Bar
& Bench: New Delhi: Thursday, November 15, 2012.
“A popular
government without popular information or the means of acquiring it, is but a
prologue to a farce, or a tragedy, or perhaps both,” said James Madison, an
American political theorist and its fourth President. If this quote is put in
perspective, then until 2005, India should have been considered as being on the
peril of such farce. Prior to 2005, neither was there any provision mandating
the disclosure of all public information, nor was there any means to access
such information.
The Right to
Information Act, 2005 (RTI Act/ Act) was the citizens’ answer to the norm of
secrecy and opaqueness in governmental proceedings that was once the order of
the day. The free flow of information in this country has been halted by
legislations like the Official Secrets Act, 1923, parliamentary privileges, the
culture of arrogance and complacency that has come to be identified with the
Indian bureaucracy and general lack of awareness among citizens. The RTI Act,
thus, aimed to concentrate power in the hands of the citizens who may
demand,even without giving a reason, any information which they think will help
them exercise their rights more effectively and take an informed decision. The
Preamble of the Act, which states that it is an Act “to provide for setting out
the practical regime of right to information for citizens” is also evidence as
to for whom the Act was introduced – the citizens.
It is the
pro-active citizenry, with the help of the “weapon” called RTI, who have been
at the helm of disclosures of several scams involving MPs and civil servants.
If not for that one person who filed an RTI application regarding allotment of
flats at the now infamous Adarsh building in Colaba, we would have never known
the extent to which environmental norms were flouted and quid pro quo existed
between politicians and builders to allot homes in a building meant to house
Kargil widows.
It is
important to trace the journey of the Act in order to understand how governance
in India has undergone changes from functioning in a closed and secretive
manner to now being under the public glare.
Recognition
of the 'Right to know" :
The Supreme
Court has interpreted Article 19(1)(a) and Article 21 of the Constitution,
which enforce freedom of speech and expression and the right to life and
liberty respectively, as including the ‘right to know’. If the public does not
have access to information about the functioning of the government and other
public institutions, the above rights become merely ornamental, with no real
power attached to it. In other words, the right to speech cannot be exercised
in the absence of the right to know.
In State of
UP vs. Raj Narain, the Supreme Court held that, “In a government of
responsibility like ours, where all 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….to cover with veil of secrecy the common routine
business is not in the interest of public.”
Thus, it is
clear that the judiciary of the country recognized the citizen’s right to
information a long time ago.
The RTI
Act:
Interestingly,
even before 2005, several states in India had come up with their own RTI
legislations. Tamil Nadu was the first state in India to enact an access law –
the Tamil Nadu Right to Information Act, 1997. At the Central level, the first
attempt to enact a law was made in 2002 when the Freedom of Information Bill
was introduced in the Parliament. The Bill was based on a draft prepared by the
Press Council of India and National Campaign for People’s Right to Information.
The Bill was passed in 2002 and also received the President’s assent, but could
not come in to force due to a want of notification from the central government.
It was the
2002 draft to which more than hundred amendments were made before it was passed
as the Right to Information Act in 2005, coming into force from 12 October,
2005.
Section 3 of
the Act declares that all citizens have the right to information. Section 2(h)
contains the definition of ‘public authority’ from whom information can be
sought under the Act. The Act makes it obligatory for the public authorities to
maintain and publish all their records. The RTI Act states that public
authorities shall make known the particulars of facilities available to
citizens for obtaining information and the names, designations and other
particulars of the Public Information Officers.
Another
instance where the Act empowers the citizens is Section 6(2) which provides
that an applicant need not give any reason for requesting the information or
provide any personal details other than what is necessary to contact him. One
of the obvious rationales behind this section is that the identity of the
person seeking information must be withheld in order to protect him from any
possible threats from the person about whom information is sought.
Under Section
7 of the Act, within 30 days of the receipt of the request, either the
information has to be provided on payment of fee or the request rejected and
the reasons have to be mentioned. If the information sought concerns the life
or liberty of a person, the same has to be provided within 48 hours. Even though the Act has been lauded for the
impact it has had on taking on the corrupt practices of the government, where
it has ably struck the right chord is in enabling the common man to overcome
problems he may face due to a particular official act.
Success
stories:
There are
innumerable inspiring stories about the RTI Act, reinforcing the belief that
power in a democracy is concentrated in the hands of the people. For instance,
in 2006 a 70-year old rickshawpuller from Bihar filed an RTI application with
the help of a local NGO. He wanted information connected to his application
under the Indira Awas Yojana (a national housing scheme). The block development
officer, on receiving his application, handed him a cheque of Rs. 15000, his first
instalment under the Indira Awas Yojana. In 2007, an under trial in Gujarat had
filed an application under the RTI Act to be allowed to inspect files relating
to vigilance enquiries against him in a financial misappropriation case. The
said files were not presented by the bank where he was an employee to the
Gujarat CID Crime Branch.
There are
many such instances, where the RTI has been used by the citizens especially
when the authorities try to withhold information. In times where the law and
order situation in the country has been delicate, the citizens have used the
RTI to make sure that the authorities are not overstepping their mandate hiding
behind the shield of the situation. For instance, the power of people was at
display when they demanded information about the public prosecutors (who had
amassed assets disproportionate to their income) in the Gujarat Godhra riots
case. Similarly, the Act has also been used during the conflict in the
north-east and also Maoist affected areas. The RTI Act has removed the need for
a common man to approach an NGO or any other group to represent him by
empowering him to approach the concerned authorities in his individual
capacity.
Furthermore,
even the judiciary has liberally interpreted the provisions of the Act, thereby
making the public authorities more accountable. For instance, in Shyam Yadav
vs. Department of Personnel. Training, the Central Information Commission held
that property statements filed by civil servants are not confidential and
information can be disclosed after taking the views of concerned officials as
per the provisions of the RTI Act.
The
drawbacks:
As much as
the Act has empowered the citizen and given them a “weapon” to keep the public
officers in check, not everything about it is foolproof. The Act has flaws –
some of them in its implementation, and some in its interpretations. One of the
latest blows to the Act has come in the form of a Supreme Court judgment in the
case Namita Sharma vs. Union of India. In this case, the constitutional
validity of provisions dealing with the eligibility criteria for Information
Commissioners at both the Central and State level, was challenged. The Act
provides that members of the State and Central Information Commission should be
persons of eminence in public life with wide knowledge and experience in law,
science and technology, social service, management, journalism, mass media or
administration and governance. It was the contention of the petitioner that the
Information Commission performs duties of judicial and quasi-judicial nature;
however, the qualifications prescribed for the same are vague, general and ultra
vires the Constitution.
The Supreme
Court upheld the validity of the sections but ruled that the Information
Commissions are “quasi-judicial authorities” or “tribunals” performing judicial
functions and that they will have to work in a bench of two members, one
judicial member and the other a qualified person from a specific field. The
judicial members will be appointed in consultation with the Chief Justice of
India and Chief Justices of the High Courts of the respective States, as the
case may be. About the consequence of such a move, Shailesh Gandhi, former
Central Information Commissioner, opined that, “Effectively the disposal of
pending cases will drop to about 50% of the current disposals. This will lead
to Commissions deciding cases after five years or more in the next few years.”
Also, some activists opine that the inclusion of a judicial member will deprive
the Act of the personal touch that it could boast of, since information
officers do not come with aura that surrounds a judicial person. At present, a
review petition against this judgment has been filed by the Union government
and is pending before the Supreme Court.
There are
also some specific problems with the implementation of Acts in certain states.
For instance, Chattisgarh has increased the fee for an RTI application to Rs.
500, placing it beyond the reach for a lot of people. This is despite the fact
that the Act stipulates a nominal fee.
Yet another
bone of contention with respect to the Act has been the (non) application of
the Act to public-private-partnership (PPP) projects, which rule the roost as
far as infrastructure projects in the country are concerned. As per section
2(h) of the RTI Act, in case of non-governmental organisations, only those that
are “financed, directly or indirectly, by funds provided by the government”
fall under the purview of the RTI Act. The Central Information Commission has
made repeated pleas to the government to include PPP projects under the purview
of RTI Act as public money and interest are
involved in such projects. However, Prime Minister Manmohan Singh, at
the annual convention of information commissioners, said that a blanket
extension of the RTI Act to such PPP projects may discourage private
enterprises to enter into partnerships with the public sector. On the other
hand, a blanket exclusion may harm the cause of accountability of public
officials, thus not taking a clear stand on the same. However, RTI activists
have criticised this statement, arguing that since public interest is at stake
in infrastructure projects, these projects should be under the purview of the
RTI Act.
Attacks
against RTI activists, some of them even fatal, have also been a major
deterrent in the RTI movement, a situation compounded by fact that there are no
express provisions in law for the protection of applicants. For instance,
activist Amit Jethwa, who had filed several RTI applications and had named an
MP while exposing illegal mining in the Gir forest, was gunned down outside the
Ahmedabad High Court in July 2010.
There is hope
though. The Whistleblowers Protection Bill is closely connected with the
success of the RTI Act, considering the increasing attacks on RTI Activists who
have dared to register complaints against corrupt politicians, and wilful
misuse of power by them. The legislations to protect whistleblowers, when
enacted, shall provide safeguards to an RTI applicant.
The
challenges:
The general
awareness amongst people about the RTI Act and how it can be used for their
benefit is still low. Moreover, there is a lack of sincerity on the part of
government officials in disclosing information, who often threaten the
applicant or refuse to provide information. Additionally, the Information
Commissioners have time and again cited the lack of man power required to
comply with all the provisions of the Act.
Recently, the
Union Cabinet was contemplating amendments to the RTI Act, which were
subsequently withdrawn after pressure from activists. The amendments, if
cleared, would have restricted the disclosure of file notings in government
departments under the RTI Act only to the ones related to social and
developmental issues. Also, the selection process for appointments made to
public offices would have been concealed from the public. However, the very
fact the such an amendment was even considered by the government and moreover,
the Supreme Court’s judgment in Namita Sharma’s case has set the alarm bells
ringing as far as the future of the RTI Act is concerned.
Conclusion:
The RTI Act
has been lauded by democracy advocates all over the world, since it is at par
(or even better) than similar laws enacted in countries in the West. For
instance, in the US and UK, the respective information disclosure acts require
the applicant to disclose his personal details, whereas in India, no such
details are required. The RTI Act is one legislation that is indeed the pride
of Indian democracy.
The RTI Act,
as it stands today, is a strong tool to uphold the spirit of democracy. The
need of the hour is that the RTI Act should be implemented to ensure that the
objects of the RTI Act are fulfilled. Any attempt to dilute the provisions of
the RTI Act will only quell its’ success.
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