(Sample Material) IAS Online Coaching : Polity - Right to Information

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Subject: Polity

Topic: Right to Information

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Historical background of the RTI Act in India

  The Supreme Court in the case of Raj Narain vs. State of UP (1976) observed that people cannot speak or express themselves unless they have information on government affairs. That is, the freedom of speech and expression given in Art 19 (1) (a) can not be effectively exercised unless the right to information is made available to citizens. Therefore, right to information is embedded in article. Secondly, in the same case, Supreme Court further said that India is a democracy. People are the masters. Therefore, the masters have a right to know how the government which is their servant is functioning. Thirdly, the apex court in the same verdict said that all citizens pay taxes and therefore have a right to know how their money was being spent. The Supreme Court ruled that the above principles translate to making Right to information a Fundamental Right — an inferred right In the S. P. Gupta vs. Union of India (1982), popularly known as First Judges case, the apex court liberally interpreted Art. 19 (1) (a) to include right to information.

In a democracy, RTI is important as it is an empowerment tool to make the citizens active participants in the political process. It renders the system of governance transparent (that is, it shows if procedures are being followed or not); accountable and citizen-friendly It helps reduce corruption and target public expenditure better.
The right to information in India has the following history

• It began with the Mazdoor Kisan Shakti Sangathan (MKSS) movement to bring in transparency in village accounts by making demand for minimum wages in rural India. They wanted information about who was employed and how much was paid to him in the government employment- generation programmes. MKSS demanded official information recorded in government files.
• In 1993, a draft RTI law was proposed by the Consumer Education and Research Council, Ahmedabad (CERC)
• In 1996, 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. The draft model law was later updated and renamed the PCI-NIRD (Press Council of India- national Institute of Rural Development) Freedom of Information Bill 1997.
• A working group under the chairmanship of Mr. H D Shourie was set up by the Central Government and given the mandate to prepare draft legislation on freedom of information. The Shourie Committee’s Report and draft law were published in 1997 Shourie Committee draft law became the basis for the Freedom of Information Bill 2000.
• The 2000 FoI Bill was sent to the Parliamentary Standing Committee on Home Affairs, The Freedom of Information Bill 2000 was passed by Parliament in 2002 and received Presidential asset in January 2003, as the Freedom of Information Act 2002. Since it was not notified, it never - actually came into operation. In May 2004 a new UPA Government came into power at the Centre.
• UPA Government’s Common Minimum Programme promised that: “The Right to Information Act will be made more progressive participatory and meaningful”. The National Advisory Council (NAC) was set up to oversee implementation of the Government’s Common Minimum Programme: public interest litigation (PIL) case was heard by the Supreme Court in 2004. The Supreme Court’s Order prodded the Government to make the RTI law.
• RTI Bill was passed in the Parliament in May 2005 and assented to in June 2005 by President APJ Abdul Kalam. With presidential assent, the Central Government and State Governments were given 120 days to implement the provisions of the Bill in its entirety. The Act formally came into force on 12 October 2005

By the time the national RTI came into force, nine stated and UTs already made similar laws: Tamil Nadu (1997), Goa (l997), Rajasthan (2000), Karnataka (2000). Delhi (2001), Maharashtra (2002), Madhya Pradesh (2003), Assam (2002) and Jammu and Kashmir (2004).

Union Government, State Governments and the RTI

Right to Information is not  mentioned in any of the 3 Lists in the Seventh Schedule (Article 246) of the Constitution. Thus, it falls in the ‘residuary powers’ category and so belong to the Union Government.

However, since RTI applies to the entire governance and both the Governments are directly involved in it, State Governments are also allowed to legislate on it.

The Union law and the state laws co exist with the prevalence of the ‘doctrine of federal supremacy’ as mentioned in Art.254. Needless to say, before the doctrine of federal supremacy is applied, the doctrine of harmonious construction should be applied and an effort must be made to reconcile the two laws.

RTI  Act  2005

  The Act extends to the whole of India except the State of Jammu and Kashmir. Following are the important details:

The meaning of right to information is: the right to

1. Inspect works, documents, records.
2. Take notes, extracts or certified copies old documents or records.
3. Take certified samples of material.
4. Obtain information in form of printouts, diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts.

The definition of information is : 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 information relating to any private body which can be accessed by a public authority under any other law other of the time being in force but does not include “file noting.”

Reasons for seeking information are not required to be given. Only a citizen of India can request for information.

Under RTI law, “public authority” means the following: any authority or body set up under the Constitution or Parliamentary law or law made by the State Legislature or Government order or anybody owned, controlled or substantially financed by the government or non-Government organization substantially financed directly or indirectly by the Government. This definition does not include private bodies which perform public services or which receive funds or concession from the Government. That is private bodies are not within the Act’s scope directly. However, information that can be accessed, regarding a private body, under any other law in force by a public authority can also be requested for. Central Information Commission ruled that privatized  public utility companies continue to be within the RTI Act their privatization notwithstanding.

The following are excluded from the purview:

Central Intelligence and Security agencies specified in the Second Schedule like IB, RAW, Directorate of Revenue Intelligence, Central Economic Intelligence Bureau, Directorate of Enforcement, Narcotics Control Bureau, Aviation Research Center, Special Frontier Force, BSF, CRPF, ITBP, CISF. NSG, Assam Rifles, Special Service Bureau, Special branch (CID). Andaman and Nicobar- The crime Branch-CID-CB, Dadra and Nagar Haveli and Special Branch, Lakshadweep Police.

• Agencies specified by the State Governments through a Notification will also he excluded.

It is only a conditional and partial exclusion. The above organizations have an obligation to provide information pertaining to allegations of corruption and human rights violations. Further, information relating to allegations of human rights valuations could be given but only with the approval of the Central or State Information Commission, as the case may be.

The following is the information that is not open to disclosure:

• Information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence
• Information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court:
• Information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;
• Information including commercial confidence, trade secrets or intellectual properly, the disclosure of which would harm the competitive position of third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
• Information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the - disclosure of such information;
  (Fiduciary relationship involves a profession in which the nature of the services provided causes the recipient of those-services to place a substantial degree of trust and confidence in the integrity and specialized knowledge of the practitioner. For example law, insurance, medicine, financial services etc).
• Information received in confidence from foreign Government:
• Information, the disclosure of which would endanger the life or physical safety of any person or identify-the source of information or assistance given in confidence for law enforcement or security purposes:
• Information which would impede the process of investigation or apprehension or prosecution of offender; cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers;
• In formation which relates to personal in formation the disclosure of which has no relationship to any public activity or interest or which would cause unwarranted invasion of the privacy of the individual;

However a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.

Only relevant and un-exempt information needs to be provided that is Partial disclosure is allowed

A third party means a person other than the citizen making a request for information and includes a public authority. Third parties have a right to be heard in respect of applications and appeals dealing with information submitted by them to the government in confidence.

PIOs are officers designated by the public authorities in all offices to provide information to the citizens under the Act. Duties of the PIO are the following:

• Deals with requests for information
• If the information requested for is held by or its subject matter is closely connected with the function of another public authority the PIO shall transfer, within 5 days, the request to that other public authority and inform the applicant immediately.
• PIO shall, within 30 days of the receipt of the request either provide the information on payment of such fee or reject the request for any of the reasons specified in the Act.
• Where the information requested for concerns the life or liberty of person it shall be provided within forty-eight hours of the receipt of the request.
• If the PIO fails to give decision on the request within the period specified he shall be deemed to have refused the request.
• Where a request has been rejected, the PIO shall provide the reasons for such rejection; communicate the period within which an appeal against such rejection may be preferred and the particulars of the Appellate Authority.

If information sought has been supplied by third party or is treated as confidential by that third party, the PIO shall take its representation into consideration. Third party must be given a chance to make a representation before the PIO.

Every PIO will be liable for The of Rs. 250 per day up to a maximum of Rs.25,000/-, for-

• Not accepting an application;
• Delaying information release without reasonable cause;
• Malafidely denying information;
• Knowingly giving incomplete, incorrect, misleading information:
• Destroying information that has been requested and
• Obstructing furnishing of information in any manner.

The Information Commission (IC) at the Centre and the State levels will have the power to impose this penalty. The Information Commission can also recommend disciplinary action for violation of the law against an erring PLO.

Information should be provided by the PIO within a time limit as given below

• 30 days from the date of application
• 48 hours for information concerning the life and liberty of person
• 5 days shall be added to the above response time, in case the application for information is given to Assistant Public Information Officer.
• If the interests of a third party are involved then time limit will be 40 days (maximum period + time given to the party to make representation).

Failure to provide information within the specified period is a deemed refusal.

• If it is covered by exemptions from disclosure
• If it infringes copyright of any person other than the State.

Fees

• Application fees to be prescribed which must be reasonable.
• No fees will be charged from people living below the poverty line
• Applicant must be provided information free of cost if the PIO fails to comply with prescribed time limit.

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