Vagueness in applicability and coverage
A "perspective" (first part) on the RTI Act in The Statesman (thestatesman.net) on 19 February 2008:
Vagueness in applicability and coverage
India ushered in an era of transparency in government after about fifty years of independence by joining the group of countries who have recognised citizens’ right of access to government records and information affecting their lives and their self-fulfillment, through the Right to Information Act 2005 upholding the supremacy of the people.
This law envisages observance by public authorities for the people, citizenry and not vice versa as in the case of all other statutes. The RTI Act is being implemented for the past two years by citizens at large, activists, various authorities, groups and other stakeholders. The period is comparatively very short from the standpoint of getting a complete idea about all ramifications and implications of the provisions of this unique Act.
Section 30 of the Act provided for two years’ period for review of implementation of the Act and empowered the Centre to issue orders for removal of difficulties in giving effect to the provisions of the Act during this period of two years. This phase is over, but nothing of consequence in this regard is seen to have happened.
However, from the limited experience we have had in implementing the Act we find that various issues have come up since October 2005 which merit the attention of all authorities, activists, citizens, media, NGOs and parliamentarians so as to make the Act more effective.
Some of the issues which are nagging the minds of people need debating so as to reach concrete solutions, interpretations and clarifications for making the Act more effective. This will further strengthen the democratic institutions and consequently widen as well as deepen the process of democratisation of the functioning of these institutions.
Firstly, let us consider the issues relating to definition of “information” [Section 2(f)] and “public authority” [Section 2(h)]. There is need for clarification of the words “material in any form” used in definition of information, as also clarity about the concept of “Public Authority/ies” (PA) in the Act.
In the definition of information the words “material in any form” do not convey the complete coverage intended by the Act due to the word “including” which tends to limit the scope of this definition to the various forms of information mentioned only. This deficiency needs to be removed by way of an explanation/addition to the definition words “including but not limited to” for the benefit of all. Further, the Act specifies which authorities can be termed as “Public Authority” through the definition in Section 2 (h). In this definition, there is no clear, simple identification of various government/semi-government offices as public authorities which ought to have been done for the convenience of citizens. With legal wording of the definition it is difficult for a layman to understand the scope of coverage of this definition in the Act. Since the Act is for the citizens to invoke and not law enforcing agencies, this aspect needs to be taken care of by way of suitable explanation.
The wording at (iv) under Section 2 (h) says that any authority or body or institution established or constituted by notification issued or order made by the appropriate government shall be “Public Authority” (PA). This provision mainly covers all government/semi-government offices since they are either established/constituted through notification or administrative orders. But, the public is not aware of all such notifications, orders and it becomes difficult for them to confirm the status of any authority being or not being a PA under this category which is more crucial to the citizens to exercise their right to information.
There is ambiguity even in the minds of many government functionaries, leave aside the gullible citizens, that the coverage of this provision encompasses all government/semi-government offices. Hence, it needs to be brought out vividly for the benefit of the general public the import of this provision to facilitate the exercise of the Right to Information by citizens without any confusion in respect of information concerning any “Public Authority” under the government sphere by way of an explanation to this definition.
Further, under provisions of Section 2 (h) there are some other categories of authorities/bodies (in non-government sphere) which can be treated as “Public Authorites”. In this provision the use of the words “substantially financed” are of crucial significance in determining the status of such authorities as PA. However, the scope of these words is not clearly spelt out, thereby leaving a lot of confusion regarding which authorities are substantially financed and which are not.
The Act is silent as to whose decision in case any non-government agency refuses to acknowledge itself as PA will be final. If a citizen has to move the Information Commission in such matters also, then the avowed objective of the Act to set up a practical regime of RTI is frustrated. Unless some case law is developed on this issue, this wording will continue to keep the veil of vagueness over the extent of applicability and coverage of this wording in respect of organisations receiving government finances. This deprives the citizen of the opportunity to exercise the Right to Information in respect of such organizations to the large extent.
Similarly, use of the word “controlled” in the definition for determining the status of bodies falling under the category of PA is not succinctly defined, leaving the citizen in the lurch. Some say that the bodies requiring licences from the government are the bodies “controlled” by the appropriate government, while others say that the bodies which have to comply with various rules and regulations framed by the government can be termed as bodies “controlled” by the appropriate government.
The citizen is very much confused on these two parameters. In order to mitigate his difficulties, the coverage and applicability of these provisions to the authorities in the non-government sphere, the Act needs to be made easily understandable to the citizens through explanations and illustrations. Besides, there ought to be specific provision to designate (for the government sphere) or identity (for the non-government sphere) the PA so that citizens do not find any difficulty in deciding/identifying such authority.
Thereafter we encounter significant lacunae in respect of proactive discloser by the PA under Section 4 of the Act. Though the Act “provides” for proactive disclosure by the PAs, it does not “require” the same through appropriate provision. This proactive disclosure is meant to help the citizenry in getting basic information of the PAs without much effort and rigmarole of the Act so that the exercise of applying for information etc. is greatly reduced.
But, this provision (in Sec. 4) is only a “pious wish” in as much as it does not take this to its logical end, that is, how to ensure the proactive disclosure by the PAs. In many cases, the PAs have failed to make proactive disclosure as per Sec. 4 partially/fully. However, the Act has no stipulation for monitoring the proactive disclosure by the PAs and further to penalise the erring PAs who do not make proactive disclosure. In order to realise the objective behind provision in Sec. 4, there is dire need to make further provision for monitoring the proactive disclosures made, updated and penalty for failing to do so.
It is observed that sometimes the Assistant Public Information Officer (APIO), designated vide Section 5 (2), is considered as subordinate of PIO (vide section 5 (1)). This is not quite in keeping with definition of PIO in Section 2(m). Both are independent authorities with specific duties assigned to them. This needs to be clarified by way of an explanation to Section 5 (2).
Then come the issues pertaining to “Appellate Authority” (AA) under the Act. The AA is a very crucial authority in helping the citizen realise his Right to Information. The scheme of the Act envisages the intervention of the AA to help the citizens in cases where the citizen is denied access to information wrongfully or the citizen is aggrieved by the decision of the PIO. However, it is neither clarified in the Act as to who will designate the AA like a PIO and how it will be designated nor the AA is defined as the PA is defined for the benefit of the citizenry. In certain offices, like the office of patwari, there is only one public functionary. In such cases, in the context of provision in Section 19 (1), it is not possible to designate AA from the same office which is envisaged in the scheme of Act since that office itself is a PA. As an established principle of law, one officer cannot act as deciding authority as well as appellate authority. Even Section (4) of the Act, pivotal for proactive disclosure by the PAs, is silent on AA.
In the absence of proper knowledge about the AA through the Act as well as absence of proactive disclosure about the AA concerned in respect of specific PA coupled with the non-response by the PIO to the application of the citizen for information, the citizen is in total darkness as to whom exactly he should appeal to. There is no penal provision for failure to make proactive disclosure, which renders the provision into wishful thinking and this needs correction. This goes to increase the flow of complaints to Information Commissioners, an undeniably undesirable situation.
The present Act makes it difficult for the citizen to understand the authority to whom an appeal can be made. Consequently, the complaints/appeals to the Information Commission burgeon which can be avoided by making suitable provisions in this regard. Thus the provisions regarding the definition, designation/constitution of the first AAs, the duties and responsibilities and powers of such AAs need to be clearly set out in the Act/Rules so as to make matters simple for the citizens.
Also, there is confusion about who is really entitled to the access to information and records legitimately due to use of the word “citizen” at few places and “person” in many places. Section 3 of the Act provides that “all citizens” shall have the right to information. However, except this section and Section 8 in all other sections in the Act there is mention of the word “person” instead of “citizen”.
This has resulted in ambiguities such as whether any person as also the legal person can ask for information or whether a person resident in India but not citizen of India can also have the right to information. This ambiguity coupled with the requirement under Section 6(2) that the PIO is to seek only such personal details as may be necessary for contacting the applicant is fraught with the risks like foreigners getting some information which they are otherwise not entitled to as well as the PIO playing unwittingly into the hands of such elements to the detriment of public interest [refer Sec. 8 (3) ].
In order to resolve this, it should be made clear by use of the word “citizen” everywhere explicitly and that only citizen of India shall have the right to information, while the artificial/legal persons should be excluded clearly.
Further, though the PIO is generally known to be responsible for providing information requested for by the seeker/applicant under the Act, the provisions of Section 6 (3) adds to confusion about this. This is especially so when it comes to fine and other penalties for failure to give information, which befall on the PIO.
Section 6, dealing with requests for information, mentions that mainly the PIO is responsible to give the information asked for. However, Section 6 (3) refers to the application for information to the PA. This provision confuses all concerned as to whether the PIO is responsible for providing information or the PA, on application. This has also led to such arguments as to why the fine should be imposed on the PIO instead of the PA since the latter is also supposed to give information applied for. The exact position needs to be made clear by revising Section 6 (3) suitably.
This provision also creates an ambiguous situation when there are more than one PIOs under one and the same PA. In case the information sought for pertains to a PIO under the same PA and the application for the same is received by another PIO of the same PA, such application cannot be transferred to another PIO to whom it pertains since the provision in the Act refers to only different PAs and not different PIOs under the same PA for such transfer.
This situation arises quite often in very large offices being one PA. Hence, the words “Public Authority” in Section 6(3) need to be replaced by the words “Public Information Officer” to remove the ambiguity that presently exists.
(To be concluded)
(The author is Professor and Financial Adviser, YASHADA, the national implementing agency for RTI, Pune)
Re: Vagueness in applicability and coverage
Here is the second part of the above article as published on thestatesman.net on 20 February 2008:
Against the principle of decentralisation
The costs or fees chargeable in respect of the information to be provided under the RTI Act needs to be laid down clearly, as presently this is a grey area with a lot of conflicting and contentious opinions.
Section 6(1) of the Act requires for the payment of application fee which is normally Rs 10, but in some cases it has been prescribed as Rs 500 in exercise of powers vested by the Act. This wide variation in application fee itself is prohibitive and injudicious, acting as a deterrent to exercising of the basic right.
This does not go well with the proviso to Section 7(5) which requires that fees under Section 6(1) and Section
7(5) shall be reasonable. Besides, Section 7(3) of the Act refers to “further fees” to be paid by the applicant for information apart from fees under Section 7(1). These “further fees”, as per the Act, represent the cost of providing information and in cases of providing information in the form of model or sample.
The proviso to Section 7(5) makes it clear that a person below the poverty line (BPL) will not be charged the fees prescribed under Section 6(1) and Section 7(1) and 7(5) but this does not cover or refer to Section 7(3). A question arises as to whether the BPL person will also be exempt from paying the “further fees” under Section 7(3), not covered as “prescribed fees” under Section 6(1) and Section 7(1) of the Act.
A plain reading of all these related provisions in the Act indicates that the “further fees” as per Section 7(3) are not “prescribed fees” but the fees which represent the cost of providing information over those fees that are prescribed and, as such, BPL persons cannot be exempted from such “further fees”. However, the word “fees” added to “further” compounds the confusion and leads to argument that BPL persons are exempt from any kind of fees.
If a BPL person makes a request for sample of one gram of gold to the Reserve Bank of India (being public authority), can it be expected that he can be given more than one lakh documents’ copies OR one gram sample of gold free. It will be difficult to give “yes” reply in such cases, since the cost of providing information (further fees) are not prescribed and depend on case by case basis. Hence, the provision regarding further fees needs to be revised by using the words “further cost” and the provision in Section 7(5) about BPL has to be clarified in the context of the provision in respect of “further costs”.
Another grey area in the Act is provisions in Section 7(9), which deal with disproportionate diversion of the resources of the public authority in providing information. This is a vague provision in as much as it is left to anybody’s guess as to how to decide “disproportionate diversion of resources” and whose decision in this regard will be authentic. This vagueness needs to be removed by clarification through definition as well as suitable provision regarding the PIO or competent authority of the PA being authority to decide on this aspect.
Besides, another issue arises from this is about providing requisite infrastructure and budget for this function of the public authority which can be dealt with through rules. All over the country, paucity or near absence of necessary infrastructure as well as appropriate budget and account heads for this onerous function is impeding the PIOs in discharging their functions to a great extent.
The next puzzle about the Act aggravates the problem instead of solving it. Section 7(1) of the Act has a proviso which states that the information concerning life and liberty of a person should be provided within 48 hours. Naturally, it follows that any appeal in such cases has also to be decided in such shorter time not exceeding 48 hours, but the provisions dealing with appeal (Section 19) lay down outright 30 days’ time limit for all appeals, including appeals in cases involving questions of life and liberty of a person. This means, if such information is not provided in time or denied, the remedial measure (ie appeal) would require 30 days for the applicant to get redressal. This defeats the objective of the proviso to Section 7(1).
The Act should make a corresponding provision for a similar short time limit for decision in case of first as well as second appeal in such cases, which is necessary so as not to frustrate the objective of this provision. Further, the words “concerned with life and liberty” need elaboration through definition as also explanation/clarification, so as to help citizens fully enjoy the benefits of this provision complimenting basic objectives of the Act.
There is an excellent example of a half-hearted attempt to take the help of advances in technology. Section 6(1) and Section 7(5) of the Act refer to the requests for information in electronic format, that is, through e-mail. However, the mode of payment of requisite fees in such cases has not been separately prescribed (like on-line payment through payment gateway).
This lacuna leaves the citizen in a quandary as to how to make the payment after applying through e-mail. If he has to make the payment by approaching the office concerned in cash or through bank draft, then the intention that he can save time by e-mail application is not realised. While harnessing the latest technology for citizen’s benefit, the consequential requirement of provision for “on-line” payment of fees is lost sight of, thereby making the provision for application by e-mail redundant.
Even the rules in this regard are silent. Since the provision for on-line payment is in line with e-mail request/application it is the need of the hour, and needs to be incorporated through amendment in the Act or through a suitable rule.
Another problem where unnecessarily power has been arrogated to the Union government is the proviso to Section 8(3). This proviso empowers the Centre to decide the date from which the period of 20 years has to be computed. This is further subject to usual appeals provided for in the Act. This need not be made so complicated, if at all usual appeals are to be allowed. The date of application under Section 6(1) can be the relevant date to decide the period of 20 years and this can be decided by the Central/state PIO. A suitable amendment is necessary to remove such a complex provision.
Next comes the complexity of “Third Party Information” referred to in Section 11. In Section 11(1), there is a wording about such information “which relates to or has been supplied by a third party and has been treated as confidential by that third party”. This wording conveys that a third party is entitled to treat even the information relating to it (though not supplied by it) as confidential. This cannot be the appropriate position of law. The information with the PA as a matter of due process of its functioning, relating to a third party cannot be subject to decision by a third party as to its nature (confidentiality or otherwise). This infirmity should be removed through appropriate amendment.
Further, as per Section 11(3) and (4) the matter is left loose as regards the exercise of right of appeal by a third party. These provisions only say of informing the third party about the decision of the PIO to disclose the information in question specifying the third party’s right to appeal under Section 19, without any provision for stay to this decision of the PIO in case of appeal. Though it is generally understood that the power of stay is inherent, it will be better to provide in the rules that the PIO ought to ascertain before disclosure of such third party information that there is no stay by the appellate authority on this decision to make disclosure of such information of public interest.
Due to this, the right to appeal in such cases is frustrated. In order to give judicious treatment to the third party, the provision in Section 11(4) needs to be expanded to cover stay to the PIO’s decision by the Appellate Authority in case of appeal by the third party against the decision of the PIO.
The next issue has some legal overtones and hence it may affect the citizen unless the matter is clarified at the appropriate level. Section 19(1) of the Act refers to the appeal against the decision of the PIO. Here the crux of the matter is that legally an appeal lies against a decision only, positive or negative. There is an argument that in case where the PIO or first appellate authority does not respond to the request for information (which means no decision is given) how an appeal can lie in such a situation.
This argument is based on the legal concept that non-response means no decision is given. There is difference between cases before courts and before the PIO/AA because there is no time limit for compliance/decision for matters before courts while there is a time limit for matters before the PIO/AA. As such, this comparison cannot be attempted.
If we refer to Section 7(2) of the Act, we find that failing to give a decision is deemed as refusing the request and thus non-response is denial of information. This deemed denial of information, that is, negative decision is the decision in itself. Thus deemed refusal being a decision it is appealable. Since this is a rather new concept to the established legal thinking, it needs to be made positively clear by way of an explanation to the provisions in Section 7 and 19 to establish this concept.
Section 19(9) refers to notice of the CIC’s/ SIC’s decision, including “any right of appeal” to the complainant and the public authority. As the Act stands today, the CIC or SIC is second and last appellate authority in respect of matters of RTI pertaining to Centre or state governments, respectively.
As such, this provision of appeal on the Central or state Information Commission’s decision is intriguing. This third appeal provision needs to be properly elaborated through suitable provision in this section on appeals. Further, Section 19(10) makes no reference to any time limit for deciding appeals by the Central or state Information Commission. This leaves the citizens at the receiving end without any hope of decision by the commission in some timeframe, thereby reducing the effectiveness of this level. This lacuna needs to be removed.
The Act weighs heavily against the principle of decentralisation, the hallmark of democracy, in as much as all the second appeals and complaints lie with the Information Commissioner (Central or state). As already mentioned, the PAs are large in numbers and the first AAs too are large in numbers right from the village and district level to the state and national level.
Under the provisions of Section 18(c) the applicant can directly file the complaint as well as first appeal under Section 19 with the Information Commission in certain cases. Thus there are large numbers of complaints/appeals which the Information Commissions have to deal with. The applicants have to approach these centralised commission’s offices for justice impinging upon their time and energy. Such concentration of appeals at the commission level outweighs the commission’s ability to dispose of appeals.
The Act empowers only the Information Commissions to levy penalty. The first appellate authorities are not given any penal powers. The fallout of this arrangement is that the decisions of first appellate authorities are not likely to be taken seriously. Consequently, the burden of the Information Commissions increases and simultaneously the citizen has to approach the Information Commission normally at the state capital or national capital requiring a lot of effort, time and money.
This reduces the ability of the citizen to fully enjoy his right to information. Recently the Central Information Commission has decided to hear an appeal via video conferencing.
Similarly, it is seen in Maharashtra that the headquarters of the State Information Commissioners are at the divisional headquarters (not state capital) and they also conduct hearings at the district headquarters within the respective division while functioning as State Information Commissioner.
Though with technology and innovation such solutions can minimise the people’s hardships, it is desirable that First Appellate Authorities with independent status should be set up at the district level to expedite the justice and deepening of democracy. These district level Appellate Authorities may be vested with some penal powers. This will reduce the burden of the Information Commissions and the citizen too will get a better relief at nearer places.