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Right To Information

Contains an outline of Right to information law with special reference to India

Date : 04/05/2017

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Avantika

Uploaded by : Avantika
Uploaded on : 04/05/2017
Subject : Law

Right to Information

Origins of openness

More than two centuries ago, Sweden passed the first freedom of information law in the world. It abolished political censorship and provided public with an access to government documents.

Chinese emperors were expected to admit their own imperfection as a proof for their love of the truth and in fear of ignorance and darkness.

Around the globe, people in a number of Nations celebrate International Right-to Know Day on September 28 of every year. The Day recognizes and promotes the worldwide proliferation of government openness. This event is commemorated every year in order to symbolize the global movement for promotion of the right to information.

180 years later, United Nations General Assembly, in its first session in 1946, adopted Resolution 59 (I). It states, Freedom of information is a fundamental human right and the touchstone of all the freedoms to which the UN is consecrated .

Article 19 of the Universal Declaration of Human Rights of 1948 and Article 19 (2) of the International Covenant on Civil and Political Rights of 1966 recognised Freedom of expression including Freedom of Information and Free Press - a fundamental human right. Freedom of Expression includes the right to seek, receive and impart information and right to access information held by public authorities.

Article 10 of the U.N. Convention against Corruption of 2005 states: to combat corruption, each (Member State) shall, in accordance with the fundamental principles of its domestic law, take such measures as may be necessary to enhance transparency in its public administration.

Ever since the U.N. General Assembly recognized freedom of information as a fundamental human right, many nations started adopting laws assuring right to access information.

India won freedom after centuries of struggle as a result of sacrifices made by many heroes. We wrote our Constitution, which, amongst other things, gave us freedom of speech and expression as a fundamental right.

Our Supreme Court, many times, declared that we had freedom of information, which was part of freedom of expression guaranteed by Article19 of the Constitution. Without freedom of information, freedom of expression remains meaningless.

However, governments have by and large been opaque in terms of making information available in public domain.

In this scenario, a mass-based organisation called the Mazdoor Kisan Shakti Sangathan

(MKSS) took an initiative. It lead the people in a very backward region of Rajasthan Bhim Tehsil to assert their right to information. They asked for copies of bills and vouchers and names of persons who have been shown in the muster rolls.

MKSS succeeded in getting photocopies of certain relevant documents. MKSS has organized several public hearings (jan sunwai). People s anger made one Engineer of the State Electricity Board to return, in public, an amount of Rs.15,000 extracted from a poor farmer. Rajasthan experience on demanding right to information was echoed in other States.

Now let us understand why these people needed the Right to Information. A semi-literate lady in that village She said, "When I send my son to the market with ten rupees, I ask for accounts. The Government spends millions of rupees for the poor. Is liye - Mera paisa, mera hisab My money, My accounts!

The Government of India introduced the Freedom of Information Bill, 2000 in the Lok Sabha on 25th July, 2000. The Bill cast an obligation upon public authorities to furnish such information wherever asked for. It was passed by the Parliament as the Freedom of Information Act 2002. However, the Act could not be brought into force because the date from which the Act should come into force, was not notified in the Official Gazette.

Later, the UPA Government decided to repeal the FOI Act and enacted a new legislation, the Right to Information Act 2005. This act provided an effective framework for effectuating the right to information recognised under Article 19 (1)(a) of the Constitution of India. The Parliament enacted the Right to Information Act to facilitate the people s right to information, in the 56th year of the Republic.

The most important historical event of pre independent India is Satyagraha and surely the most revolutionary happening of Post Independent era is the Right to Information Act, 2005.

The way Satyagraha speaks about the strength of truth and unites the entire india for our freedom, in that way this RTI Act, 2005 also espouses the cause of truth, transparency and of good governance on one hand, and on the other hand makes way for people s participation in the democracy, empowers them for an informed participation which is important for true social development

There are 9 principles behind this legislation:

PRINCIPLE 1. MAXIMUM DISCLOSURE

Freedom of information legislation should be guided by the principle of maximum disclosure

PRINCIPLE 2. OBLIGATION TO PUBLISH

Public bodies should be under an obligation to publish key Information

PRINCIPLE 3. PROMOTION OF OPEN GOVERNMENT

Public bodies must actively promote open government

PRINCIPLE 4. LIMITED SCOPE OF EXCEPTIONS

Exceptions should be clearly and narrowly drawn and subject to strict harm and publicinterest tests

PRINCIPLE 5. PROCESSES TO FACILITATE ACCESS

Requests for information should be processed rapidly and fairly and an independent review of any refusals should be available

PRINCIPLE 6. COSTS

Individuals should not be deterred from making requests for information by excessive costs

PRINCIPLE 7. OPEN MEETINGS

Meetings of public bodies should be open to the public

PRINCIPLE 8. DISCLOSURE TAKES PRECEDENCE

Laws which are inconsistent with the principle of maximum disclosure should be amended or repealed

PRINCIPLE 9. PROTECTION FOR WHISTLEBLOWERS

Individuals who release information on wrongdoing, that is the whistleblowers must be protected.

Bringing Information to the Citizens

Right to Information Act 2005 mandates timely response to citizen requests for government information. It is an initiative taken by Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions to provide a RTI Portal Gateway to the citizens for quick search of information on the details of first Appellate Authorities, PIOs etc. amongst others, besides access to RTI related information / disclosures published on the web by various Public Authorities under the government of India as well as the State Governments

Objective of the Right to Information Act :

The basic object of the Right to Information Act is to empower the citizens, promote transparency and accountability in the working of the Government, curb corruption, and make our democracy work for the people in real sense .

It goes without saying that an informed citizen is better equipped to keep necessary vigil on the instruments of governance and make the government more accountable to its people The Act is a big step towards making the citizens informed about the activities of the Government (rti.gov.in)

RTI ACT FEATURES/ PROCESS

What is Information?

Information is any material in any form. It includes records, documents, memos. e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form. It also includes information relating to any private body which can be accessed by the public authority under any law for the time being in force.

. A citizen has a right to obtain information from a public authority in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through print-outs provided such information is already stored in a computer or in any other device from which the information may be e-mailed or transferred to diskettes etc.

Information to be provided: Exactly as asked for/ no change of form can be made/ no research or no deducing any conclusion from any material asked for.

With respect to other laws inasmuch as the provisions of the RTI Act would have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than th~ RTI Act.

The Act gives the right to information only to the citizens of India but not to any legal entities other than citizens. It does not make provision for giving information to Corporations, Associations, Companies etc. which are legal entities/persons. but not citizens.

Fee for Seeking Information

Along with the application, a demand draft/ or a banker`s cheque/ or an Indian Postal Order of Rs.10/- (Rupees ten),/ court fee stamp payable to the Accounts Officer.

The payment of fee can also be made by way of cash to the Accounts Officer of the public authority or to the Assistant Public Information Officer against proper receipt.

Further fee towards the cost of providing the information, details of which shall be intimated to the applicant by the PIO as prescribed by the Right to Information (Regulation of Fee and Cost) Rules, 2005.

Rates of fee as prescribed in the Rules are given below: (a) rupees two (Rs. 2/-) for each page ( in A-4 or A-3 size paper) created or copied (b) actual charge or cost price of a copy in larger size paper (c) actual cost or price for samples or models (d) for information provided in diskette or floppy, rupees fifty (Rs.50/-) per diskette or floppy and 4 (e) for information provided in printed form, at the price fixed for such publication or rupees two per page of photocopy for extracts from the publication.

Inspection of records: No fees for the first hour but rupees five (Rs.5/-) for each subsequent hour

Applicant belongs to below poverty line (BPL) category, he is not required to pay but should submit a proof in support of his claim to belong to the below poverty line.

Any application not accompanied by the prescribed fee of RS.10/- or proof at the applicant`s belonging to below poverty line, shall not be a valid application under the Act.

It may be pointed out that there is no bar on the public authority to supply information in response to such applications. However, provisions of Act would not apply to such cases

Format of Application

There is no prescribed format of application for seeking information. The application can be made on plain paper. The application should, however, have the name and complete postal address of the applicant Even in cases where the information is sought electronically, the application should contain name and postal address of the applicant.

Information exempted From Disclosure

Sub-section (1) of section 8 and section 9 of the Act enumerate the types of information which is exempt from disclosure. Sub-section. (2) of section 8, however, provides that information exempted under sub-section (1) or exempted under the Official Secrets Act, 1923 can be disclosed if public interest in disclosure overweighs the harm to the protected interest. 25. The information which, in nonnalcourse, is exempt from disclosure under sub-section(1) of Section 8 of the Act. would cease to be exempted jf 20 years have lapsed after occurrence of the incident to which the information relates. However, the following types of Information would continue to be exempt and there would be no obligation, even after lapse of 20 years, to give any citjzen~ (i) Information disclosure of which would prejUdicially affect the sovereignty and integrity of India, the security, strategic. scientific or economic interest of the State. relation with foreign state or lead to incitement of an offence (ii) information the disclosure of which would cause a breach of privilege of Par1iament or State Legislature or (iii) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other Officers subject to the conditions given in proviso to clause (i) of sub sectlon(1) of Section 6 of the Act

Assistance Available to the Applicant

lf a person is unable to make a request in writing, he may seek the help of the Public Information Officer to write his application and the Public Information Officer should render him reasonable assistance.

Assistance to disabled Applicants: Where a decision is taken to give access to a sensorily disabled person to any document. the Public Information Officer, shall provide such assistance to the person as may be appropriate for inspection.

Time Period for Supply of Information. In normal course, information to an applicant shall 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. `

Appeals

If an applicant is not supplied information within the prescribed time of thirty days or 48 hours, as the case may be, or is not satisfied with the information furnished to him, he may prefer an appeal to the first appellate authority who is an officer senior in rank to the Public Information Officer.

Such an appeal, should be filed within a period of thirty days from the date on which the limit of 30 days of supply of information is expired or from the date on which the information or decision of the Public Information Officer is received.

The appellate authority of the public authority shall dispose of the appeal within a period of thirty days or in exceptional cases within 45 days of the receipt of the appeal.

If the first appellate authority fails to pass an order on the appeal within the prescribed period or if the appellant is not satisfied with the order of the first appellate authority, he may prefer a second appeal with the Central Information Commission within ninety days from the date on which the decision should have been made by the first appellate authority or was actually received by the appellant.

Complaints

If any person is unable to submit a request to a Public Information Officer either by reason that such an officer has not been appointed by the concerned public authority or the Assistant Public Information Officer has refused to accept his or her application or appeal for forwarding the same to the Public Information Officer or the appellate authority. as the case may be or he has been refused access to any information requested by him under the RTI Act or he has not been given a response to a request for information within the time limit specified in the Act or he has been required to pay an amount of fee which he considers unreasonable or he believes that he has been given incomplete, misleading or false information, he can make a complaint to the Information Commission.

SUPREME COURT DEVELOPMENTS

There is now a threat from a different direction. Parliament passes the law, and courts have the job of interpreting them. RTI applicants have difficulty in getting a proper interpretation of the law from government officers and information Commissioners.

All information commissioners are selected without by any process and most have no predilection for transparency. When these decisions go against the applicant very few have the resources to challenge them in courts.

On the other hand when an important decision goes against the public authority the department goes to court. In most of these cases the ability of applicants to pursue these cases is not high and hence most incorrect denials get confirmed by courts.

Out of sixteen judgments given by the Supreme Court on the RTI law in only in one was information ordered to be provided. This judgment also had the following statement:...

Indiscriminate and impractical demands or directions under 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 counter-productive 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 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 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.

This was without any basis and had no context with the case. RTI users were aghast at their fundamental right being described as a potential tool to obstruct national development, integration, peace, tranquility and harmony ....

In Girish Deshpande s Case the Supreme Court has given a judgment denying a RTI request for copies of all memos, show cause notices, orders of censure/punishment, assets, income tax returns, details of gifts received etc. of a public servant. The court has ruled without giving any legal arguments that this is personal information as defined in clause (j) of Section 8(1) of the RTI Act and hence exempted. The only reason ascribed in this is that the court agrees with the Central Information Commission s decision. Such a decision does not form a precedent which must be followed.

The Supreme Court has the right to interpret the law, but it must do this with reasons and not by overlooking the detailed provisions of the law.

Conclusion:

Practically, the awareness level is still very low in general and even within the government officials and these are due to the strong apathy of a particular section of our respective state governments.

But truly, a great change has come in India in the last decade in the power equation between the sovereign citizens of the country and those in power. This change is just the beginning and if we can sustain and strengthen it, our defective elective democracy could metamorphose into a truly participatory democracy within the next one or two decades.

But there are two big dangers to the RTI:

A former Chief Justice of India said in April 2012, The RTI Act is a good law but there has to be a limit to it. I am amazed at the suggestion that there should be a limit to RTI beyond what has been laid down in the law by Parliament in terms of exemptions. Any interpretation of transparency, beyond what is written in the law will be a violation of Citizen s fundamental right to information. We have travelled some distance away from the statement made by a seven judge bench of the Supreme Court of India in S. P. Gupta v. President of India & Ors. (AIR 1982 SC 149) There can be little doubt that exposure to public gaze and scrutiny is one of the surest means of achieving a clean and healthy administration. It has been truly said that an open government is clean government and a powerful safeguard against political and administrative aberration and inefficiency .

2. A greater danger comes from the selection of Information Commissioners as a part of political patronage. Most have no predilection for transparency or work. Their orders are often biased against transparency and in many places a huge backlog is being built up as a consequence of their inability to cope. Consequently, a law which seeks to ensure giving information to citizens in 30 days on pain of penalty gets stuck for over a year at the Commissions. Most of these Commissioners do not work to deliver results in a time-bound manner and lose all moral authority to penalise PIOs, who do not work in a time-bound manner. Commissioners are slowly working less and less.

In this kind of a situation, eternal Vigilance is the price for democracy. We have a very useful tool to make our democracy meaningful and effective. It will work and grow if we struggle to ensure its health. We need to put pressure on various institutions so that they restrain from constricting our right, ensure a transparent process of selection for Commissioners and work for the adequate disposal of cases at the Commissions. But to make this happen, all we need is Citizens who must wake up from their slumber and be focused to give clear signals that they will not tolerate tardiness from public Authorities, Public Information Officers or Commissioners of Information.

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