Right to Information Act: Mandate, Features and challenges

Please Share with maximum friends to support the Initiative.





Context: Chief Justice of India said the unbridled use of the Right to Information (RTI) Act had created a sense of “paralysis and fear” in the government, on the another hand The Right to Information Act has a crucial role in fostering a more informed citizenry and an accountable government.

Relevance:
Prelims: Current events of national and international importance.
Mains: GS II And IV-

  • Important aspects of governance, transparency and accountability, e-governance- applications, models, successes, limitations, and potential; citizens charters, transparency & accountability and institutional and other measures.
  • Information sharing and transparency in government, Right to Information, Codes of Ethics, Codes of Conduct, Citizen's Charters, Work culture, Quality of service delivery, Utilization of public funds, challenges of corruption. Case Studies on the above issues.

Contents:

  1. Historical Background
  2. Genesis of RTI
  3. Right to information act 2005
  4. Features of the Act
  5. Different SC Judgments which evolved the spirit and letter of RTI act
  6. CJI Office under RTI, 2019
  7. Importance
  8. RTI vs Legislations for Non Disclosure of Information
  9. RTI vs Right to Privacy
  10. RTI and Political Parties
  11. Challenges
  12. What are the changes made in the RTI (Amendment) Act, 2019?
  13. Way forward
  14. Conclusion
  15. Use of RTI act in Solving case studies of GS IV Paper

Historical Background:

  • The right to information gained power when the Universal Declaration of Human Rights was adopted in 1948 providing everyone the right to seek, receive, information and ideas through any media and regardless of frontiers.
  • The International Covenant on Civil and Political rights 1966 states that everyone shall have the right to freedom of expression, the freedom to seek and impart information and ideas of all kinds.
  • According to Thomas Jefferson “Information is the currency of democracy,” and critical to the emergence and development of a vibrant civil society. However, with a view to set out a practical regime for the citizens to secure information as a matter of right, the Indian Parliament enacted the Right to Information Act, 2005.

Genesis of RTI:

  • 1975, in the State of Uttar Pradesh vs Raj Narain “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. Their 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.” 
  • It observed, “Voters’ (little man-citizens’) right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy. 
  • Genesis of RTI law started in 1986, through judgment of Supreme Court in Mr. Kulwal v/s Jaipur Municipal Corporation case, in which it directed that freedom of speech and expression provided under Article 19 of the Constitution clearly implies Right to Information, as without information the freedom of speech and expression cannot be fully used by the citizens.

 

Right to information act 2005:

Objectives of the Act:

  • To empower the citizens
  • To promote transparency and accountability
  • To contain corruption and
  • To enhance people’s participation in the democratic process.

Reasons for Adoption of Information Act:

  • The factors responsible for the adoption of information act are as follows-
  • Corruption and scandals
  • International pressure and activism
  • Modernization and the information society

Features of the Act:

  • Section 1(2) :
    • It extends to the whole of India.
  • Section 2(h):
    • RTI applies to “Public authority” and it means any authority or body or institution of self-government established or constituted—
      • by or under the Constitution;
      • by any other law made by Parliament/State Legislature.
      • by notification issued or order made by the appropriate Government, and includes any—
        • body owned, controlled or substantially financed;
        • non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government.
  • Section- 2 (f):
    • “Information” means 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 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.
  • Section- 2(j):
    • “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 a computer or in any other device.
  • Section 4 :
    • Section 4 of the RTI Act requires suo motu disclosure of information by each public authority. However, such disclosures have remained less than satisfactory.

 

  • Section 6(2):
    • RTI Act explicitly rejects the need for locus standi in Section 6(2) — “an applicant making a request for information shall not be required to give any reason for requesting the information…”. 
  • Section 8 (1):
    • It mentions exemptions against furnishing information under RTI Act.
  • Section 8 (2):
    • It provides for disclosure of information exempted under the Official Secrets Act, 1923 if larger public interest is served.
  • Section8(12):
    • The Act also provides for appointment of Information Commissioners at Central and State level. Public authorities have designated some of its officers as Public Information Officer. They are responsible to give information to a person who seeks information under the RTI Act.
  • Time period, Section 7(1):
    • In normal course, information to an applicant is to be supplied within 30 days from the receipt of application by the public authority.
    • If information sought concerns the life or liberty of a person, it shall be supplied within 48 hours.
    • In case the application is sent through the Assistant Public Information Officer or it is sent to a wrong public authority, five days shall be added to the period of thirty days or 48 hours, as the case may be.

Different SC Judgments which evolved the spirit and letter of RTI act:

”Bhagat Singh vs CIC in 2007:

  • An applicant 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.
  • “The information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person ”Bhagat Singh vs CIC in 2007, then Delhi High Court Justice Ravindra Bhat (now a Supreme Court judge) observed: “Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. 
  • Section 8 being a restriction on this fundamental right, must, therefore, be strictly construed. It should not be interpreted in a manner as to shadow the very right itself.”

Jayantilal N Mistry vs Reserve Bank of India:

  • Public Information Officers under the guise of one of the exceptions given under Section 8 of the RTI Act have evaded the general public from getting their hands on the rightful information that they are entitled to.
  • The ideal of ‘Government by the people’ makes it necessary that people have access to information on matters of public concern. 

DAV College Trust and Managin  vs Director of Public Instructions:

  • Declared that NGOs are not beyond the RTI Act.
  • This was based on an examination of the question whether NGOs are substantially financed by the government.
  • Because of this observation, the spotlight falls of several NGOs that have been getting public money and were not covered under the RTI.

Central Board of Secondary Education (CBSE) & Anr vs Aditya Bandhopadhyay and Others in 2011:

  • Nearly 60-70 lakh RTI applications are filed in India every year, and activists have questioned whether addressing these would require 75% of the time of government staff. 
  • Several public authorities have used this observation while denying information, ignoring the fact in the same case, the Supreme Court had ordered disclosure of the requisite information.
  • SC: “The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties”

Girish Ramchandra Deshpande vs Central Information Commission & Ors in October 2012:

  • The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression ‘personal information’ the disclosure of which has no relationship to any public activity or public interest.
  • if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right.

CJI Office under RTI, 2019:

  • The apex court had recently stated that the office of the Chief Justice of India (CJI) is a public authority and that it will come under the ambit of the RTI Act.
  • This ruling was given by the 5-judge Constitution Bench that was headed by the Chief Justice Ranjan Gogoi.
  • The Supreme Court is a “public authority” and the office of the CJI is part of this institution.
  • Thus, if the top court is a public authority, so is the office of the CJI.
  • The judiciary cannot function in total isolation as the judges hold the constitutional post.
  • Nonetheless, Right to Privacy is an important aspect and has to be balanced with transparency while deciding to give out information from the office of the CJI.
  • RTI cannot be used as a tool for surveillance and that judicial independence should be kept in mind while also ensuring transparency.
  • Collegium:
    • On the issue related to the judges’ appointment, the apex court held that only the names of the judges recommended by the Collegium for appointment can be disclosed and not the reason.
  • Consequences:
    • The public authority under the RTI Act, 2005 includes the body constituted by or under the Indian Constitution.
    • The office of the CJI will now accommodate RTI applications.
    • This ruling is an example for other bodies like the political parties, trusts and public-private partnerships that are resisting the categorization as public authority under this Act.
    • However, there have been instances when the offices the PM, the President and the others are denying information under the RTI Act by quoting the apex court’s separate observations.

Importance:

  • The RTI Act, 2005 did not create a new bureaucracy for implementing the law. Instead, it tasked and mandated officials in every office to change their attitude and duty from one of secrecy to one of sharing and openness.
  • It carefully and deliberately empowered the Information Commission to be the highest authority in the country with the mandate to order any office in the country to provide information as per the provisions of the Act. And it empowered the Commission to fine any official who did not follow the mandate.
  • The right to information has been seen as the key to strengthening participatory democracy and ushering in people-centered governance.
  • Access to information can empower the poor and the weaker sections of society to demand and get information about public policies and actions, thereby leading to their welfare.
  • It showed an early promise by exposing wrongdoings at high places, such as in the organization of the Commonwealth Games, and the allocation of 2G spectrum and coal blocks.
  • Right to information opens up government’s records to public scrutiny, thereby arming citizens with a vital tool to inform them about what the government does and how effectively, thus making the government more accountable.
  • Improves decision making by public authority by removing unnecessary secrecy.

 

RTI vs Legislations for Non Disclosure of Information:

  • Indian Evidence Act (Sections 123, 124, and 162):
    • It provides to hold the disclosure of documents.
    • Under these provisions, the head of the department may refuse to provide information on affairs of state and only swearing that it is a state secret will entitle not to disclose the information.
    • In a similar manner no public officer shall be compelled to disclose communications made to him in official confidence.
  • The Atomic Energy Act, 1912
    • It provides that it shall be an offense to disclose information restricted by the Central Government.
  • The Central Civil Services Act
    • It provides a government servant not to communicate or part with any official documents except in accordance with a general or special order of government.
  • The Official Secrets Act, 1923
    • It provides that any government official can mark a document as confidential so as to prevent its publication.

RTI vs Right to Privacy:

  • Conceptually, RTI and the right to privacy are both complementary as well as in conflict to each other.
  • While RTI increases access to information, the right to privacy protects it instead.
  • At the same time they both function, as citizen rights safeguarding liberty, against state’s overreach.
  • When the question of harmonising the contradicting rights arises, it should give justice to the larger public interest advance public morality.

RTI vs OSA(The Official Secrets Act, 1923):

  • The OSA was enacted in 1923 by the British to keep certain kinds of information confidential, including, but not always limited to, information involving the affairs of state, diplomacy, national security, espionage, and other state secrets.
  • Whenever there is a conflict between the two laws, the provisions of the RTI Act override those of the OSA.
  • Section 22 of the RTI Act states that its provisions will have effect notwithstanding anything that is inconsistent with them in the OSA.
  • Similarly, under Section 8(2) of the RTI Act, a public authority may allow access to information covered under the OSA, “if the public interest in disclosure outweighs the harm to the protected interest”.

RTI and Political Parties:

  • Why activists want political parties to be brought under RTI?
    • To contain corruption
    • Huge donations from corporates which lead to favouritism or crony capitalism
    • Illegal foreign contribution
    • The leader of the opposition is statutorily mandated to be part of the select committees to choose Chairperson for CIC, Lokpal, CBI Director, and CVC
    • Various members of the opposition are also part of various parliamentary committees
    • They enjoy multiple benefits like concessional office spaces, free airtime on DD & AIR from govt
  • Stand of Political Parties:
    • PP’s are not public authorities, hence cannot be brought under RTI Act.
    • Disclosed information can be misused.
    • Can disclose financial information under the IT Act.
  • This judgment OF DAV Case can have wide ramifications pertaining to the ambit of the RTI regime on national political parties.
    • In the D.A.V case, the apex court held that “substantial” means a large portion which can be both, direct or indirect.
    • It also held that it need not be a major portion or more than 50% as no straitjacket formula can be resorted to in this regard.
    • For example, if a portion of land in a city is given free of cost or a heavily subsidised rate to hospitals, educational institutions or any other bodies that are funded by the government, it can be qualified as substantial financing.
    • In 2013, the full bench of the CIC had held that all national parties come under ‘public authorities’ and were within the purview of the RTI Act.
    • Finally, in 2019, a Public Interest Litigation was filed in the SC seeking the declaration of political parties as ‘public authorities’ and this matter is now under sub judice.
    • Drawing the analogy between the apex court’s judgment on D.A.V and the political parties’ issue which is sub judice, it can be argued that national parties are ‘substantially’ funded by the Central Government.

Challenges:

  • Different types of information are sought which has no public interest and sometimes can be used to misuse the law and harass the public authorities. For example-
    • Asking for desperate and voluminous information. (SEE THE LAST PART FOR SOLUTIONS) 
    • To attain publicity by filing RTI.
    • RTI filed as a vindictive tool to harass or pressurize the public authority.
  • Because of the illiteracy and unawareness among the majority of the population in the country, the RTI cannot be exercised. (SEE THE LAST PART FOR SOLUTIONS) 
  • Though RTI’s aim is not to create a grievance redressal mechanism, the notices from Information Commissions often spur the public authorities to redress grievances.
  • Information commissioners do not have adequate authority to enforce the RTI Act.
  • In case of award of compensation to activist by public authority as ordered by commission, compliance cannot be secured.
  • Poor record-keeping practices.
  • Lack of adequate infrastructure and staff for running information commissions.
  • Dilution of supplementary laws like the whistleblower's protection Act.

 

What are the changes made in the RTI (Amendment) Act, 2019?

  • The term in office:
    • As per the RTI Act, 2005, the Chief Information Commissioner (CIC) (at the Central and state level) will hold office for a term of 5 years. The Amended Act removes this provision and states that the Union government will notify the term of office for the CIC and ICs
  • Salaries:
    • The RTI Act, 2005 states that the salary for the CIC and IC (at the Central level) will be equivalent to the salary paid to the Chief Election Commissioner and Election Commissioners respectively. The amended Act removes these provisions and states that the salaries, allowances and other terms and conditions of services of the Central and State CIC and ICs will be determined by the Central government.
  • Salary deduction:
    • The 2005 Act states that at the time of appointment of the CIC and ICs (at the Central and state levels) if they are receiving pensions or any other retirement benefits for the previous government services, their salary will be reduced by an amount equal to the pension. The 2019 amended Act removed this provision.

What are the arguments for the Amendment?

  • The Chief Election Commissioner and Election Commissioners have salaries of an SC judge.
  • This brings the CIC and ICs on par with the SC judges.
  • It is argued that the functions carried out by the Election Commission of India and Central and State Information Commissions are different.
  • Election Commission of India is a constitutional body, Central Information Commission and State Information Commissions are statutory bodies established under the RTI Act, 2005.
  • CIC has been given the status of the SC judge. However, CIC’s judgments can be challenged in High Courts.
  • These amendments are made to correct certain irregularities in the RTI Act, 2005.
  • It is also argued that these amendments can strengthen the overall RTI structure.

What are the arguments against the Amendment?

  • Threatens Federalism:
    • It empowers Centre to unilaterally decide the tenure, salary, allowances and other terms of service of Information Commissioners, both as the Centre and state levels.
    • This is intentionally assaulting the idea of federalism.
  • Reduces the power of Information Commission:
    • It is also diminishing the status of the CIC, ICs and the State CICs from that of the Supreme Court Judge and would reduce their ability to issue the directives to the senior government officials, thereby undermining the basic principle of the RTI.
    • These amendments could “kill the RTI Act” and is an “affront to federalism, good governance and ultimately, democracy”.
    • It would also make freedom of speech meaningless.
  • Independence under question:
    • The amendments would empower the Centre to decide the tenure, salary and allowance of the Information Commissioners both at the Centre and the state levels.
    • Independence of the Commission is vital for its flawless functioning and the amendments take away just that.
    • These amendments reduce the independence of the Commission and can only function like a Department of the Central government.
  • No public consultation:
    • The Amendment Bill was brought to the Parliament without prior consultation from the public.
    • This is a huge concern in a democratic country as it is against the public will.

Way forward:

  • RTI should be strengthened rather than be weakened in favour of the government.
  • It is, in fact, as per the SC’s judgment, the integral part of the right to free speech and expression under the Indian Constitution’s Article 19.
  • This Amended Act needs to be changed to bring about transparency and accountability of the government since this is the whole purpose of this Act in the first place.
  • All public authorities must digitize their records so that they are in the public domain and there is little need for the citizens to request information formally from the government.
  • Awareness must be made so that all individual citizens are alert about the government’s functioning and its impacts on their lives.
  • It is in the duty of citizens at large to safeguard democracy. Therefore, every one of them should participate in democratic activity for it to be safe and secure. Therefore all citizens must consistently use the RTI Act for the common good.

Conclusion:

  • The Right to Information Act was made to achieve social justice, transparency and to make accountable government but this act has not achieved its full objectives due to some impediments created due to systematic failures.
  • As observed by Delhi High Court that misuse of the RTI Act has to be appropriately dealt with; otherwise the public would lose faith and confidence in this “sunshine Act”.
  • It is well recognized that the right to information is necessary, but not sufficient, to improve governance. A lot more needs to be done to usher in accountability in governance, including protection of whistleblowers, decentralization of power and fusion of authority with accountability at all levels.
  • This law provides us a priceless opportunity to redesign the processes of governance, particularly at the grassroots level where the citizens’ interface is maximum.

Use of RTI act in Solving case studies of GS IV Paper:

The RTI Act features can be used to solve the case studies., Firstly by studying the relevant features and applying those features while solving the case studies. Some of the relevant features are mentioned according to the case studies point of view.

  • Section- 2(j)
    • It could be used for checking corruption and the use of faulty materials while construction.
  • Section 6(2)
    • It could be used to tackle when the PIO asks for a substantial reason for the information. The  Act explicitly rejects the need for locus standi in Section 6(2).
  • Section 8 (2):
    • It provides for disclosure of information exempted under the Official Secrets Act, 1923 if larger public interest is served. In normal course, information to an applicant is to be supplied within 30 days from the receipt of application by the public authority.
    • If information sought concerns the life or liberty of a person, it shall be supplied within 48 hours.
    • Similarly, under Section 8(2) of the RTI Act, a public authority may allow access to information covered under the OSA, “if the public interest in disclosure outweighs the harm to the protected interest”.
  • Section 7(3):
    • Asking for desperate and voluminous information, In this case, PIO could use Section 7(3) To increase the fee for information and deter false cases. and also the same for the case when RTI filed as a vindictive tool to harass or pressurize the public authority.
  • Section 5(3) :
    • Because of the illiteracy and unawareness among the majority of the population in the country, the RTI cannot be exercised. In this case, the section 5(3) allows the PIO to write the RTI Himself when an illiterate person arrives 



Please Share with maximum friends to support the Initiative.

Enquire now

Give us a call or fill in the form below and we will contact you. We endeavor to answer all inquiries within 24 hours on business days.