Information Commission within ninety days from the date on which the decision should have been made by the first appellate authority or was actually received by the appellant.

Information concerning his or her right with respect to review the decision as to a number of fees charged or the form of access provided, including the particulars of the appellate authority, time limit, process and any other forms.

Any person who, does not receive a decision within the time specified in sub-section (1) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be, may within 30 days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or State Public Information Officer, as the case may be, in each public authority:

Provided that such officer may admit the appeal after the expiry of the period of 30 days if he or she is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

The Information Commission

The Central Government shall, by notification in the official Gazette, constitute a body to be known as the Central Information Commission to exercise the powers conferred on, and to perform the functions assigned to, it under this Act.

Whether the RTI Act has overriding effect on the other Acts?

Right to Information had been held as implicit in the right of free speech and expression guaranteed under the Article 19(1)(a) of the Constitution. However, the free flow of information was restricted by legislations like the Official Secrets Act, the culture of secrecy within the bureaucracy and the low level of literacy and awareness of rights among the people. The Act aims at bringing total transparency. The preamble clearly states that it intends to harmonize the need to keep certain matters secret but at the same time reiterating the paramountcy of the right to know. Thus the Act intends to bring in a total change in the mindset of secrecy generated by the colonial legislations such as the Official Secrets Act and the Law of Evidence. This Act has been given an overriding effect on the other Acts including the Official Secrets Act, 1923. If any provision of the Official Secrets Act prohibits the publication of particular information and the same is allowed under the Right to Information Act, the information shall be published notwithstanding the provisions otherwise provided under the Official Secrets Act. Therefore section 22 when read together with the provisions of section 8(1) of the Act, would mean that it may overrule the conflicting provisions of Official Secrets Act, 1923 but the orders passed by courts and tribunals regarding the dissemination of information will have to be honored.

Right to Information and Right to Privacy

Section 8(1)(j) – information which relates to personal information 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 or State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger 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 to any person. The information which is purely personal nature and which has nothing to do with public interest. It may relate to an individual. This information may have strictly personal contents which may result in invasion to individual’s privacy, if disclosed. Broadly speaking it may be confidential report of an official, Income tax returns of an individual, Bank Account, Property statement etc. this is an attempt to keep the private life separate from public life. If the Information pertaining to a private individual has no connection with the public interest, it cannot be disclosed under the Act in normal course.

However, if the concerned SPIO or the appellate authority is satisfied that greater public interest would be served in the disclosure of the information and it is desirable to do so, such information may be disclosed. But such decisions are not taken in routine by concerned authorities. The interest of the individual would have to be balanced against the public interest.

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