By Kartik Kachhawah, R.N Patel School of Law and Justice
Editor’s Note: The Right to Information Act, 2005 is considered to be one of the leading welfare oriented laws enacted after independence. The act provides for a modus operandi to acquire information from public authorities regarding the functioning of government. In this paper, the author has highlighted the various aspects of this act and its importance in the current political scenario.
Human civilization has always been inclined towards attainment of power. Power can be defined in various forms; depending upon the context it suits, for say; for an entrepreneur capital is power, for a politician influence is power and so on. If we talk about politics it’s again a struggle for power. Today we live in neo-modern age or some thinkers might even contend that we live in an Information age where knowledge and information is considered as the most potent intangible assets which can even buy money. In India we follow a democratic republic form of government which represents will of citizens. Under this form of government it is very important that people should be aware of political agendas, functions of various governmental bodies, welfare schemes, policies and Et cetera. Meaningful substantive democracy ought to be founded on the notion of an informed public competent to participate thoughtfully and actively in the governance of the country.
Democratic government stands on two pillars namely; translucency and reasonable accountability as it is the fundamental goal of a democratic government to put peoples will into action and be answerable to people for the same. Thus, an easy and reliable access to information for citizens is a paramount requisite of a democratic republic and the Right to Information Act, 2005 aims to suffice the same. This paper is fragmented in three parts. The first part basically deals with preliminary questions pertaining to the act such as; what is RTI Act? What is its Constitutional importance? What is covered under RTI Act? Who are the adjudicating bodies…etc. The second part of this paper deals with more complicated issues relating Right to Information i.e. coverage of RTI and issues pertaining to it. The third part of this paper explains the importance of RTI is current political setup.
The Right of Information is well mentioned in Indian constitution. Although there is no specific right to information or even right to freedom of the press in Indian Constitution, the corresponding has been read into the Fundamental Rights guaranteed under Chapter three of Indian Constitution. These include the Right to Equal Protection of the Laws and the Right to Equality before the Law[i] , the Right to Freedom of Speech and Expression[ii] and the Right to Life and Personal Liberty[iii]. These are backed by the Right to Constitutional Remedies in Article 32, that is, the Right to approach the Supreme Court, in case of infringement of any of these rights. However the concept of RTI came before the Constitution itself as the disclosure of information held by public authorities was primarily governed by Official Secrets Act, 1923 which placed major restrictions on access of information. The restrictions placed on the access of information were relieved by the enactment of RTI Act, 2015. In addition to this the right to seek information from public authorities became codified. The RTI Act is an efficient tool to promote transparency in governmental functions. The following part shall explain the purpose behind the enactment of RTI, its constitutional significance and the provisions under the said statue.
Right to Information Act, 2005 has been enacted as welfare legislation. For the better understanding of current statue it is essential to understand the history of RTI.
“Government ought to be all outside and no inside. . . . Everybody knows that corruption thrives in secret places, and avoids public places, and we believe it a fair presumption that secrecy means impropriety”.
Under the Official Secret Act, 1923, the entire governmental process has been covered in secrecy. The people who voted for the formation of democratically elected governments and contributed to the huge costs of financing public activities, had no legal rights to know as to: what process has been followed in designing the policies, how the programmes have been implemented, who are the authorities associated with the decision making process and execution of the schemes and under what reason the promises made for delivery of essential services to public has not been met. Covert politics is the best matrix for corruption and other such activities to proliferate. Under the effect of Official Secret Act, 1923 the governments became totally immune from its liability to answer regarding its actions as there was no ombudsmen to safe guard public interest. As the result, in the early decades of Indian Independence politicians leeched the common citizen by imposing heavy tax. Such tax though collected by government in abundance, no explanation was provided regarding high depreciation of national resources. This led to immense poverty, corruption, political instability and what not. Aggrieved by such situation various NGO’s and other Philanthropic organizations pressurized government to establish an effective way to increase the access of information on public authorities and that’s how RTI, 2005 got enacted[iv]. If we look in the history of RTI act, it can be noted that it took 9 years to finalize and enact RTI Act, 2005. It all began with the formulation of an initial draft of a Right to Information (RTI) law by National Campaign for People’s Right to Information (NCPRI). The draft was then sent to Government in 1996. Later, in 2002 the “Freedom of Information” bill was introduced in national parliament. The bill was then amended to remove basic lacunas and on 12th October, 2005 the RTI Act was brought into force[v].
Globally talking, the first RTI legislation was enacted in 1776 in Sweden. The UN general assembly passed a resolution in 1948 declaring freedom of information as fundamental human right thus recognizing people’s right to have access to official information u/a 19 of the International Covenant on Civil and Political Rights[vi] (ICCPR). Fifty six countries in the world have already enacted RTI laws. Therefore, it is submitted that the Enactment of RTI Act, 2005 is one of the greatest steps towards clean and responsible government.
Right to information is not concerned with or any information that we might get out of news, blogs or other related media but it is concerned with information regarding Governmental actions.
1.2. Constitutional Importance of Right to Information
In L.K. Koolwal v. State of Rajasthan and Ors[vii] Hon’ble Rajasthan High Court observed:
“…Under Article 19 (a) of the Constitution there exists the right of freedom of speech. Freedom of speech is based on the foundation of the freedom of right to know…”
In many such cases the arguments regarding RTI were highlighted by High Court of various States as well as by Supreme Court of India. Before the enactment of RTI Act, 2005, judges made laws protected the Right of Information. Freedom of expression signifies the freedom of media to present truth before public and for the same reason the media, press or any such agency must be provided with proper access to true information. The landmark case in freedom of the press in India was Bennett Coleman & Co. v. Union of India in which the petitioners, a publishing house bringing out one of the leading dailies challenged the government’s newsprint policy which put restrictions on acquisition, sale and consumption of newsprint. This was challenged as restricting the Petitioner’s rights to freedom of speech and expression. The court struck down the newsprint control order saying that it directly affected the Petitioners right to freely publish and circulate their paper. In that, it violated their right to freedom of speech and expression. The judges also remarked, “It is indisputable that by freedom of the press meant the right of all citizens to speak, publish and express their views” and “Freedom of speech and expression includes within its compass the right of all citizens to read and be informed.”
In Indian Express Newspapers (Bombay) Pvt. Ltd .v. India[viii], SC interpreted Article 19 (1) stating:
“…The basic purpose of freedom of speech and expression is that all members should be able to form their beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the people’s right to know…”
The verdict in State of U.P v. Raj Narain[ix] firmly established the principle of administrative transparency. It was well observed by learned KK Mathews J.:
“…In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil of secrecy, the common routine business is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain or to justify their acts is the chief safeguard against oppression and corruption…”
This was prior the enactment of RTI Act, 2005 where various provisions of constitution were interpreted to give an effect to right of information as it wasn’t codified. Thus, the enactment of RTI Act not only strengthened the scope of better governance but it also reinforced constitutional provision regarding Rights to Express.
1.3. Provisions of Act
RTI Act, 2005 contains VI Chapters, 31 Sections and 2 Schedules. Chapter 1 is preliminary. Sec 2 (j) lays defines the term “Right to Information” which includes:
- 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
- Any material in any form
- including records, documents, memos, e-mails
- opinions, advice, press releases, circulars, orders
- logbooks, contracts, reports, papers, samples, models
- Data material held in any electronic form[x].
- information relating to any private body which can be accessed by a public authority[xi]
- But doesn’t include the information which Is expired record notes[xii]
- Further the information can be supplied only in forms available[xiii]
The term “Public Authority” is defined under sec. 2(h). The said section has great correspondence with Art. 12 of Indian Constitution which defines “state” and in many cases, the courts have adopted Art. 12 to give an effect to the provisions under RTI act, 2005[xiv]. Such interpretation is done to promote the intention and purpose of legislature.
Chapter 2 lays down the liability and obligations of Public Authorities under this act. Chapter 3 confers about Central Information Commission which is primary executive authority under RTI. The chapter defines the Jurisdiction, limitations and composition of CIC. Chapter 4 lays the provision on State Information commission; its jurisdiction, composition and other administrative clauses. Chapter 5 deals with the duties, powers of Information commission and penalties. U/s 18 the commission has an obligation to receive & dispose appeals from the persons where:
- PIO has not been appointed;
- not publishing certain information;
- refused to give information;
- no response with in specified time limits;
- One feels the fee charged is unreasonable;
- the information given is incomplete or false or misleading;
- Any other matter relating to obtaining information under this law[xv].
Section 19 lays down the limitation period for 1st and 2nd appeal that is within 30 days of application and within 90 days respectively. Section 20 speaks about penalty which can be imposed daily as 250 INR or maximum till 25,000 INR. Chapter 6 deals with miscellaneous provisions i.e. Protection of actions taken in good faith, Overriding Effect of the act, bar of Jurisdiction of courts, exception to 22 Intelligence and Security organizations, provisions regarding monitoring and recording, governments power to make rule, power of appropriate authority to make rules and power to remove difficulties.
Analysis of RTI Act
The RTI act, 2005 is considered as one of the leading welfare oriented law enacted after independence. The act provides the modus operandi to acquire information from public authorities regarding the functioning of government. As any other law, RTI Act lays down certain obligation, liabilities, authorities, rights, limitations and consequences for the act which are forbidden under the said enactment. However, the RTI Act is an extremely delicate tool and must be exercised with utmost discretion. This part of paper deals with core concepts of RTI; its scope and coverage, constrains and issues and its legal implication.
2.1. Scope and Coverage
RTI fundamentally covers all “public agencies” except those which are expressly excluded in the statue itself[xvi]. It’s noteworthy that the Act that intelligence and security organizations are exempted from any obligation under this Act. However, it is laid down that in case the demand for information pertains to allegations of corruption and human rights violations, the Act shall apply even to such institutions. For the purpose of safeguarding the Act from the possibilities of misuse of the provisions under the law, exemptions are made from seeking information under Sec. 8 which exempts from disclosure certain information and contents as stated in Sub-clauses (a) to (j) thereof. Sub-clause (b) exempts information, which is expressly forbidden by any court of law or tribunal or the dispute of which may constitute contempt of court. Sub-clause (g) exempts 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 or security purpose. Sub-clause (h) exempts information, which could impede the process of investigation or apprehension or prosecution of offenders.
The Act provides access to existing information only. This is clear from a combined reading of sec. 3 and the definitions of `information’ and `right to information’ under clauses (f) and (j) of section 2 of the Act. If a public authority has any information in the form of data or analyzed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in section 8 of the Act but where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non-available information and then furnish it to an applicant. A public authority is also not required to produce information which require drawing of inferences and/or making of assumptions. It is also not required to provide `advice’ or `opinion’ to an applicant, nor required to obtain and furnish any `opinion’ or `advice’ to an applicant. The reference to `opinion’ or `advice’ in the definition of `information’ in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provided advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act[xvii]. Thus its coverage is only extended to the existing information.
2.2. Issues and Constrains
Although RTI Act has been enacted to empowered citizens to seek information from Public Authorities, thus making the Government and its functionaries more accountable and responsible. However, there are certain loopholes; misuse and procedural and technical issues. RTI Act is a great instrument to learn about governmental functions but sometimes is mealy used for causing unreasonable fuss and harassment. In CBSE vs. Aditya Bandopadhyay[xviii] , SC observed:
“…Indiscriminate and impractical demands or directions under the RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counterproductive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty…”
The same principle was again propounded in Shalin Sahni v. Sanjeev Kumar and Ors[xix], where Hon’ble Delhi High Court observed:
“…This Court is also of the view that misuse of the RTI Act has to be appropriately dealt w[xx]ith, otherwise the public would lose faith and confidence in this “sunshine Act”. A beneficent Statute, when made a tool for mischief and abuse must be checked in accordance with law. A copy of this order is directed to be sent by the Registry to Defense and Law Ministry, so that they may examine the aspect of misuse of this Act, which confers very important and valuable rights upon a citizen…”
Further in R.C Jain v. DTC[xxi], CIC dealt with harassing and repetitive application stating certain lacunas in RTI Act in technical aspects such as: Repetitive uses of RTI, Placing RTI abusers information in public domain, and no procedural bar regarding re-petition no legal provision to penalize the abuser et cetera.
Role of RTI for Good Governance
RTI Act, 2005 is enacted for five primary objectives:
- Greater Transparency in functioning of public authorities.
- Improvement in accountability and performance of the Government.
- Promotion of partnership between citizens and the Government in decision making process; and
- Reduction in corruption in the Government departments.
The same is apparently seen in the preamble of the said Statue:
An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority.
3.1. RTI and Good Governance
‘Right to Information’ (RTI) refers to the right of every citizen to access information held by or under the control of public authorities. Information is important for good governance as it reflects Government activities. It is said that information is the mandatory for democracy. As it is rightly held by Gerard LaForest J. in Dagg vs. Canada[xxii] that:
“…The overarching purpose of access to information legislation … is to facilitate democracy. It does so in two related ways. It helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry…”
Good governance basically implies eight qualities; participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive and follows the rule of law[xxiii]. RTI Act, 2005 is enacted by keeping these entire objectives in consideration. Along with transparency, RTI also act as an anti-corruption law. A statutory right to information would be in many ways the most spectacular reform in public administration in India in the last 50 years. This is because it would make sure that every citizen can enforce his right to question, examine, audit, review and assess government acts and decisions, to ensure that these are consistent with the principles of public interest, probity and justice. It would promote clarity, transparency and accountability in administration, by making government more open to public scrutiny. The right to information is expected to magnify the standards of decision making by public authorities, in both policy and administrative matters, by removing unnecessary secrecy surrounding the decision making process. It would enable groups and individuals to be kept informed about the functioning of the decision making process as it affects them, and to know the kinds of merits that are to be applied by government agencies in making these decisions[xxiv].
3.2. RTI in Modern day Politics
In a recent verdict[xxv] CIC held that political partied do come under the ambit of RTI as they fall under the definition of “Public Authorities”. Aggrieved by this verdict, parliament introduced an amended bill stating that it covers the lacunas which previous act failed to rectify. Considering the motive of legislature which admits to the need of an informed public and to mitigate corruption and to hold government accountable for its action it is must to see that RTI is for better awareness. However, the new bill simply excludes political parties form any liability to answer. As we live in democratic republic which bestows us with universal adult suffrage, it is must that citizens must be completely aware of the parties they vote for.
Right to information Act, 2005 has no doubt mitigated the level of corruption [xxvi](Sweden was 1st to adopt such legislation and as a result it ranked among top 5 countries with least corruption since last 10 years) as it encourages more transparency and accountability from governmental organizations and agencies but also gave a legitimate effect to Right to Information enshrined under Art 19(1) of Indian Constitution. The trend in improvement in delivery of services, due to the perceived good governance, provides sufficient indication for alleviation of poverty and liquidation of illiteracy in a much shorter duration than envisaged for the realization of Millennium Development Goals (MDGs).
Meanwhile, it’s not always feasible for citizens to run to authorities for enforcement of their right to information. The role of the Information Commission has to go beyond the Hearing of the appeals. As per the Act, they are expected to issue orders/directions to the Public Authorities to carry out their duties as per the mandate of the Act. However till the time 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 to public authorities.
Edited by Kanchi Kaushik
[i] Art 14, The Constitution of India, 1949
[ii] Art 19 (1) (a), The Constitution of India, 1949
[iii] Art 21, The Constitution of India, 1949
[iv] Right to Information: India, Commonwealth Human Rights Initiative
Available at http://www.humanrightsinitiative.org/programs/ai/rti/india/history.htm accessed on 16/08/2015.
[v] Brief History of RTI, National Campaign of Peoples’ Right to Information.
Available http://righttoinformation.info/about-us/brief-history-demand-for-the-right-to-information/ accessed on 19/08/2015.
[vi] Article 19:
- Everyone shall have the right to hold opinions without interference.
- Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regard less of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
- The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
Accessed on 16/08/2015.
[vii] AIR 1988 Raj 2
[viii] (1985) 1 SCC 641
[ix] AIR 1975 SC 865
[x] § 2 (f), RTI Act, 2005.
[xi] Jarnail Singh vs. Registrar, Cooperative Societies Delhi (Complaint No.CIC/WB/C/2006/00302)
[xii] Gurbachan Singh vs. Lt. General, Army Headquarters (CIC/AT/2006/20, dated 23/3/2006)
[xiii] Sarabjit Roy vs. Delhi Development Authority (10/01/2005-CIC, dated 25/2/2006)
[xiv] (2001) 6 SCC 477
[xv] § 18. RTI Act, 2005
[xvi] § 24 of RTI Act, 2005
[xvii] S.Vijayalakshmi vs Union Of India( AIR 1998 SC 2961)
[xviii] (2011) 8 SCC 497
[xix] W.P.(C) 845/2014
[xxi] Order No.CIC/AD/A/2013/001326-SA
[xxii]  2 S.C.R. 403
[xxiii] Historical Perspective Available on:
http://www.img.kerala.gov.in/docs/rti/rti-history.pdf accessed on 19/08/2015.
[xxiv] Supra note 4, Page 5.
[xxv] File No. CIC/SM/C/2011/000838
[xxvi] CORRUPTION PERCEPTIONS INDEX 2014: RESULTS, Available at:
https://www.transparency.org/cpi2014/results accessed on 20/08/2015.