Be Aware of Your "Right to Information" (Right to Information Act, 2005 of Ind

[Malcolm Close]

Right to Information viz. RTI is a part of fundamental rights under
Article 19(1) of the Constitution, which says that every citizen has
freedom of speech and expression. The people cannot express themselves
unless they know what's happening in the systems that govern them.
Every citizen, being the tax payee has the authority as the masters in
a democratic system to know how the government bodies and public
authorities, meant to serve them, are functioning.
But it is quite unfortunate that the Government authorities are still
hesitant to part with the information under their control. It is in
this context that the recently passed 'Right to Information Act'
becomes very significant. Right to Information Act, 2005 is a public
drafted legislation to set out a mechanism to avail information in the
hands of Public authorities and Government Officials. It does not
confer any new right, but simply lays down the procedures on how to
apply for information under the control of public authorities, and how
to avail it.
The preamble of Right to Information Act, 2005 says - "Democracy
requires an informed citizenry and transparency of information which
are vital to its functioning and also to contain corruption and to
hold Governments and their instrumentalities accountable to the
governed". As sounded by its preamble, the Act envisages a corruption-
free and transparent governance and polity. The Act covers not only
the Executive, but the judiciary and the legislature also. It extends
to the entire gamut of central, state and local government systems
including those bodies owned, controlled or substantially financed by
government and also those Non-government organizations substantially
financed, directly or indirectly by funds provided by government.
Information relating to any private body that can be accessed by a
public authority also comes under the ambit of RTI Act, 2005.
The RTI Act defines "Information" as any material in any form,
including records, documents, memos, e-mails, opinions, advice, press
releases, circulars, orders, logbooks, contracts, reports, papers,
samples, models, and data material held in any electronic form. It is
interesting to learn that "Right to Information" also covers
Inspection of work, documents, records; taking notes, extracts, or
certified copies of documents or records; and taking certified samples
of material. It implies that any citizen can exercise his right to
invigilate the transparency and accountability of governance or even
insist that a particular civil work be performed in his presence. Any
citizen can avail a copy of every bill settled from funds controlled
by any of the public authorities and even the statement of accounts of
every activity/project/event funded or organized by the Public
Authority. Public authority is also obliged to provide reasons for its
administrative or quasi-judicial decisions to affected persons, and
publish all relevant facts while formulating important decisions
affecting the public. Another interesting aspect of RTI Act is that
there is "Penalty for forfeiture of information".
Section 4(2) of the Act says that "it shall be the constant endeavor
of every public authority to provide as much information suo moto to
the public at regular intervals through various means of
communication, including internet, so that the public shall have
minimum resort to the use of this Act to obtain information". So the
dream is the change of mindset from maintenance of Official
Information in Secret to Maximum Voluntary disclosure of information.
Having told the philosophy of Right to Information, it is imperative
that the ways and means of availing the information shall be set. So
the RTI Act directs that 'Every Public Authority shall designate as
many Public Information Officers (PIO) in all the administrative units
or Offices under it as may be necessary to provide information to
persons requesting information". PIO is also required to help any
person making the request orally to reduce the same in writing. The
Act further stipulates that "every public authority shall designate an
Officer at each sub-divisional or other sub-district level as
Assistant Public Information Officer (APIO) to receive the
applications for information or appeals under this RTI Act for
forwarding the same forthwith to the respective PIO or 1st Appellate
Authority or Information Commission. The Burden of proving that PIO/
APIO has acted reasonably and diligently in discharge of his functions
or obligations under RTI Act will be on the respective PIO/APIO.
PIO may seek assistance of any other Officer as he or she considers it
necessary for the proper discharge of his or her duties. Section 5(5)
of RTI Act says that such Officer will be deemed as PIO for the
purposes of providing the information requested. All the Burden
including liability for Penalty on defiance of information will stand
transferred to the Deemed PIO, if PIO transfers the request to such
Officer with a note indicating the same
The Request for information has to be submitted to PIO or APIO in
writing or through electronic means in English, Hindi or Official
language of the area with a nominal Fee of Rs. 10/-. (There is no fee
for persons Below Poverty Line). PIO can demand additional sum of Rs.
2 for each page created or copied for giving it as information to the
requestor or Rs. 50/- per diskette/floppy if the same is given in
electronic form. Incase if Inspection of work is requested no fee is
chargeable for the first hour, but Rs. 5/- each for every subsequent
hours.
The Act mandates that the PIO shall provide the requested information
as expeditiously as possible, but in no way later than 30 days.
However the public authorities can take 5 days more to part with the
information sought, if such request is made through APIO. But in any
case where the requested information involves the question of "life or
liberty", such information should be given within 48 hours.
Section 6(2) of RTI Act makes it clear that a person requesting
information shall not be required to give any reason for requesting
the information or any other personal details. However this freedom
implies that the citizens shall show a greater sense of responsibility
on the part of the use of information in the media and elsewhere.
(Dissemination shall be in Public Interest.). In view of the national
security, Intelligence and Security Organisations such as IB, RAW of
Cabinet Secretariat, BSF, SPG, CISF, DRDO, Special Branch CID of
Andaman & Nicobar, Directorate of Revenue Intelligence, Narcotics
Control Bureau etc. have been exempted from stringent provisions of
the RTI Act. But it is very interesting to note that the information
pertaining to the allegations of corruption and human rights
violations are not exempt from disclosure even in the case of those
organizations. That conveys the very intention of this Legislation.
Now comes the real question - What is the remedy if the requested
information is denied? RTI Act establishes an Independent and Non-
judicial appellate mechanism in which a body called "Information
Commission" (Central Information Commission and State information
Commissions) has been set as the apex body. Further Section 23 of the
Act asserts that 'No court shall entertain any suit, application or
other proceedings in respect of any order made under this Act and no
such order shall be called in question otherwise than by way of an
appeal under this Act'. But this provision cannot be interpreted as a
complete bar on jurisdiction of courts, since the options of Writ
petitions and Special Leave petitions always subsists. Information
Commission also would entertain the complaints from any one who is
aggrieved on account of any matter relating to obtaining information
under this law including the cases where the public authority refused
to accept the RTI Request.
In order to give an opportunity for the 'public authority' to review
its on decision as to the denial of Information requested from PIO,
the Act requisitions that an Officer senior in rank to PIO be
appointed as the First Appellate Authority, to whom the aggrieved
citizen can appeal within thirty days of expiry of time limits within
which he/she should have received the information requested. The First
Appellate Authority (AA) shall ordinarily dispose of the appeal within
thirty days or latest by the forty-fifth day with reasons for availing
such prolonged period. An appeal to the respective Central or State
Information Commission may be made within a period of 90 days from the
date of decision of the Appellate Authority or from the date of expiry
of time limit for the disposal of the first appeal made before the
first Appellate Authority.
Information Commission may, at the time of deciding any complaint or
appeal, impose upon PIO, a fine of Rs. 250 per day, up to a maximum of
Rs. 25,000/-, if he/she has without any reasonable ground: refused to
accept an application for information; or delayed furnishing of
information; or malafidely denied information; or knowingly given
incomplete, incorrect, or misleading information; or destroyed
information that has been requested; or obstructed furnishing of
information in any manner. So the Act has teeth; it can not only bark
but bite also. But of course the PIO will be given a reasonable
opportunity of being heard before any penalty is imposed on him. The
RTI Act extends its arm further to declare that if PIO persistently
violates his obligations under RTI Act, Information Commission shall
recommend for disciplinary action against such PIO under the service
rules applicable to him.
Though the Right to Information Act moots complete transparency in the
governmental system, it is also equally important that the strategic
information pertaining to the State and any personal information
devoid of larger public interest be exempted from disclosure.
Accordingly Section 8 (1) of the RTI Act bars the disclosure of the
following information.
a) 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;
b) 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;
c) Information, the disclosure of which would cause a breach of
privilege of Parliament or the State Legislature;
d) Information including commercial confidence, trade secrets or
intellectual property, the disclosure of which would harm the
competitive position of a third party, (unless larger public interest
warrants the disclosure of such information);
e) Information available to a person in his fiduciary relationship,
(unless the larger public interest warrants the disclosure of such
information);
f) Information received in confidence from foreign Government;
g) 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;
h) Information which would impede the process of investigation or
apprehension or prosecution of offenders;
i) Cabinet papers including records of deliberations of the Council of
Ministers, Secretaries and other officers. (However, after the
decision is taken and the matter is complete or over, the decision,
the reasons thereof and the material leading to the decision shall be
made public);
j) Information which relates to personal information 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
unless larger public interest demands its disclosure
Further, Section 9 of the Act insists that any information that
infringes the copyright of any person other than the State should not
be disclosed. While Section 8 and Section 9 prevents the disclosure of
the kind of information mentioned above, the Act maintains vide
Section 10(1) that 'access may be provided to that part of the record,
which is not exempted from disclosure, and which can reasonably be
severed from any part of that contains the 'exempt information'
You would also be delighted to learn about an important decision of
the Full Bench of Central Information Commission (Decision dated 23rd
April 2007), which declared that there is "No fiduciary relationship"
in respect of "Evaluated Answer Sheets", while maintaining accepting
that there existed "Fiduciary Relationship" between a) Lawyer and
Client; b) Doctor and Patient; c) Bank and Customer; d) Trustee and
Beneficiary; e) Organisation and Reporting Officer in respect of CR of
an Employee etc. Therefore the Information Commission directed that
the answer sheets should ordinarily be disclosed in all circumstances,
but subject to the scrutiny under S. 8 (1) and Section 9 of RTI Act.
The Commission stated further that the evaluated answer sheets could
be disclosed withholding the name of the Examiner, in view of the fact
that the disclosure of identity of the examiners might pose a danger
to the life and safety of the Examiner. The decision also implies that
marks given by each of the Interview board members are givable without
revealing their identity.
So RTI Act, 2005 is the most pretty and powerful legislation that the
democratic India gifted to its citizens. Its Supremacy is being
reiterated in Section 22 of the Act, which states that 'The Provisions
of RTI Act will be having the overriding effect on any contradicting
provisions in Official Secret Act, 1923, and any other law for the
time being in force or any other instrument having effect by virtue of
any law other than this Act"
Let me add a few sagas of successful RTI ventures as an anecdote here.
The first story is from a north Indian village. Mazloom Nadaf, a 70-
year old rickshaw puller had no scope for his long-awaited dream until
he found light in RTI. The story reads as follows - Nadaf did not get
any response for the first five years on his application on Indira
Awas Yojana - India's National housing Scheme. Five years later,
authorities demanded Rs. 5000/- from him to process the application.
But he refused to give the money and, instead approached the legal aid
centre of an NGO working in Madhubani district and sought their
assistance in drafting and filing an RTI application. In his RTI
request, Mazloom asked for the daily progress report made on his
application to avail of the Indira Awas Yojana. The application was
filed with the Circle Officer for his block who forwarded the same to
the Block Development Officer (BDO). The BDO on receiving the RTI
application called Mazloom and treated him like a VIP and with a lot
of respect handed over a Cheque of Rs. 15,000 (first installment
payment) under the Indira Awas Yojana. He was also promised that he
would get the subsequent installments in time.
Right to Information Act was also effectively used by residents of a
village in Rajasthan's Bikaner district to put an end to the practice
of selling grains from ration shops in the black market. Mr. Revat
Ram, Secretary, Jagruk Yuvak Manch of the areas was Instrumental in
this achievement. Revat Ram and his friends used the RTI Act to get
all records of their ration shop in Himmatsar village and exposed how
grains meant for the poor were being black-marketed at a ration shop
in Bikaner. After the move, the villagers got the dealer removed.
Besides losing dealership, the ration shopkeeper was also forced to
pay poor families in the village over Rupees Four Lakhs, the cash
equivalent of the grains he had sold illegally.
"They threatened us and also offered money. But we refused, because we
wanted to ensure that people in our village get the grains they
deserve from the government. And we did not get scared in fighting for
the rights of our people" - Says Mr. Revat.
The message of RTI Act is very clear - Uproot corruption and make the
governmental system totally transparent and accountable to the people.
So Government Employee is no longer a Government Servant. He/She has
to transform to a Public Servant in Letter and Spirit.
To End with, I wish to quote the father of our nation -"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".
Is it that the Independent India needed 58 years to realize what
Mahatmaji told?