Right to Information in India

[karira]

An Opinion by D Sen in desicritics.org on 05 September 2008:
Desicritics.org: Right to Information in India

Right to Information in India

It is often said that government offices are not sufficiently respectful towards the right to information of citizens. It is also often thought that there is hardly any awareness among the people in India on the Right to Information Act (RTI) 2005 and its provisions, especially among the ones who were its primary targets, the beneficiaries of government schemes for poverty alleviation. While there may be some truth to this, it must be recognized that it is only a toddling three-year old baby, having been enacted in 2005. On the other hand, the Official Secrets Act 1889, committing government employees to secrecy, is more than a century old. What is more, this colonial Act, as amended in 1923, is valid even today, in spite of the RTI.

The origin of RTI can be traced back to 1975 when the Supreme Court of India laid down that the right to information was implied within the Fundamental Rights enshrined in the Constitution of India. Two years later, on the basis of the movements by the Non-Government Organization called the Mazdoor Kisan Sakti Sanghathna, the Government of the state of Rajasthan enacted its RTI Act in 1977. The Parliament of India subsequently passed the Freedom of Information Act 2002 but this was never implemented because it was thought that it did not have sufficient teeth. Finally, the Right to Information Act 2005 in its present form was enacted and implemented from 21st June 2005.

RTI envisages that there will be a Chief Information Commissioner at the National Level and State Information Commissioners in each state. The CIC would have the status of the Chief Election Commissioner of India while State Information Commissioners would be equivalent in rank to Election Commissioners. It may be highlighted that Election Commissioners enjoy the rank and status of Supreme Court Judges. Each department or ministry of the government designates a Public Information Officer as a nodal officer for dealing with requests for information under RTI. This mechanism is not available even in the US.

Under the RTI, information requested from any government office will have to be provided with 30 days of its application; if this is not provided, the Public Information Officer can be fined Rs. 250 for each day’s delay, subject to a maximum of Rs. 25,000, out of his own pocket for non-disposal of an information request without acceptable reason. The application has to be accompanied by requisite fees, through Court Fee Stamps or otherwise. These can be termed as responsive duties of public servants under RTI. There are also pro-active disclosures that are to be made by government offices. For example, information such as details of the organization, the persons occupying various positions, their contact numbers etc. are to be compiled and displayed in the public forum like the internet.

There are several reasons why RTI is important. An informed citizenry provides the strongest foundation of democratic governance. RTI leads to an Open Government, clean administration, and Good Governance. Amartya Sen, the Nobel Laureate, talks about the concept of Transparency Freedom in this context. Thomas M Susman has commented that transparency is indispensable to accommodate the investment climate.

There are a few issues to look at. One is about the definition of information. Often people pose queries under the RTI Act that does not deal with information. Thus, for example, ‘how long would it take for my passport to be delivered’ is not an “information” but ‘at what stage is my application presently’ is. RTI Act defines information as follows: Information is any material in any form including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, log-books, contracts, reports, samples, papers, 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 law for the time being in force.

Another issue that is being debated is about who are the functionaries that are subject to RTI. It is made clear that while the term ‘government’ or ‘government office’ has been used above, a wider range of authorities are subjected to the provisions of RTI. The Act says that RTI is applicable to all ‘Public Authorities’ which are “any authority, body , institution constituted or established by or under the constitution, law and government and includes any body owned, controlled or substantially financed, NGOs substantially funded by government”. Does that mean that the Speaker of the Parliament or the Chief Justice of the Supreme Court of India are bound by RTI Act? The matter is not clear yet, although it must be clarified that judgments of all courts, including the Supreme Court, are public documents and available to all concerned and so what is being debated is whether matters like transfer or promotion of Judges should come within the purview of RTI. Similarly, questions are also being raised as to whether private bodies like Unit Trust of India or Stock Exchange should be treated as a ‘Public Authority’ under RTI.

Is all information available under the RTI Act? No, there are ten exceptions. These, in brief, are as follows: (i) information that could compromise the security or sovereignty of India (ii) information forbidden by a court of law (iii) information hit by Parliamentary privileges (iv) trade secrets (v) confidential information from foreign governments (vi)information received in ‘fiduciary’ capacity – for example, in a lawyer-client relationship (vii) informers to police etc (viii) matters under criminal investigation (ix) cabinet papers and (x)information infringing on privacy issues. However, exceptions to these exceptions are also allowed in the larger public interest.

Lalit Mehta was murdered on May 2008 in Jharkhand; his eyes had been gouged out, his hands broken, because he unearthed corruption in NREGS. In spite of the very little time that has passed since the enactment of the RTI Act, there is much more that needs to be done. So what should be done? It is necessary to have a multi-pronged approach. Non Government Organizations and Civil Society may increase public awareness on RTI.

Simultaneously, it is necessary to impart training to public officials to change their mind-sets, cast earlier with the Official Secrets Act. Public Organizations also need to improve the method of internal record-keeping so that information within them is properly organized and readily available for sharing with the citizens. A pro-active approach by the Information Commission leading to highlighting of punishments given or fines imposed upon errant officials on the one hand and success stories where RTI leads to exposing corruption on the other hand, would go further in creating awareness in the public. A virtuous circle would thus revolve, spiraling to ever greater heights of an open democracy.

Debashis Sen is the Chief Electoral Officer (WB) working with the Election Commission of India. Views expressed, however, are personal. Sen has been working as a civil servant for 20 years.