RIGHT TO INFORMATION ACT 2005

MEANING:
Information is the currency that every citizen requires to participate in the life and governance of society. The greater the access of the citizen to information, the greater would be the responsiveness of government to community needs. Alternatively, the greater the restrictions that are placed on access, the greater the feelings of `powerlessness and alienation. !ithout information, people cannot adequately e"ercise their rights and responsibilities as citizens or ma#e informed choices. $overnment information is a national resource. %either the particular government of the day nor public officials create information for their own benfits.The &ight to Information is the right of the public to #now how certain decisions are ta#en, how the e"penditure is incurred by the public authorities and the various aspects of functioning of a public authority.

The &ight to Information Act was passed in India by 'arliament on () *une +,,) and it came into force on () -ctober +,,).The &TI has made information accessible to the public which they were earlier deprived off. The basic aim of the act is to bring about openness, transparency and accountability of the government. This act allows the public to see# information from any governmental department, thereby increasing accountability and the transparency of the establishment and allowing it to share power with the humblest and poorest of the society.%ow India has .oined the si"ty odd countries around the world which have this provision in the /onstitution. There are 0, countries waiting to .oin this group of enlightened democracy. Transparency is an important discipline in governance. &ight to Information is the bac#bone of a democracy. The 1tate is given immunity from this rule on certain occasions in order for it to effectively carry on its wor#. The 1tate by virtue of being granted certain privileges has been given certain e"ceptions to present all evidence before the /ourt. In India too statutory safeguards e"ist for ensuring government secrecy.

Sources of the Right to Inform tion

2irst, is the constitutional basis derived from Article (34(5 4a5 of the Indian constitution which states that 6All citizens have the right to freedom of speech and e"pression7. Indias 1upreme /ourt from the case of 8ennett and /o 9s the :nion of India, (3;<, read it as an integral element of the purpose of Article (3. As the ma.ority opinion then put it,7 freedom of speech and e"pression includes within its compass the right of all citizens to read and be informed7. In state of :.' 9s &a. %arain,(3;) AI& =>) , (3;) 1/& 4<5 <<<, the ape" court of the country stated, 6In a government of responsibility li#e ours where the agents of the public must be responsible for the conduct there can be but a few secrets. The people of this country have a right to #now every public act, everything that is done in a public way by their public functionaries. They are entitled to #now the particulars of every public transaction in all its bearings.7

The second basis for &TI is democratic. India is a democracy where the government is of the people, by the people for the people. The public servants derive power from the people as they are either elected by the people directly or indirectly? or nominated by the people directly or by representatives of the people. Therefore they e"ercise power on behalf of the people.Thirdly, the /onstitution guarantees, under Article (34(54a5, to every citizen the freedom of speech and e"pression. In order to e"ercise the freedom of speech and e"pression effectively, you need an informed public opinion. The right to #nowledge includes the right to information. The right to information thus flows out of freedom of speech and e"pression. The right to information Act, +,,) is not the repository of the &ight to Information. Its repository is the constitutional right to free speech and e"pression. The &ight to Information Act is merely an instrument that lays down the statutory procedure in the e"ercise of this right. The fourth basis for &TI is logical. The /itizens pay ta"es. They have a right to #now how their money is being spent, by whom, when and where their money is being spent.

!i"er # n$ conser% ti%e on the Right to Inform tion Act

The proponents of the liberal view have argued information as defined under the Act includes opinions and advices and is therefore broad enough to cover file notings. 2ile notings are essentially to understand not merely the fairness of the decision but also the decision@ma#ing process. /ontrarian viewpoints upon consideration of which the $overnment decides become clear once the decision@ma#ing process is made public. If merely the final decision is conveyed, the rationale and logic behind the decision may not become apparent. Any unfair influence or collateral considerations in decision@ ma#ing will not be #nown. The reasons why a more logical point has been overruled will never be #nown. The right to information will itself be incomplete without notings and observations on various files given by officials being made public. In our system of governance, we e"pect the civil services to advise the political e"ecutive freely and ob.ectively.

It will have to be made #nown why in certain cases this professional advice has not been accepted. $overnments are e"pected to act fairly and rationally. All actions must be informed by reason. Aecisions must necessarily be in the public interest and not suffer the vice of arbitrariness. 1upporters of the conservative view, on the other hand, have sought to contend that the original Act never conferred the right to #now the notings, advices, and opinions. The amendment reaffirms that position with an e"ception that decisions relating to various social sectors would now be made more transparent. The civil service has consistently been advising the political e"ecutive that since it is under an obligation to advise the political e"ecutive correctly and ob.ectively, the prospect of a public gaze on its advice would deter it from ta#ing strong positions on various issues. If bureaucratic notings are to be made public, officials would tend to be non@committal? or at times they would merely place alternative viewpoints before the decision@ma#ing authority for its direction. $overnance may suffer on this count.

The Go #s of the Right to Inform tion Act

-ne of the principle aims of administrative law is to ensure the effective functioning of the government and the state in an accountable and transparent manner. Administrative law strives to ensure that the government is responsible and answerable to the people. Aemocracy is built upon the fundamentals of an informed citizenry and transparence in information which are vital to its functioning and also to contain corruption and to hold governments and their instrumentalities accountable to the governed. This belief forms the bedroc# of the &ight to Information Act. The preamble to the &ight to Information Act specifies that the Act has been enacted for establishing the practical regime of &ight to Information for citizens in order to secure access to information under the control of public authorities, and to promote transparency and accountability in the wor#ing of every public authority. The preamble, however, also refers to the e"emptions and says that, in some cases, revelation of information in actual practice is li#ely to conflict with other public interests including efficient operations of the $overnments, optimum use of limited physical resources and the preservation of confidentiality of sensitive information.

Terms

use$

in

the

Right

to

Inform tion Act

&Com'etent Authorit(& me ns)

4i5 the 1pea#er in the case of the Bouse of the 'eople or the Cegislative Assembly of a 1tate or a :nion territory having such Assembly and the /hairman in the case of the /ouncil of 1tates or Cegislative /ouncil of a 1tate? 4ii5 The /hief *ustice of India in the case of the 1upreme /ourt? 4iii5 The /hief *ustice of the Bigh /ourt in the case of a Bigh /ourt? 4iv5 The 'resident or the $overnor, as the case may be, in the case of other authorities established or constituted by or under the /onstitution? 4v5 The administrator appointed under article +<3 of the /onstitution?

DInformationD means any material in any form, including records, documents, memos, e@mails, opinions, advices, press releases, circulars, orders, logboo#s, contracts, reports, papers, samples, 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 other law for the time being in force?D'rescribedD means prescribed by rules made under this Act by the appropriate $overnment or the competent authority, as the case may be? D'ublic authorityD means any authority or body or institution of self@ government established or constitutedE 4a5 by or under the /onstitution? 4b5 by any other law made by 'arliament? 4c5 by any other law made by 1tate Cegislature? 4d5 by notification issued or order made by the appropriate $overnment,and includes anyE 4i5 body owned, controlled or substantially financed? 4ii5 non@$overnment organisation substantially financed, directly or indirectly by funds provided by the appropriate $overnment? D&ecordD includesE 4a5 any document, manuscript and file? 4b5 any microfilm, microfiche and facsimile copy of a document?

4c5 any reproduction of image or images embodied in such microfilm 4whether enlarged or not5? and 4d5 any other material produced by a computer or any other device?

D&ight to InformationD means the &ight to Information accessible under this Act which is held by or under the control of any public authority and includes the right toE 4i5 inspection of wor#, documents, records? 4ii5 ta#ing notes, e"tracts or certified copies of documents or records? 4iii5 ta#ing certified samples of material? 4iv5 obtaining information in the form of dis#ettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device?

*ROCE+,RE OF RTI:

-. /h t is the A''#ic tion *roce$ure for re0uesting inform tion1 (. Apply in writing or through electronic means in Fnglish or Bindi or in the official language of the area, to the 'I-, specifying the particulars of the information sought for. +. &eason for see#ing information are not required to be given? <. 'ay fees as may be prescribed 4if not belonging to the below poverty line category

2. /h t is the time #imit to get the inform tion1 (. <, days from the date of application +. 0= hours for information concerning the life and liberty of a person <. ) days shall be added to the above response time, in case the application for information is given to Assistant 'ublic Information -fficer. 0. If the interests of a third party are involved then time limit will be 0, days 4ma"imum period G time given to the party to ma#e representation5. ). 2ailure to provide information within the specified period is a deemed refusal. 2. /h t is the fee1 (. Application fees to be prescribed which must be reasonable.

+. If further fees are required, then the same must be intimated in writing with calculation details of how the figure was arrived at? <. Applicant can see# review of the decision on fees charged by the 'I- by applying to the appropriate Appellate Authority? 0. %o fees will be charged from people living below the poverty line ). Applicant must be provided information free of cost if the 'I- fails to comply with the prescribed time limit.

3. /h t cou#$ "e the groun$ for re4ection1 (. If it is covered by e"emption from disclosure. +. If it infringes copyright of any person other than the 1tate

Fe tures of the Right to Inform tion Act

This act e"tends to the whole of India e"cept the 1tate of *ammu and Hashmir. :nder the &ight to Information Act, +,,), /entral Information /ommission and 1tate Information /ommission have been set up. These are the supreme appellate authorities to e"ercise the power conferred on and to perform the functions assigned to under this Act. In all administrative units of the

$overnment there shall be /entral 'ublic Information -fficer or 1tate 'ublic Information -fficer as the case may be for providing information to the person requesting under the Act. A person who desires to obtain information shall ma#e a request in writing or through electronic means of communication to the /entral 'ublic Information -fficer or 1tate 'ublic Information -fficer of the concerned public authority along with prescribed fees. The /entral 'ublic Information -fficer or the 1tate 'ublic Information -fficer shall within <, days of the receipt of such request either provide information to the person or re.ect the request. If he fails to give any decision it will be presumed that he has refused the request.A second appeal may be preferred to the /entral Information /ommission or the 1tate Information /ommission established under the Act. Aecision of the /ommission is final and binding. Thus a hierarchy has been set up within the public authority and the power of court has been curtailed.

%ow the court is not entitled to entertain any suit, application or other proceeding in respect of any order made under this Act and no such order shall be called in question in court. Thus .urisdiction of the court cannot be

invo#ed because there e"ists a statutory bar under 1ection +< of the Act. %ow &ight to Information has become a statutory right and any person aggrieved with the decision of the /entral 'ublic Information -fficer or the 1tate 'ublic Information -fficer has statutory remedy under the Act. Be does not have to #noc# the door of the court.

Restrictions Im'ose$ "( the Act:

The Act itself is self@restrictive in nature. The Act does not ma#e the &ight to Information an absolute right but imposes restriction on this right. 1ection =4(5 of the Act deals with e"emption from disclosure of information. The section says that 6%otwithstanding anything contained in this Act, there shall be no obligation to give any citizen, I 4a5 information, disclosure of which would pre.udicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the 1tate, relation with foreign 1tate or lead to incitement of an offence? 4b5 Information which has been e"pressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court?

4c5 Information disclosure of which would cause a breach of privilege of 'arliament or the 1tate Cegislature? 4d5 information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information? 4e5 Information available to a person is his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information? 4f5 Information received in confidence from foreign $overnment? 4g5 Information, disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes? 4h5 Information which would impede the process of investigation or apprehension or prosecution of offenders? 4i5 /abinet papers including records of deliberations of the /ouncil of Jinisters, 1ecretaries and other officers? 'rovided that the decisions of /ouncil of Jinisters, the

reasons thereof, and the material on the basis of which the decisions were ta#en shall be made public after the decision has been ta#en, and the matter is complete, or over? 'rovided further that those matters which come under the e"emptions specified in this section shall not be disclosed? 4.5 Information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which cause unwarranted invasion of the privacy of the individual unless the /entral 'ublic Information -fficer or the 1tate 'ublic Information -fficer or the appellate authority, as the case may be, is satisfied that the larger public interest .ustifies the disclosure of such information? 1ection 3 of the Act says that a /entral 'ublic Information -fficer or a 1tate 'ublic Information -fficer may re.ect a request for information where such a request for providing access to information involves an infringement of copyright subsisting in a person other than the state. 1ection +0 lays down that the Act has no application to certain organizations. These are the intelligence and security organizations specified in the 1econd 1chedule of the Act, as organizations established by the /entral $overnment.

The Act also cannot be applied for certain intelligence and security organizations established by the 1tate $overnment as that $overnment may, by notification in the -fficial $azette specify. Information pertaining to the allegations of corruption and violation of human rights shall not be e"cluded under this 1ection. -nly one e"ception is that if the information in respect of violation of human rights is there, after obtaining the approval of /entral Information /ommission such information shall be provided. The intelligence and security organizations established by the /entral $overnment not under the perview of the Act (. Intelligence 8ureau +. &esearch and Analysis wing of the /abinet 1ecretariat <. Airectorate of &evenue Intelligence 0. /entral Fconomic Intelligence 8ureau ). Airectorate of Fnforcement >. %arcotics /ontrol 8ureau ;. Aviation &esearch /entre =. 1pecial 2rontier 2orce 3. 8order 1ecurity 2orce (,. /entral &eserve 'olice 2orce

((. Indo@Tibetan 8order 'olice (+. /entral Industrial 1ecurity 2orce (<. %ational 1ecurity $uards (0. Assam &ifles (). 1asastra 1eema 8al (>. /IA 1pecial 8ranch, Andaman and %icober (;. The /rime 8ranch I /IA I /8, Aadra and %agar Baveli (=. 1pecial 8ranch, Ca#shadweep 'olice (3. 1pecial 'rotection $roup +,. Aefence &esearch and Aevelopment -rganisation +(. 8order &oad Aevelopment 8oard ++. 2inancial Intelligence :nit, India.

Caws &elating to the &estriction on /ommunication of Information The /onstitution is the supreme law of the land and any law which ultravires the /onstitution or made in violation of it is void. Article (34(54a5 is the main source of &ight to

Information and Article (34+5 puts reasonable restriction on it. It is not wise to ma#e access to information absolute for the security of the state and to maintain tranquility and harmony within the country some facts K information must be #ept unpublished. :nder Article (34+5, the state is empowered to ma#e any law which imposes reasonable restrictions on such right on the grounds of sovereignty and integrity of India, security of the state, friendly relation with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. The All India 1ervice 4/onduct5 &ules, (3>= prohibits unauthorized communication of information by member of All India 1ervices.:nder the Atomic Fnergy Act, (3>+ the /entral $overnment is empowered to declare any information as restricted information which cannot be made public or published.

The /entral $overnment may by order restrict the disclosure of information relating to atomic plant, mode of operation, substances, mode of acquisition of materials, transaction, purchase, theory, design, construction, research, technology etc. of an atomic plant. 1ections (+< to (+> deals with communications of which evidence

cannot be given. 1ection (+< says that no one is permitted to give any evidence derived from unpublished official records relating to any affairs of 1tate, e"cept with the permission of the head of the department concerned who shall give or withheld such permission as he thin#s fit.

:nder this Act official communication is immune from disclosure. 'ublic officer cannot be compelled to disclose official communication made to him in official confidence, when he thin#s that public interest would suffer by such disclosure. Information as to the communication of offence and professional communication are also e"empted from disclosure.

1ection )+ of the /ompetition Act,+,,+, says that information relating to any enterprise , being an information which has been obtained by or on behalf of the /ommission , without the previous permission in writing shall not be disclosed. In the 8ureau of Indian 1tandard Act, (3=>, it has been laid down that any information obtained by an inspecting officer or the 8ureau from any statement made or information supplied or any evidence

given or from inspection made under the provision of this Act shall be treated as confidential.

The /entral /ivil 1ervices 4/onduct5 &ules,(3>0, also prohibits unauthorized communication of information. 8y virtue of Article (3 4+5, the 1tate has made many laws li#e The -fficial 1ecrets Act which prohibits disclosure of official communication and enacted restrictive provisions in other laws on communication of information. In public dealings and state affairs high secrecy was used to be maintained by public officers as part of their duty. /onfidentiality remained a condition of public service and violation of it attracts penalty including dismissal.

No Right to Inform tion in the *ri% te Sector:

The &ight to Information Act, +,,) is applicable in respect of public authorities established, owned or substantially financed by the /entral $overnment, 1tate $overnment, administration of :nion Territories, panchayat, municipality or local bodies. 1o far as private sector is concerned li#e partnership business, private companies and factories,

multinational companies which have their head offices outside India, %$-s not financed by the government etc. the Act remains silent. Therefore private bodies or authorities are not under obligation to furnish any sort of information if as#ed for. The Act is operative in the public sector only. The Act has no application in the private sector.

!oo'ho#es in the Right to Inform tion

There are certain loopholes in the &ight to Information. These loopholes have been identified within this short period of time of application. 2irstly, the official mindset does not seem in favour of sharing any information.

As per 1.'. 1athe, the main obstacle is the attitude of the bureaucracy which is accustomed to wor#ing in closed corridors. !hile most public departments may not say 6no7 directly to any information sought, but there are enough grounds in the Act on the basis of which information wont be given or would be delayed, viz prete"t of lac# of manpower to compile the data or finalize the accounts, or safety of the document, etc. The researcher feels that this discretion that has been conferred upon 'I-s may be used

against the purposes of the Act, unless efforts are made to ma#e the official mindset conducive to sharing information. 1econdly, The Act stipulates a penalty in case of information is denied without adequate reasons, but it is not harsh enough. There may can be be cases where by administrative accountability dispensed

deliberate act of government in lieu of paying this meager amount. &ather denial to provide information should be made a much more serious offence with a heavier penalty, and if the denial is malafide then it should be made a ground for dismissal as well. Thirdly, e"press bar on *urisdiction of court gives a freehand to all administrative decisions under the Act. Although an appeal may lie to the /ourts for violation of fundamental rights, there must be a provision for appealing to the court, in line with a similar provision that e"ists in the 8ritish 2reedom of Information Act. 2ourthly, the Act does not help people other than citizens. At least %&Is and concerned foreigners should be allowed to access to documents required so as to set a good international trend. Joreover, courts have interpreted &ight to Information in preview of Article +( of the

/onstitution which is guaranteed to each and every person irrespective of citizenship. 2ifthly, under 1ection ;435 information may be declined if it disproportionately diverts the resources of the public authority. This provision gives a lot of discretion to the public authorities and safeguards must be provided to ensure that it is not misused. There also should be a provision to identify genuine requests so that the public authorities are not burdened unnecessarily.

Conc#usion
In a society that suffers the curse of both arbitrariness and corruption, sunlight could be the best disinfectant. The advantages of transparency are far too many. 'ublic interest in transparency will override the relative discomfort of the civil service against public disclosure. It is this overweighing public interest that has persuaded media opinion, public opinion, and even parliamentary opinion to scoring in favour of greater transparency. In any case, it

may be difficult for the $overnment with the evolution of constitutional law to contend today that advices and opinions can still be #ept as secret.