Indian Right To Information Act

The Right to Information Act, 2005 provides a mechanism to the ordinary Indian citizen to access
information relating to public authorities. The Act creates an obligation on part of the Government to
provide information to the citizens of India. It sets out a system, including Public Information Officers
(PIOs) and Central and State Information Commissions who must regulate this flow of information. The
Commissions under s.18, also have the power to hear grievances of the people with respect to the
procurement of information. It also sets a time-limit within which such applications must be answered.
Further, it provides certain exemptions to the citizen’s right to information.

The Act defines ‘information’ as any material in any form, including records, documents, memos, emails,
opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples,
models, data materials 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. [2] Thus the definition of
information is wide, and pertains to information with public authority, about the State and its
functionaries or about any private authority that the public authority is authorized to access. Clearly,
with such knowledge, great power is placed in the citizens’ hands and it becomes difficult for the
Government to take excesses. However, with great power comes great responsibility and citizens must
use this legislation with caution so as not to misuse its beneficial provisions.

This paper seeks to look at the pros and cons of access to information, with emphasis on the Right to
Information Act, 2005. In furtherance of this objective, the paper has been divided into two parts: the
first deals with the pros and cons of a system that provides access to information. It also looks at the
barriers that exist to the free flow of information in India. The second part studies the Act itself, with
emphasis on how the Act deals with the cons of proving information. In order to understand the
effectiveness of the RTI, the paper looks at the exceptions provided in the act and at the way it has been
administered.

Access to Information—Issues

Pros of a system of governance that provides access to information

There are a number of reasons for a legal system that provides for access to information. First and
foremost, access to information is central to the idea of a democratic society. Governments have a vast
amount of power, and power tends to corrupt. In a democratic society, the government should be
accountable to the citizens and this is not possible if the citizens do not have information about the
functioning of the government. The actions and policies of a government affect the economic interests
and personal liberty of individuals that make up a nation. The government thus, should use this vast
power to act for the public good and not for the private gain of the few individuals who hold such
power. Therefore an open government allows the people keep a check on the abuse and misuse of
power by the Government. [3]

Other than working towards governmental accountability, public disclosure of information furthers
democracy by facilitating people’s participation. It enables interested citizens to contribute more
effectively to the debate on important questions of government policy. [4] Moreover, if the people are
to choose their government every five years, they must have information about the performance of the
government. Giving the individual access to government information ensures that people will make an
informed choice when they select those individuals who will make policy decisions about their lives. [5]

If the government can be held accountable by the citizens, or if people can participate effectively, it
leads to fairness in the administrative decision-making process. [6]

Before the RTI was passed, the Supreme Court held, in a wide variety of cases that the right to
information is a fundamental right. A study of these cases exemplifies the benefits of a system which
provides access to information. In Indian Express Newspaper (Bom) Pvt. Ltd. v. Union of India [7] , the
Supreme Court discussed the importance of freedom of press (which is integral to freedom of speech
and expression) and stated that it included the freedom of information of citizens. The Court opined
that the constitutional guarantees of freedom of speech and press are not for the benefit of the press so
much as for the benefit of the people. The purpose of the press is to advance the public interest by
publishing facts and opinions without which a democratic electorate cannot make responsible
judgments. The author submits that without freedom of information, the press will not be able to
perform its duty of acquiring and disseminating correct and logically true facts to the common man.
Indeed, in order to form opinions that a citizen can express, it becomes vital that he have information on
that subject.

In Union of India v. Association of Democratic Reforms [8] , the Supreme Court upheld the voter’s right
to know about the candidates contesting elections, since it believed that adult franchise and general
elections are the minimum requirement of the Indian participative democracy. The Court stated that,
“…the little man of this country would have basic elementary right to know full particulars of a candidate
who is to represent him in Parliament where laws to bind his liberty and property may be enacted."
Similarly, the right to information is implicit in Article 21 of the Constitution. In D.K. Basu v. State of
West Bengal [9] , the Court laid down guidelines to protect the fundamental rights of arrested persons.
Among other things this included his right to be informed of who is arresting and interrogating him and
why and also his right to have a friend or relative informed of the arrest, as soon as is practicable.

These cases illustrate how access to information in a society results in a healthier democracy and
improved participation. The author submits that this leads to improved decision making and in effect,
better allocation of the society’s resources which results in greater economic and social well-being of
the people.

Barriers to Information

In order to understand the need for (and also the faults of) providing access to information, one must
first study the barriers that exist to the free flow of information in India.

The Official Secrets Act, 1923, originally enacted during the time of the British to protect against spying,
now stands as a barrier to the flow of information from the Government to the citizens. Section 5 of this
Act has a wide ambit. It virtually prohibits the disclosure of any information which the government
considers to be confidential and makes it a punishable offence to violate these rules.

The All India Services (Conduct Rules), 1968, through s.9, which provides that civil servants shall not
divulge official information, restrict the disclosure of official information.

S.123 and s.124 of the Indian Evidence Act, 1872 have placed restrictions on using official information as
evidence. S.123 prohibits the use of unpublished official records without appropriate permission while
s.124 disallows the compelling of an officer to disclose communications made to him in official
confidence. In an effort to circumvent this privilege, courts adopted the practice of inspecting the
documents in-camera and if it was found that their disclosure might adversely affect public interest, the
claim for non-disclosure was upheld. [10]
Lastly, certain acts contain provisions against the disclosure of information. For example, the Atomic
Energy Act, 1962 places severe restrictions on the releasing of information about atomic plants. Sathe
contends that these restrictions are so wide that the population surrounding a reactor cannot ask for
what hazards it must take precautions against. [11]

These provisions prevent the common man from accessing information about the Government.
Designed to enable the state to protect its secrets, they can be used to hide inefficiencies and errors on
part of the state from public scrutiny and accountability. In such a scenario, a vast amount of
information may be shielded from the public.

Cons of Providing Information

However, one must remember that these barriers exist for a reason. In actual practice, the unrestrained
revelation of information can conflict with other public interests such as efficient operations of the
Government, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive
information. [12] The costs of compiling and providing information are huge. Moreover, certain
operations of the Government, such as defense, cannot always be open to public scrutiny.

Does the citizen’s right to information include the disclosure of confidential government documents. For
example, should a sensitive document containing details about India’s nuclear projects be made
available to the public. Obviously there is public interest in its disclosure since the taxpayer’s money is
being utilized for it and the people have a right to know how it is being done. However, in the interest of
the nation’s security, would it not be safer to keep such details confidential? Bhagwati J. very aptly
termed this question as a conflict between public interest in the fair administration of justice and public
interest in the non-disclosure of documents. [13]

The Right to Information can collide with the Right to Privacy. The protection of privacy principle holds
that that individuals should, generally speaking, have some control over the use made by others,
especially government agencies, of information concerning themselves. Thus, when an applicant seeks
access to government records that contain personal information about certain identifiable individuals,
these individual’s right to privacy conflicts with the applicant’s right to information. [14]

A question that arises is whether access to information can be extended to accessing information from
private organizations. If yes, then where does one draw the line between invasion of privacy and the
right to information. With the passing of the RTI, in India private organizations too can be scrutinized via
s.2(f) which defines information as including information relating to any private body which is accessible
by a public authority under any other law for the time being in force. Further, information can also be
sought from a non-Governmental body if it is financed substantially by the Government. [15] However,
in order to protect the privacy of such bodies, the Act treats them like any other third party and object
to the supply of information. [16]

Thus, one may conclude that unlimited access to information cannot be provided. It should be limited,
at least, for the following reasons:

the protection of the public interest (public security, international relations, monetary stability, court
proceedings, inspections and investigations),

the protection of the individual and of privacy, and

the protection of commercial and industrial secrecy.

In such cases, disclosure of information harms and does not further public interest.

Right to Information Act

The obvious advantage of the legislation is that it provides a system through which people can obtain
information. It is necessary to cast a specific duty on public bodies to provide information, and this can
only be done through a legislation that lays down these duties and recognizes the right of the citizen.
[17] However, the manner in which the Act deals with the disadvantages of providing information shows
whether the Act truly furthers public interest or not.

Dealing with the Cons

The Act, through s.8, attempts to deal with some of the problems that arise out of providing
information. A perusal of the section shows that access to information may be denied if the disclosure of
the information sought for affects the sovereignty and integrity of the nation, or affects foreign relations
with another country, or has been expressly forbidden by a court or Tribunal, or causes breach or
privilege of State Legislatures or the Parliament or which harms the competitive position of a third party,
or impedes the process of an investigation or invades the privacy of an individual or has been obtained
in a fiduciary capacity.

Thus, the Act provides a large range of exemptions. These exemptions can be used to restrict the flow of
sensitive information, but can also be misused to restrict the flow of information if it serves the interest
of the public authority. As a result, in order to understand whether the exemptions work for the benefit
of or to the detriment of the Right to Information, one must study the manner in which they are used by
the PIOs and the Commission. A few cases handled by the Commission are given below:

Information regarding a plan of and building restrictions around an Indian Air Force Station in Pune was
exempted from disclosure by the Commission as it could prejudicially affect national security. [18]

A request seeking for copies of the correspondence between the Ministry of External Affairs and the
Governments of the USSR over the disappearance of Netaji Subhash Chandra Bose was denied as the
disclosure of such information could affect relations with a foreign state. However, giving due
consideration to the applicant’s right to information, the Commission directed that the said
correspondence be examined by experts and if the experts are of the opinion that it would affect
relations with the Government of Russia, then the issue be settled only after a reference has been made
to the Government of Russia. [19]

Where the applicant sought the names and addresses of the buyers and sellers in the cases of
transactions of securities with the Reserve Bank of India, the information was denied on the ground that
such information is market sensitive and its disclosure would prejudicially affect the RBI’s competitive
position and also the market in government securities. Hence, it was furnished to the appellant without
disclosing the names of individual buyers and sellers. [20]

It must be noted that the term ‘personal information’ does not mean information relating to the
information seeker, but about a third party. If one were to seek information about his own case the
question of invasion of privacy does not arise. Therefore, the Commission directed the release of the
information sought by the appellant when it concerned his own company. [21]
These cases show that where ever possible, the Commission has made attempts to supply as much
information as it can, without affecting protected interests, to the applicants. However, notwithstanding
anything under the Official Secrets Act or any of the exemptions in s.8(1), a public authority may allow
access to information, if public interest in disclosure outweighs the harm to the protected interests. [22]
For example, human rights violation and corruption-related information falls within the domain of this
test and must be disclosed, even if attracts the exemptions in s.8(1)(a). [23] In another case, where the
appellant, who was unfairly wronged in an inquiry, was allowed to obtain the names of those who
participated in the decision-making despite the exemption in s.8(1)(g) since such blatant unfairness
raised questions of good governance. [24] Thus, the exceptions become part of the advantages to access
to information in India.

Misuse of the act

The disadvantages of the act, however, are to be found often enough in its use by the applicants for
information. While the Act, via s.19, provides for compensation to the complainant in case of any loss or
other detriment suffered, it does not contain any provision for imposition of penalty in case the
applicant has attempted to misuse the Act.

Further, there being no provision in the Act to recover from information seekers the larger costs of
compiling and disclosing the information, certain people frequently and repeatedly put an application
under this act. [25] There are some who are genuinely fighting for a cause, and there are

others who do this in an attempt to harass public authorities. Often, such applications are quite
frivolous. In Shri R.P. Azad v. Development Commissioner (Handicrafts) [26] , the Commission cautioned
the complainant against using the RTI, as the cost of servicing frivolous complaints was huge and he had
already obtained a huge amount of information relating to his grievances, through 24 applications.

Often, applicants attempt to misuse the beneficial provisions of the RTI for personal gain, rather than
public gain. As an example, in one application, the applicant, who was under suspension and had
suffered a major penalty, had asked for voluminous information, including explanations, from his
employer about their operations. The Commission held that his intention was to further his own
personal gain and to harass the authorities and therefore dismissed his application for even more
information. [27]
Conclusion

All persons possessing a portion of power ought to be strongly and awfully impressed with an idea that
they act in trust and that they are to account for their conduct in that trust.