Governance Now: New Delhi: Wednesday,
November 09, 2016.
India’s Right
to Information (RTI) Act is rated as the third best in the world as far as its
provisions go but its rating for implementation and actual transparency ranks
India at number 66.
“There is a
growing tendency from those with power to misinterpret the RTI Act almost to a
point where it does not really represent what the law says” writes RTI activist
and former information commissioner, Shailesh Gandhi in his e-book, RTI:
Authentic Interpretation of the Statute.
Co-authored
by Pralhad Kachare, a bureaucrat who earlier headed RTI cell of Yashwantrao
Chavan Academy of Development Administration (YASHADA), the book has
deconstructed the meaning of the Act by “keeping the preamble in mind” without
“references to any decisions or judgments; no proposals for changes in law and
also no reference to international practices or laws in this exercise”. The
book includes comments from former chief information commissioner Satyananda
Mishra and international transparency expert, Toby Mendel.
Nearly half
the RTI applications have to be made as most government departments violate the
transparency law in fulfilling their duties under section 4 of the Act. If they
gave the information suo moto as mandated in the law, citizens would not have
to make half the applications.
In his book
Gandhi says, “Unfortunately inadequate attention is given to interpretations of
the words of the law passed by Parliament. There are instances where the RTI
Act has been grossly constricted by decisions in which a complete section of
the statute is not even quoted completely… Orders or judgments which cannot be
justified by the language of the statute cannot form the basis of law which
would be followed as precedents… The Supreme Court can rule that a law or
provision is ultra vires, but if it gives a ruling without considering the
words of the law passed by Parliament this would be a ruling which would be
ultra vires.”
Gandhi has
asked for a national colloquium to discuss and debate the RTI Act as per its
words and spirit.
“The Right to
Information Act overrides all earlier acts or rules as far as giving
information is concerned. The only exception will be if release of some
information is prohibited in the Constitution.”
The book
explains the meaning of the Act in its entirety; sections, clauses and
sub-clauses in very simple and easy words. “A number of landmark Supreme Court
judgments have recognised the Right to Information as part of the fundamental
rights of citizens under Article 19(1) (a)... It is not a new right conferred
on the citizens.”
‘Transparency
in the process of governance acts as a check on arbitrariness and corruption...
The legislative intent of the Right to Information Act, 2005 is clear when it
admits the need for an informed citizenry, to contain corruption and to hold Governments
and their instrumentalities accountable to the governed.” An uninformed
citizenry cannot express or participate meaningfully in democratic governance”
says Gandhi explaining the preamble of RTI Act, No. 22 of 2005 preamble.
Gandhi says
that “rules cannot specify exempting any information beyond what is exempted
under section 8 of the RTI Act” and adds that “establishments of the
Parliament, Legislatures, Judiciary, President and the Governors have also been
brought under the surveillance of the citizen”. “Section 4 is the core and
guiding framework of the RTI Act to ensure good governance. If public
authorities implement this diligently it would not only reduce RTI queries but
also dramatically improve their performance… The requirements of Section 4 are
almost the same as for an ISO certification where entire public authority
processes and practices have to be recorded.”
He also
explains with examples on how to ask for and avoid rejection of information
sought under section 7 (9). “‘Why have I
not got a ration card?’ is not asking for information; but I want the progress
of my file relating to my application for a ration card is asking information…
‘Why have I not got admission?’ is not asking for information, whereas I want
the cut-off marks at which admission was granted is asking for information.”
“It must be
clearly understood that giving information to the citizens must be the rule;
and denying it an exception.”
The aim of
the book is to demystify the enabling RTI Act for people to understand it to
ask and get information.
On section
11, the author says it is important to understand that the section is a
procedure to allow an affected third party to voice his objections to releasing
information which might cause harm to his interests. The PIO is expected to
follow the procedure of section 11 when he intends to disclose any information
or record. It is not an exemption. The exemptions for providing the information
are only in section 8 and 9 as mentioned explicitly in section 7 (1). By implication
and specifically in section 22, it has been clearly spelt out that this Act
shall have effect notwithstanding anything inconsistent with it in any other
law.
“The
decisions of the commissions are not merely recommendatory but have to be
followed as per law and have statutory force” says the author on explaining
section 19 (7).” “Insertion of a non-obstante clause in section 22 of the Right
to Information Act was a conscious choice of the Parliament to safeguard the
citizens’ fundamental right to information from convoluted interpretations of
other laws and rules adopted by public authorities to deny information.”
In the
concluding pages commenting on section 23, Gandhi again points, “This clearly
bars any court from hearing an appeal against any right to information order
issued by a commission. The final appellate authority in RTI is the Commission.
Since Parliament has not provided for appeals in right to information beyond
the commissions, when a court takes a challenge to an order of the Commission it
should justify how the matter falls under its writ jurisdiction. He further
explains, “There are five kinds of writs and the only writ which can be invoked
against the orders of the information commission is a Writ of Certiorari.
Unfortunately many writs are entertained by courts from public authorities
which are clearly appeals.”
“The aim of
parliament to get citizens to use RTI to curb corruption is evident from the
fact that even security and intelligence agencies have to provide information
in case of allegation of corruption” he says on section 24(1).
The end of
the e-book includes an RTI competition with a maximum prize of Rs 25,000 aimed
at creating a database of people’s analysis on the large number of decisions on
the RTI Act, as well as generating awareness and a deeper understanding of the
Act.
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