By Shristi Todi, NEF Law College, Gauhati University
Editor’s Note: The Right to Information Act was passed in 2005, and since then it has overwhelmingly proved to be boon for the masses of the general public. In a country where bureaucratic red tape often stretches to miles, an informed citizen can utilize this Right to successfully cut through.
The problem, however, remains that few from the general public are actually aware of the very simple process involved. In this paper, the author has examined the genesis of the Act and presented a compelling case for its need to be widely publicized and implemented. She goes on further to cite the various interpretations that courts have drawn over the years, regarding the wide areas that this right is applicable to.
The author has also laid out a very simplified process that is involved in the filing of an application. Towards the end, the author lists some fault lines that lie within the entire process and also some ways to rectify them.
A poor slum dweller had once applied for a new ration card when he was told that he would have to give a bribe of Rs. 2000 to the officials to obtain it. Our friend, -an RTI-empowered Citizen, – smiled, and applied for the ration card without offering any bribes or groveling in front of the officials for pity. He found out that the bribe-givers got their ration cards in about four weeks.
He waited for an extra four weeks, and then applied for information under RTI. Using a simple format with an application fee of Rs. 10, he delivered it to the Public Information Officer of the Food and Supply office. He had asked up to, which date applications for ration cards had been cleared, and the daily progress report of his application. This shook up the corrupt officials since the answer would reveal that they had given ration cards to others who had applied after him, which would be conclusive evidence that they had no justification for delaying his card.
Happy ending: The Ration card was given to him immediately. Our RTI-empowered Citizen had been able to enforce the majesty of the Citizen by using RTI.
“The real Swaraj will come not by the acquisition of authority by a few, but by the acquisition of capacity by all to resist authority when abused”. When Mahatma Gandhi said this, he may not have imagined that one day India will have to make a law to empower people for something as basic as seeking information about the development of the country. The need for the government to pass a law in Parliament in 2005, giving a constitutional right to citizens to information, may be termed as both transformational and shameful at the same time.
With the passage of the Right to Information Bill 2005 by the Rajya Sabha on May 12, 2005, India is now one of the 55 countries, which have legislated comprehensive laws that protect the citizens’ right to information. Nine States namely, Delhi, Maharashtra, Tamil Nadu, Rajasthan, Karnataka, Jammu & Kashmir, Assam, Goa, and Madhya Pradesh already have laws on the right to information. The Supreme Court of India has, from time to time, interpreted Article 19 of the Indian Constitution, which upholds the right to freedom of speech and expression, to implicitly include the right to receive and impart information.
The Right to Information Act in India has had a successful beginning. The Public Authorities (PAs), namely the Government Organizations at the Centre and in States, the Public Information Officers (PIOs), the Government Organization Appellate, State Information Commissions (SICs) and the Central Information Commission (CIC) are all in place and functional. Citizens are seeking information through RTI requests and PIOs are continuously busy in responding to them.
However, the success so far has been in the implementation of the “process” defined in the RTI Act. In order to conform to the statutory requirements of the RTI Act, PAs have established an “RTI Cell” and have published their RTI procedures on their website. As a result, they have completed the “process”. What most PAs have chosen not to focus on is the convenience and effectiveness of the RTI program from the citizen’s standpoint. In fact, the resistance to disclosing information is so prevalent that several “RTI Activists” have mushroomed across the country to act on behalf of citizens. The nadir of the “RTI environment” today is such that citizens and activists are being openly threatened for seeking information, thereby indicating hidden skeletons in the government’s closet.
First Things First
Section 2(f) of the act very clearly says about the definition of the term “information”, accordingly “information means any material in any form, including records, documents, memos, e-mails, opinions, advice, press releases, circulars, orders, log, books, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be assessed by a public authority under any other law for the time being in force.
The meaning of the expression “ right to information” is clearly stated in Section 2(j) of the act, accordingly, 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 of 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 in any other device.
This Act by Section 3 declares that all citizens shall have a right to information. This right is equivalent to the right to freedom of speech and expression which was held in the case of Bennet Colman v. Union Of India, the Supreme Court of India in Bennet Coleman case while taking into account the Newsprint control order, allotment of newsprint to a newspaper was restricted, held that such restriction had not only infringed newspaper’s right to freedom of speech but also readers’ right to read was cut down. And the reader’s right to access the newspaper was his right to information which was implicit in the right to Right of freedom of speech.
Similarly, in SP Gupta v Union Of India case, the Supreme Court observed that “the people of this country have a right to know every public act, everything that is done in a public way, by those functionaries. They are entitled to know the very particulars of every public transaction. Also, in the case of Secretary Ministry of Information and Broadcasting v Cricket Assn. of Bengal the Supreme Court held that the airwaves were a public property and its distribution among the government media and the private channels should be done on an equitable basis as the freedom of speech included the right to impart and receive information from electronic media.
In Essar Oil Ltd v. Halar Utkarsha Samiti, the Supreme Court held that right to information emerges from right to personal liberty guaranteed by Article 21 of Constitution. The Right to information is definitely a very powerful tool for exercising the fundamental Right to freedom of speech and expression.
The Right to Information Act covers the whole of India except Jammu and Kashmir, where J&K Right to Information Act is in force. It is applicable to all constitutional authorities, including the executive, legislature and judiciary; any institution or body established or constituted by an act of Parliament or a state legislature. Private bodies are not within the Act’s ambit directly.
Certain organizations such as the Central Intelligence and Security agencies specified in the Second Schedule like IB, Directorate General of Income Tax Investigation are excluded. The exclusion, however, is not absolute and these organizations have an obligation to provide information pertaining to allegations of corruption and human rights violations.
There is a class of information also specifically excluded from the scope of this act. For example, Information, the disclosure of which would prejudicially affect the sovereignty and integrity of India.
The RTI regime has witnessed tremendous response from the masses, as is clearly reflected in the number of litigations that have to take place in the recent past. In a landmark case of Pritam Rooj vs University of Calcutta the Supreme Court gave a historic order ruling that every student of this country has the right to get a copy of his or her answer-sheet in every examination he or she sits for-be it the state board, CBSE or any competitive examination!
The apex court had ruled that evaluated answer-sheets are covered under the definition of “information” under the RTI Act. This judgment applies to all examinations including the Public Service Commissions, Universities, CBSE and other boards, professional bodies like ICAI—in fact, every examination conducted by any agency in India. Many newspapers reported it as a true victory for students.
The entire judgment of the case can be summarized as follows:
The entire concept of allowing the students to have access to their papers came to limelight first in 2007 when a student of Calcutta University, Pritam Rooz filed an RTI application seeking the disclosure of his answer sheet. His request was denied due to the university policy. At this Pritam Rooz approached the high court, where a single bench and two bench ruled that the university should release the answer sheets.
But the case turned when various universities and educational board like West Bengal Board of Secondary Education, Institute of Chartered Accountancy in India etc. appealed against the High Court decision in the Apex Court. Rooz, however, didn’t continue the case and the case was taken over by many student social groups like joint operation for a social group.
The exam conducting universities opposed that evaluated answer sheets are not covered under “information” as defined in the RTI Act, and also placed the view that releasing of the answer sheets would lead to the collapse of the entire educational system. On this, the court said that several universities that disclose corrected answer sheets on request haven’t faced such a collapse. It is also said that it is the duty of public authorities to allow maximum disclosure as envisaged by the RTI Act.
Also in a famous case of Reliance Industries Ltd. Vs Gujarat State Information, the judgment on the privacy of one’s life was being held. It is said that the Public Information Officer should give an opportunity to the third party of personal hearing and clarify with him that the information provided by him or about him whether in past, present or future is confidential or not and also if the particular information can be disclosed by the PIO to any other person when interrogated through RTI.
Understanding the RTI Structure
The primary stakeholders in RTI are:
- Public Authorities comprising of Public Information Officers and the Appellate; and
- Central and State Information Commissions.
Citizens are the recipients of information, PAs and PIOs the service delivery organizations, and CIC and SICs the monitoring and issue resolution bodies. These are represented in the figure below.
The shortest and fastest route to information is evidently between the citizens and PIOs directly. The citizen files a request for the desired information with the PIO. The allowed time for the furnishing of information by the PIO is 30 days according to Section 7 of the Act.
If the RTI system is effective, 80% to 90% RTI requests should get closed satisfactorily at this level. On the other hand, if there is a rise in the percentage of requests getting escalated to the Appellate level or to the CIC/SIC due to non-receipt of information, it may result in the breakdown of the system sooner or later. Conversely, if citizens are directly or indirectly discouraged to file RTI requests, it will mean complete failure of the RTI Act itself.
Implementation of the Act: Key issues and constraints
The key issues and constraints in the implementation of the RTI Act can be viewed from the following three dimensions:
a) Issues faced on the demand side
Low awareness level: Section 26 of the Act states that the appropriate Government may develop and organize educational programmes to advance the understanding of the public, especially disadvantaged communities, regarding how to exercise the rights contemplated under the Act. However, the only major sources of this awareness at present are:
- Mass media channels like television channels, newspapers etc
- Word of mouth
Quality of awareness is very poor: This is especially seen amongst the rural masses that, even if aware, the quality of awareness is very poor.
Awareness on provisions of appeals and complains: Firstly there are very few people taking recourse to the RTI Act. Above this is the fact that the few who actually use the RTI Act and are dissatisfied with the responses they get are not aware of the appeal procedures. Of those who are aware, hardly few go for the entire hassle of appeals and complaints.
Constraints faced in filing applications: No standard formats for RTI applications prescribed in most states. As such it is difficult for a layman to actually draft a request.
Critical Success Factors for RTI
The success of the RTI Act lies in its execution. Successful execution of the Act does not mean fewer RTI requests, but faster dispensation. It also means that the “right of people” to information will be honored by not hindering any person from filing a request, but by enhancing their access and usability, and by responding to all the requests that are received. While the former will require an efficient and transparent process that reaches out to people in the remotest areas, the latter will need the active participation of PAs and monitoring and control by the CIC and SICs.
Since RTI is a vision and an aspiration, its roadmap will have to belong. The metrics to check its track, therefore, should measure milestones which are planned now.
a) Key Metrics
- There must be consistent growth in RTI requests over the years with exponential growth in the initial years.
- The interpretation of the RTI Act must, to the extent possible under the Indian federal structure, be consistent across central and state governments.
- The level of automation must see a steady increase across government organizations.
- Multi-Pronged Roadmap Five key areas to be addressed in any solution for the long term.
What remains to be seen now is how far this mandate goes in ensuring good governance and transparency in every sector, be it education, politics or whatsoever. As of now, the implementation of the Act has just seen the beginning.
Formatted on March 15th, 2019.