RIGHT TO INFORMATION ACT: A COMPLETE VIEW

RIGHT TO INFORMATION ACT: A COMPLETE VIEW

Author: Ms. Himanjali Gautam,

Advocate at Supreme Court.

Introduction

Visualize a scenario where you want to express your views over a particular topic, for instance a government’s policy or any governmental scheme which according to you is not being executed in a fruitful manner but the government’s records on paper shows that their scheme or policy has done a remarkable job in eradicating the cause it was made for, you want to scrutinize the underlaid provisions and guidelines in that particular policy and for that examination you require a variety of data, which can only be accessed through a public authority or a Government’s officials, who are responsible for the execution of that specific policy or scheme.

You want to study whether the Government is working appropriately under the scheme/policy introduced by them or not, for expressing your views you first need to have the required data and information upon the subject, then only after analyzing that information, you can raise your voice against something which is questionable and unjust on the part of the Government, or provide a constructive criticism to the Government.

This was the foremost objective behind establishing Right to Information Act. This Act provides an efficient method for delivering relevant information so that a person can successfully use his right to freedom of speech and expression which is enclosed under Article 19(1)(a) of the Indian Constitution.

Right to Information Act, 2005: Evolution and implementation over the years:

The Constitution of India has experienced close to 70 years of constant evolution and modification. Over the years, it has been the main aim of Indian democracy and policy makers to function as of the people, for the people, and by the people. One of the many valuable initiatives taken to ensure greater transparency and accountability was the enactment of the Right to Information Act, 2005. With the underlining object to empower citizens, contain corruption, and fortify the government to work for the people, the Act recognizes the rights of the people to stay informed.

The advancement of a mere demand of information to the enforcement of the Act introducing it as a legal right every citizen is entitled to has undergone several developments. Since 1997, many state governments have made efforts in this regard and passed legislations laying down the rules and procedures for seeking information. Around the 1980’s, a few protests set forth the demand for the government to produce necessary documents for the citizens perusal. As early in 1986, in Mr. Kulwal v. Jaipur Municipal Corporation[1] (1986), the Supreme Court directed that Freedom of Speech and Expression under Article 19 (1)(a) of the Indian constitution enables the Right to Information. Moreover, Mazdoor Kisan Shakti Sanghatan (MKSS) was an organization that contributed significantly for RTI to come into existence.

In 1997, Tamil Nadu became the first state to have passed a law concerning the right to information, namely Tamil Nadu Right to Information Act 1997. However, subsequently these demands and efforts were considered, and the central Freedom to Information Act, 2002 was passed in both houses of the parliament. Certain amendments were formulated to the Act and the UPA government then tabled RTI in 2004. The National Campaign for People’s Right to Information (NCPRI) recommended some changes to the existing 2002 Act. Furthermore, the existing laws in different states were altered and then Right to Information Bill was introduced in 2005 with changes.

The Right to Information Act (RTI) was enacted on 12^th October, 2005, by the government of India, and was eventually amended to strengthen its implementation and resolve emerging conflicts. The discourse of this right is embedded in Article 19(1)(a): Freedom of Speech and Expression and Article 21: Right to Life and personal liberty of the Indian Constitution. It applies to all States and Union territories of India including Jammu and Kashmir. This Act provides the right to every citizen of India to request for any information, which can be of public knowledge from the Public Authorities[2]. Such a request must be provided with the required information within 30 days of receiving the application in the cases where the information which is demanded is related to the right to life and personal liberty then the information has to be sent within 48 hours of the application filed.

However, the information sought must not be related to defense, national security, or personal details. RTI is a fundamental right of every citizen of India. The objective of this act is to empower the citizens, promote transparency and accountability in the working of the government and make the citizens informed about the activities of the government. It is a tool to fight against corruption, a method of enforcing the right to freedom of speech and expression. The act mandates the public authorities to computerize their record in certain categories so that the information sought by the citizen can be processed quickly.

Aruna Roy has played a crucial role in the forming of the bases of the RTI act, she is the mastermind behind the enactment of this act. Various campaigns for the enforcement of the right of the poor and marginalized has been initiated by her, generally including Right to work and Right to food.

Having completed nearly twelve years of existence, the Act did not undergo many amendments. However, the Modi government introduced the Right to Information (Amendment) Bill, 2019. The key features of the amendment primarily establish changes in the term of commissioners, determination and deductions of salary, which is briefly discussed in this article.

The necessity for having Right to Information:

We live in a democracy where people elect their own Government and expect it to work for the welfare of the nation. Freedom of information encourages transparency, accountability and virtuous governance. Propagation of information also raises public participation in decision-making policies of the government. No democracy can function well without freedom of information and hence access to information is a basic and fundamental right. RTI is a law which has the capacity to bring the necessary changes in the system.

Information of any public owned institution, body or office belongs to the people of India and general public residing within the territories of India. As a republic country, the government acts only as a representative of the people. Thus, there exists RTI but it is expected that there should not arise the need to exercise RTI because the government should be proactive in providing access to information at avail. A government that on its own encourages the proliferation of information on garners trust amongst its people.

Information Commissions established under the Right to Information act

Chief information commission was set-up under this act at the central level and The State information commissions were inaugurated at state levels. Chief Information commissioner is the head of the commission at central level and State Chief Information commissioner is the head of the commission at state levels, both these heads are assisted by 10 other Information Commissioners. Currently Bimal Julka is our Chief Information Commissioner since February 19, 2020. Information commissioners at the central level are appointed by the President, on the recommendation of a committee comprising of Prime minister, the leader of opposition in the Lok Sabha, and a Union Cabinet minister. Whereas, at the state level the commissioners are appointed by the Governor on the suggestion of a committee consisting of Chief Minister, the leader of the opposition in the Legislative Assembly, and a State Cabinet Minister.

The appointment of the Information commissioners at both central and state level is carried out in an unbiased and just manner; the head of the opposition is also included in the committed for suggesting the names of the information commissioner to ensure that the purpose behind instilling these commissions is served appropriately.

How to file an RTI

It is essential to draft an RTI in an effective way to fetch the desired information, if your RTI application is too long and contain several questions and long paragraphs then in such cases the access to the information can get delayed. One must be careful while drafting an RTI, it should be short and to the point, you are not obliged to include the reason behind you demanding for a particular piece of information. If you have several questions to ask then instead of listing them all in a single RTI it is advised to file multiple RTIs so that all your questions get answered within the stipulated time, it is preferable to include 6 six questions in a single RTI.

Offline filing of an RTI

• Firstly, identify the department or ministry in which you wish to file an RTI and whether it comes under the scope of local, state or central government, and then find out the Public Information Officer of that department/ ministry.
• Then write an application, several states have a specific prescribed format for such applications and many don’t. The language of the application can be English, Hindi or any local language. Make sure you mention your phone number, residential address and email ID, so that the authorities can easily contact you regarding your RTI.
• Address the application to the concerned Public Information Officer /Assistant Public Information Officer, correctly and properly.
• Mention that you are seeking this information under Right to Information act, 2005, section 6(I).
• Once the application is complete, do not forget to mention the date on the application and the details of the postal order of Rupees 10 which you need to attach along with the application. People below the poverty line are exempted but they must attach their Below Poverty Line (BPL) certificate.
• Sign the application and send it via speed post/registered post to the office of the concerned authority or hand it over to the concerned Public Information Officer /Assistant Public Information Officer personally.

Online filing of an RTI

• Firstly, identify the government and the authority from which you seek the information.
• Visit  http://rtionline.gov.in
• On the home page of the website either you can register or directly click on the “Submit Request” option.
• Go through the guidelines then click on the “I have read and understood the above guideline” checkmark and click on “Submit.”
• Fill out the form where you to choose the department of public authority in which you are filing and personal details.
• A nominal fee of INR 10 needs to be paid either by a credit or debit card, or through internet banking.
• Once the payment is done you will be provided a Registration ID along with the receipt. You must have the receipt for future reference. The Registration ID will provide you access to your application and the reply.

What to do if your RTI is rejected or unanswered

If the RTI that you submitted is left unanswered or the reply is unsatisfactory then in such cases one can approach the appellate authority. Appellate authority can also be approached in a situation when you have submitted your RTI application in a wrong department or ministry which is not bound to reply to your RTI, in such scenario the time frame for the reply of your RTI is 30-45 days but if you don’t receive any reply within 45 days of the submission then you can approach the appellate authority.

The time to file an appeal in the appellate authority is also of 30 days, if the RTI application is not answered or the answer is not in accordance to your questions mentioned in the application then you can file an appeal in the appellate authority within next 30 days, no additional fee is to be paid while filing an appeal. Appellate authority can also sanction penalty upon the Information commissioner if the authority finds out that the information was withheld wrongly.

You can file a second appeal in the Central Information Commission (CIC) if the answer to your first appeal was still unsatisfactory. CIC has 45 days to dispose off the information asked in the second appeal, second appeal must be filed within 90 days from the day when the reply of the first appeal was received by the appellant.

Constitutional provision for Right to Information

The preamble of the India Constitution describes India as a sovereign socialist democratic republic.  The interpretation of the rights conferred by the constitution thus has to take their colour from the democratic republic character of our body politic. The constitution being an instrument designed for securing the country’s governance as a democratic republic, our rights under the constitution, have to receive an orientation and meaning which can facilitate and effectuate this fundamental premise. It indicates the ability and capacity of any individual to circulate the ideas and information without interference from the state.

The Indian Constitution has an impressive array of basic and inalienable rights termed as fundamental rights contained in part-III. These include the right to equal protection of the laws and the right to equality before the law, the right to freedom of speech and expression, the right to life and personal liberty and various other rights. These are backed by the right to constitutional remedies that is, the right to approach the supreme court and high court under article 32 and 226 respectively, in case of infringement of any of fundamental rights. The state is not only under an obligation to respect the fundamental rights of the citizens, but also equally under an obligation to ensure conditions under which the right can be exercised.

The Right to Information falls under the ambit of two fundamental rights that is article 19(1)(a) which talks about right to freedom of speech and expression and Article 20 which encompasses right to life and personal liberty. Which means one can approach the Supreme Court and High Court under Article 32 and 226 if the desired information is not provided to the appellant even after second appeal made by him at the Central Information Commission.

Right to Information Act, 2019, Amendment Bill

Two major changes were made in the Right to Information Act, 2005, Section 13 and 16 of this act were amended.

Section 13 of the RTI act, 2005, decides tenure and salaries of the Chief Information commissioners and the Information Commissioners at central level, an amendment was made in this section which said that now the salaries and tenure of these information commissioners would be prescribed by the central government. The salary of a Chief Information Commissioner’s is the same as of a Chief Election Commissioner, additional 10 Information commissioners will have their salary equivalent to the Election Commissioners, but after this amendment the salary, terms of service and their tenure is going to be decided by the Central Government.

Similar amendments were made in Section 16 of the RTI Act, 2005, which talks about the tenure, salary of State Information Commissioners, their salary, tenure and terms of service will now be dealt by the Central government.

Another point which is to be focused upon here is that earlier there was a provision in the RTI act, 2005, which said that if any Chief Information Commissioner or Information Commissioner has held any government’s office earlier and is getting pension from that government’s office then the amount of pension that he is receiving will be deducted from the current amount of salary that he is earning, an amendment was brought in this clause as well saying that this point will now be decided by the government.

This amendment bill got passed in Lok Sabha as well as in Rajya Sabha, this bill was questioned and talked upon by various people because this bill was imposing a threat upon the freedom of the Information commissioners. The reasons why this bill was in controversies is because the tenure of the information commissioners under this amendment bill was to be regulated by the central government just as it happens in the case of police officers, the police officers who do not work in accordance with the politicians are transferred to some other place, similar condition can be seen in the case of Information commissioners if the power of setting their tenure is given to the government. Democracy can smoothly work only if all the bodies of the government are kept independent, any kind of influence of executive over the Information commissioners can devastate the main purpose of establishing this act or the presence of this act.

The Government on the other hand believed that all the amendments that they were trying to bring in the act, was to make this act even stronger.

Whereas to make this act stronger the government must avoid making such amendments in which the independence and working of any public official is influenced by any part of the government, The government must fill in the vacancies of Information commissioners, To make this act stronger the government must bring the political parties and NGO’s under the ambit of this act.

Measures needed to strengthen RTI:              

Reduce pendency: To begin with, there is a bulk of cases and appeals which are pending. In June 2019, more than 31,000 appeals were pending, over 9,000 of those pending for over a year. Similarly, out of 10 positions, four of the position of Information commissioner are vacant

Prune the exemption list: There is a continuous fall in the rank of India in RTI ratings. According to the report by the Canada-based Centre for Law and Democracy India’s rank falls drastically from second position in 2011 to eight position in 2018. According to section 8 of the RTI act, it lists ten exemptions which includes any information that may hurt national security, impede the process of ongoing investigations to cabinet papers and deliberations of the council of ministers.

Protect whistle-blowers: According to a tracker of assaults on RTI activists set up by the Commonwealth Human Rights Initiative (CHRI), a Delhi-based international non-profit, 84 RTI activists have been murdered since 2005 for seeking information on illegal construction, alleged scams in social welfare schemes, and corruption in panchayats. While seven activists have committed suicide, more than 350 have either faced assault or harassment. India needs to introduce a long term plan to prevent the activists from these assaults.

CIC as a constitutional body: The currently statutory body must be made a constitutional body to uphold its sanctity.

Political parties under RTI: All political parties Promises to serve the interest of public but hesitate to share the information with the citizen. They must be put within the ambit of RTI.

• The RTI paves ways for millions of users who will easily enjoy their democratic rights creatively and to dismantle exclusive power.
• Independent structures are made to regulate and monitor the government which are needed for a democratic state.
• The Separation of powers and checks and balances between the different bodies of government underscores this democratic independence.
• So, when power is centralised, the freedom of expression is threatened which can lead to the decline of democracy.
• The need of the hour is the Government should take into account the concerns of the experts and should arrive at an amicable solution, which ensures sufficient independence to the Commission.

Major Judgments:

In Girish Ramchandra Deshpande v. Central Information Commission (2012)[3], it was held that CIC was right in denying the information of the third-party personal matters regarding his career and also the copy of return of assets and as per the provision of RTI Act under Section 8(1)(j).

In Adesh Kumar v. Union of India &Ors. (2014)[4] the Delhi High Court held that it is immaterial whether the citizen is seeking information that is relevant or necessary. The Right to Information Act implies that every citizen has a right to information and this cannot be denied to anyone on the ground of the information sought is irrelevant.

In Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi(2012)[5],it was held by the Supreme Court that CIC is not bound to disclose the information regarding the names, designation and addresses of the subject experts present in the Interview Board as the transparency is related to the marks whereas individual names hardly hold any relevancy in this matter.

In Shahzad Singh v. Department of Posts (2018)[6], it was directed that information cannot be denied on the grounds that the file sought is missing or cannot be traced.

In Canara Bank v. CS Shyam (2008)[7], Supreme Court held that the personal information of an employee cannot be disclosed as it is personal in nature and exempted under Section 8(1)(j) of the RTI Act, 2005.

In State of Uttar Pradesh v. Raj Narain (1975)[8], a citizen sought disclosure from government officials of the “blue book” relating to the rules and instructions for the protection of the Prime Minister while traveling. The petitioner claimed that the documents would reveal how the government had engaged in corrupt practices and violated limits on amount of money that may be used in election campaigns. The Court held that if the public interest outweighs the secrecy of government officials then the court may order to disclose the documents regarding the security arrangements in the court proceedings as long as the disclosure does not endanger his or her security or public order.

Conclusion

India is a Democratic Republic where people elect their representatives to work for their betterment and welfare of their nation. The people of India are the makers and the breakers of the government which existed in India after independence, public opinion is an essential element in a Democracy. An opinion is derived after gaining knowledge over a particular subject and knowledge is gained after accessing the and analyzing the information, hence to have an opinion over a subject or to provide a constructive criticism to any policy or scheme by government which according to you is not working efficiently, you must have the required information regarding that policy or scheme.

The main purpose behind enacting Right to Information was to provide the information of the public authorities to the people of India. Every citizen of India is entitled to the Right to Information and it constitutes one of the milestones in legal history as it ensures representative democracy while increasing transparency of the Government body. It is necessary to bring a change, and to let the information officers and even the police officials independent, so that the security of our country and its citizens is ensured and accountability of the government will get a boost. The government was elected by the people of India, and it is essential to ensure that the government continues to work as of the people and for the people.

 

[1] 1987 (1) WLN 134.

[2] The Right to Information Act, 2005. Sec 2, cl. h

[3](2013) 1 SCC 212

[4]W.P.(C) No.3543/2014

[5](2012) 13 SCC 61

[6]CIC/POSTS/A/2016/299355

[7](2008) 2 MLJ 733

[8]1975 AIR 865, SCR (3) 333

 

Brief bio about author:

Adv. Himanjali  Gautam hails from  ‘Jalesar’, (Utter Pradesh). She is a practicing Advocate at Supreme Court, having experience of 8 years. Himanjali graduated in Political Science from Daulatram College, Delhi University and thereafter completed her LL.B  from Campus Law Centre , Delhi University and finally her Masters of Law from OPJS University, Rajasthan.

After her academic pursuit she went on to enroll as an Advocate at Bar Council of Delhi and further as Member of Supreme Court Bar Association during her time as an Advocate she had worked as an Asoociate with Mr. Pravin H. Parekh (Senior Advocate, SC) & Mr. Rajiv Nanda (Standing Counsel , Govt. of Uttrakhand) .As an Independent practitioner she represented various firms and had briefed some of the most sought after Legal  such as Mr. Ram Jethmalani, Mr. Harish Salve & Mr. Kapil Sibbal.

Himanjali had also contributed to the society as a social activity through various seminars and programmes that she organized for legal awareness regarding rights of women, and she still continues to do so.

Apart from working as a lawyer under constitutional obligations, also led various campaigns for the BJP in the 2019 Lok Sabha Elections and legal awareness initiatives in remote locations of Uttar Pradesh and Haryana.

The proficiency extends to various other fields which assess to be an enthusiastic chess player and a Femina Style Diva 2013 finalist. I had an active involvement as a Speaker at various conferences on Inclusive Growth and worked on Civil, Criminal, Revenue, Company, Competition, Environment Law and PIL cases, also authored several articles and appears frequently on various national news channels on issues of national importance.