RIGHT TO INFORMATION - A DETAILED NOTE

Right to Information

-          “The Right to Information Law of 2005 signals a radical shift in our governance culture and permanently impacts all agencies of state. The effective implementation of this law depends on three fundamental shifts: from the prevailing culture of secrecy to a new culture of openness; from personalized despotism to authority coupled with accountability; and from unilateral decision-making to participative governance”. II Administrative Reforms Commission

Meaning

·         Right to Information means the freedom of people to have access to government information. It implies that the citizens and non-governmental organisations should enjoy a reasonably free access to all files documents pertaining to the governmental operations, decisions, and performance. In other words, it me openness and transparency in the functioning of government. Thus, it is antithetical to secrecy in public administration.

·         As rightly observed by Paras Kuhad, "secrecy as a component of executive privilege or transparency through right to information—which of the two be adopted as a paradigm for governance. Both offer public interest as their rationale. Which in fact serves public interest and can they be harmonised."

·         In 1992, the World Bank released a document entitled 'Governance and Development'. The document has mentioned seven aspects or elements of governance—one of them being transparency and information;

Martyrs in the Fight Against Corruption

During the last few years some common people have laid down their lives fighting against corruption in public life.

·         Sathyendra Kumar Dubey: Project Director Technical, National Highways Department was murdered for exposing corruption in the Gold Quadrilateral Project in Gaya, Bihar.

·         Amith Jethwa: A prominent RTI activist and “Green Crusader” was campaigning against alleged illegal mining in the Gir Sanctuary areas of Gujarat, which was backed by some politicians. He was shot at by unidentified assailants.

·         Arun Sawant: Shot dead for exposing corruption in Badalpur Municipality.

·         Sola Rangarao: Paid through his life for using RTI Act to ask for information by Mandal Parishad Development Office on funds disbursement.

·         Venkatesh: Died in his fight against encroachment of government lands.

·         Shanmugam Munjaunath: An IIM graduate who was murdered for exposing the sale of adulterated petrol. He was a marketing manager (grade A officer) for the Indian Oil Corporation (IOC) who was murdered for sealing a corrupt petrol station in Lakhimpur Kheri, UP. This incident inspired several students at IIM, IIT and other institutes culminating with the IIM students setting up the Manjunath Shanmugam Trust” with the objective to improve governance in Indian Public life.

 The Struggle for Right to Information

·         Of all the Right to Information Acts, enacted in more than 70 countries in the world today, the Indian Act is reported to be the best drafted one.

·         In fact the United Nations Development Programme in its appeal “Eliminate Corruption, Enable Better Living” has hailed India’s RTI Act as the best in practice.

·         This act did not come about easily but it was achieved as the first and only after a protracted and hard-fought struggle by thousands of activists and various civil society members.

·         It started with the relentless fight by the civil society groups for People’s Rights in Rajasthan that finally in 1977 resulted in the enactment of RTI Act in that state.

·         In Rajasthan it was alleged that during the 1990s there was a widespread corruption and malpractices in the implementation of poverty alleviation schemes.

·         The Mazdoor Kisan Sakthi Sangatan (MKSS) in Rajasthan made a great ground work to unearth the malpractices in the poverty alleviation schemes and after having got the prima facie facts, MKSS set up a public enquiry.

·         This public enquiry revealed that a few public servants had indulged in large scale corruption and malpractices.

·         The affected public themselves came out boldly, averred that records had been manipulated for the works that were still undone such as for road works, desilting of lakes, etc., and that thousands of public servants had been benefited by these.

·         This bold act of the public brought home the realization to keep the public informed about the government’s plans, policies, etc.

·         It is equally important and a fundamental right on the part of the public to demand information on such public schemes.

·         The struggle that began for copies of bills, vouchers and muster rolls of development works has compelled the state government to bring out state RTI. Even though the act was not the best of its kind on RTI, it has laid the foundation for nationwide demand for comprehensive law in RTI.

·         Aruna Roy, Nikhildev and Sarpanch Changan Singh of the MKSS, with the support of the common masses, started a string of struggles for RTI.

·         These relentless, continuous fights finally resulted in the proclamation that “the State of Rajasthan would be the first in India to enable the ordinary citizen to access and get copies of government records”.

·         Rajasthan government in 1995 gave this proclamation in the State Assembly.

·         it remained just as an announcement, nearly for the next one year.

·         In April 1996, MKSS started their continuous struggle demanding the Rajasthan government to implement their earlier proclamation in the Assembly.

·         It was a massive demonstration in which all the people from different strata participated. Yielding to the pressure, the Rajasthan Government announced yet again its plan to implement the RTI Act; but again it remained just an announcement.

·         MKSS decided to intensify its struggle invoking the Mahatma’s potent slogan “Do or Die”. In Jaipur it started its agitation in May 1997 and continued it for several weeks.

·         The state felt the tremors of this agitation. As a result of the struggle Rajasthan government brought the state act pertaining to Right to Information.

·         Emboldened MKSS started taking steps for the enactment of the RTI Act throughout India.

·         MKSS paved the way for the formation of the National Campaign for People’s Right to Information Act – NCPRI. Many organizations and human rights movements aligned themselves with NCPRI to bring about RTI Act.

·         In 2002, NDA Government headed by Sri Atal Bihari Vajpayee passed a bill on Freedom of Information Act 2002 in the Parliament.

·         But it did not become an Act.

·         In 2004, UPA government headed by Shri Manmohan Singh includes RTI Act in its election manifesto; and when it formed the government, started taking steps to fulfill its promise.

·         In August 2004, the National Advisory Council, the NCPRI, and the Commonwealth Human Rights Initiative (CHRI) together made some changes in the 2002 RTI Bill and submitted its core document.

·         Based on this core document in December the new bill on RTI Act was introduced in the Parliament.

·         The bill was approved by the Lok Sabha on 11 May 2005 and by the Rajya Sabha on 12 May.

·          The Indian President’s approval was obtained on 15 May and the bill formally became an Act. It was published in the Government Gazette on 22 June and from 12 October 2005 it has been in implementation.

In India, various laws and rules restrict the disclosure of official information to the people and favours secrecy in administration:

(i)            Official Secrets Act, 1923.

(ii)          Indian Evidence Act, 1872.

(iii)        Commission of Enquiry Act, 1952.

(iv)         All-India Services (Conduct) Rules, 1954.

(v)           Central Civil Services (Conduct) Rules, 1955.

(vi)         Railway Services (Conduct) Rules, 1956.

Global Scenario

·         Sweden was the first country in the world to introduce the right to information. It had conferred this right on its citizens through a direct constitutional provision, way back in 1766. In this country, access to government documents is a right and non-access an exception.

·         Sweden was followed by other Scandinavian countries but very lately. Thus, Finland enacted the Freedom of Information legislation in 1951. Both Denmark and Norway have made the similar legislations in the same year (1970).

·         USA has granted the right to information to its citizens by the Freedom of Information Act (1966). s Act was amended in 1974 for two purposes: (i) to limit the exemptions (the documents which the administration may keep in secret); and (ii) to provide for penalties for withholding the information or acting in an arbitrary manner.

·         France, Netherlands and Austria have made the similar legislations in. the 1970s. Canada, Australia, New Zealand have done it in 1982. Thailand and Ireland have made the law in the same year 1997 Bulgaria enacted it in 2000.

·         In South Africa, the right to information is guaranteed by the constitution itself. This right of the citizens has been further reinforced by enacting a legislation in 2000.

·         In Britain, the Fulton Committee (1966-68) found too much of secrecy in public administration. H recommended an enquiry into the Official Secrets Act, 1911.

·         In 1972, the Franks Committee also similar recommendation. Hence, in 1988, the Act was amended to narrow the scope of official info falling within its ambit. Finally, the UK Freedom of Information Act came into force on January 1, 2005.

 Evolution of Right to Information (India)

·         Constitution does not explicitly provide Right to Information as a fundamental right but it is inherent in Article 19(1)(a) and Article 21 of the Constitution of India.

·         India has also ratified the Universal Declaration on Human Rights. Article 19 of the declaration provides for the Right to Receive and Impart Information.

·         Supreme Court in various cases such as State of UP vs. Raj Narain, S.P. Gupta vs. UOI, Dinesh Trivedi vs. UOI, Bhopal gas leak case has asserted the idea of “Right to Know” as a fundamental right.

·         Mathew Commission (1982) emphasized on Right to know.

·         Fifth Pay Commission (1994-97) recommended abolition of Official Secrets Act 1923 and introduction of Right to Information.

·         1995: Press Council of India brought out the first blue print of model RTI.

·         1997: Tamil Nadu enacted the first Right to Information Act followed by Goa.

·         1997: Shourie Committee – Another draft on RTI.

·         2000: Rajasthan and Karnataka enacted their own Right to Information Acts.

·         2001: Delhi enacted its Right to Information Act.

·         2002: Maharashtra and Assam enacted their own Right to Information Acts.

·         2002: Freedom of Information Act introduced and enacted but never notified.

·         2005: Right to Information finally enacted and got notified and came into force.

State Information Acts

·         Even before the Central legislation was passed, some of the states introduced their own right to information legislation. The first amongst these was Tamil Nadu. The states and the respective years of the enactment of legislations are mentioned below in Table 5.4.

States	Year of Enactment
1. Tamil Nadu	1997
2. Goa	1997
3. Rajasthan	2000
4. Karnataka	2000
5. Delhi	2001
6. Maharashtra*	2002
7. Assam	2002
8. Madhya Pradesh	2003
9. Jammu & Kashmir	2004

·         *Maharashtra repealed its earlier Right to Information Act of 2000 to bring out an improved one in 2002.

·         In Rajasthan, the Right to Information movement was initiated by Aruna Roy in the early 1990s. The 'Mazdoor Kisan Shakti Sangathan (MKSS) succeeded through struggle and agitation, in accessing and using information to put an end to local corruption and exploitation.

Rationale

The right to information is necessary due to the following reasons:

1.       It makes administration more accountable to people.

2.       It reduces the gap between administration and people.

3.       It makes people aware of administrative decision-making.

4.       It facilitates better delivery of goods and services to people by civil servants.

5.       It facilitates intelligent and constructive criticism of administration.

6.       It increases people's participation in administration.

7.       It promotes public interest by discouraging arbitrariness in administrative decision-making.

8.       It reduces the scope for corruption in public administration.

9.       It upholds the democratic ideology by promoting openness and transparency in administration.

10.    It makes administration more responsive to the requirements of people.

11.    It reduces the chance of abuse of authority by the public servants.

                The following statements made by eminent administrative thinkers and practitioners highlight the importance of right to information:

                Woodrow Wilson "I for one have the conviction that -government ought to be all outside and not inside. I, for my part, believe that there ought to be no place where everything can be done that everyone doest know about. Everyone knows corruption thrives in secret places and avoids public places."

                James Madison "People who mean to be their governors must arm themselves with power which knowledge gives. A popular government without popular information or the means of acquiring it is but a prologue to a farce or tragedy or perhaps both."

                Lord Acton "Nothing is safe that does not show that it can bear discussion and publicity."

                British Franks Committee (1972) "A government which pursues secret aims, or which operates n greater secrecy than the effective conduct of its proper functions require, or which turns information services into propaganda agencies, will lose the trust of the people. It will be countered by ill-informed destructive criticism".

                Justice Douglas of USA "Secrecy in government is fundamentally antidemocratic, perpetuating bureaucratic errors. Open discussion based on full information and debate on public issues are vital to our national health."

                To sum up, in the words of Paras Kuhad, "The secrecy system is less for safeguarding public or national interest and more for safeguarding government's reputation, burying its mistakes, maximizing its power shielding its corrupt practices, and manipulating the citizens."

Significance of RTI

1.       Promotes the idea of popular sovereignty.

2.       Promotes openness, transparency, accountability in administration.

3.       Empowers citizens to combat corruption.

4.       Prevents administrative arbitrariness or high-handedness.

5.       Bridges gap between providers and recipients of public service.

6.       Makes citizens part of the decision making process in the government.

7.       Strengthens grassroots democracy through people’s participation.

8.       Empowers people to have access to other rights.

9.       Promotes good governance through transparency, accountability, predictability and participation.

10.    Provides transparency in government organizations by making them functions more objectively thereby enhancing predictability.

11.    Enables citizens to participate in the governance process effectively by providing information about the functioning of government.

12.    Access to information can empower the poor and the weak sections of the society to demand and get information about public policies and actions, thereby leading to their welfare.

13.    Right to Information has been seen as the key to strengthen participatory democracy and ushering in people centered governance.

14.    Promotes administrative reforms by exposing the weaknesses and gaps in the system.

15.    Exempts certain intelligence and security organizations from its purview. However, information on corruption and human rights violation are not excluded from this act. RTI and Administrative Reforms

·         RTI and administrative reforms have a mutually reinforcing symbiotic relation.

1.       RTI ensures transparency, accountability and efficiency which are goals of administrative reforms as well.

2.       RTI helps in exposing the shortcomings of the system which leads to further administrative reforms.

3.       RTI cannot succeed in its implementation until and unless supported by structural and procedural reforms. Thus, administrative reforms are a necessity for RTI success.

4.       Requests of information under RTI can help make the civil servants aware of the problems and thus lead to corrective action.

 Right to Information Act, 2005

The act specifies that citizens have a right to:

·         Request any information (as defined)

·         Take copies of documents

·         Inspect documents, works and records

·         Take certified samples of materials of work

·         Obtain information in form of printouts, diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts.

 Information Defined

·         Information has been defined as any material in any form including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, 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.

Process

·         Under the Act, all authorities covered must appoint their Public Information Officer (PIO).

·          Any person may submit a request to the PIO for information in writing.

·         It is the PIOs obligation to provide information to citizens of India who request information under the Act.

·          If the request pertains to another public authority (in whole or part), it is the PIO’s responsibility to transfer/ forward the concerned portions of the request to a PIO of the other within 5 days.

·          In addition, every public authority is required to designate Assistant Public Information Officer (APIOs) to receive RTI requests and appeals for forwarding to the PIOs of their public authority.

·          The citizen making the request is not obliged to disclose any information except his name and contact particulars.

The act specifies time limits for replying to the request:

1.       If the request has been made to the PIO, the reply is to be given within 30 days to receipt.

2.       If the request has been made to an APIO, the reply is to be given within 35 days of receipt.

3.       If the PIO transfers the request to another public authority (better concerned with the information requested), the time allowed to reply is 30 days but computed from the day after it is received by PIO of the transferee authority.

4.       Information concerning corruption and Human Rights violations by scheduled Security agencies (those listed in the Second Schedule to the Act) is to be provided within 45 days but with the prior approval of the Central Information Commission.

5.       However, if life or liberty of any person is involved, the PIO is expected to reply within 48 hours.

                If the information is not provided within this period, it is treated as deemed refusal. Refusal with or without reasons may be ground for appeal or complaint. Further, information not provided in the times prescribed is to be provided free of charge.

Appeal process in the act

Option 1 - Making an Appeal

•              The appeal process falls under section 19 of the Act and envisages a two-step process:

• Firstly, an appeal to the Appellate Authority and

• Secondly, an appeal to one of the newly established Information Commissions.

·         The appeals process is supposed to be a quicker, cheaper way of enabling requesters to get a decision reviewed, than going to the courts.

First Appeal to the Appellate Authority      

•    You need to send your appeal to the Appellate Authority within 30 days from the date on which you received the decision (or you should have received a decision) from the PIO.

•    However, if you miss that deadline but the Appellate Authority feels that you have been prevented from making an appeal within this time limit for justifiable reasons, he/she may allow you to submit an appeal even after the 30 days have expired.

•    The Central Act requires that the internal Appellate Authority dispose off your appeal within 30 days or 45 days if an extension is necessary

Second Appeal to the Infomation Commission

•    If you are unhappy or dissatisfied with the decision of the Appellate Authority, the Central Act provides you with the option of filing a second appeal with the newly constituted Information Commissions at the Centre or the States.

•    A second appeal against a decision of an Appellate Authority to the Information Commission must be made within 90 days from the date on which the decision should have been made or from the date a decision was actually received.

•    However, the Information Commission has the discretion to allow appeals after this period has expired.

Option 2 - Making a Complaint

• Instead of making an appeal to the Appellate Authority and then the Information Commission, you also have the option of approaching the Information Commission directly and submitting a complaint under section 18(1) of the Act if you are not satisfied with the decision of a PIO or if you think a public authority is failing to comply with its information duties under the Act.

• This is a particularly useful route if you wish to immediately seek a penalty for the PIO or compensation for yourself.

• The Appellate Authority does not have the power to order either of these, but Information Commissions do.

• By approaching the Information Commission directly you will be able to bypass the Appellate Authority, although the lack of time limit for the Information Commission to give its decision is one drawback to this procedure.

•  The Appellate Authority has to give its decision within a maximum of 45 days.

•  It is for you to carefully decide which procedure is best in your case.

Appeal to the Courts

• The last point of appeal is, of course, the courts. Although the Central Act, attempts to bar appeals to the courts, this is not constitutional.

• The Supreme Court of India has long recognised that the right to information is a fundamental constitutional right, which means that you can always take a case to the Court in support of that right.

Exemptions under section 8

The following is an exempt from disclosure:

1.       Information, disclosure of which would prejudicially affected the sovereignty and integrity of India, the security, “strategic, scientific, or economic” interests of the State, relation with foreign State or lead to incitement of an offence.

2.       Information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court.

3.       Information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature.

4.       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.

5.       Information available to a person in his or her fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information.

6.       Information received in confidence from foreign Government.

7.       Information, the disclosure of which endanger the life or physical safety of any persons or identify the source of information or assistance given in confidence for law enforcement or security purposes.

8.       Information which would impede the process of investigation or apprehension or prosecution of offenders.

9.       Cabinet papers including records of deliberations of the council of Ministers, Secretaries and other officers.

10.    Information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual (but it is also provided that the information which cannot be denied to the parliament or a State Legislature shall not be denied by this exemption).

Notwithstanding any of the exemptions listed above, a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.

 Exclusions  from the purview of the act-

·         Central Intelligence and security agencies specified in the Second Schedule such as IB, RAW, Central Bureau of Investigation (CBI), Directorate of Revenue Intelligence, Central Economic Intelligence Bureau, Directorate of Enforcement, Narcotics Control Bureau, Aviation Research Centre, Special Frontier Force, BSF, CRPF, ITBP, CISF, NSG, Assam Rifles, Special Service Bureau, Special Branch (CID), Andaman and Nicobar,

·         The Crime Branch — CID-CB, Dadra and Nagar Haveli and Special Branch, Lakshadweep Police, Agencies specified by the state governments through a notification will also be excluded.

·         The exclusion, however, is not absolute and these organisations have an obligation to provide information pertaining to allegations of corruption and human rights violations.

Structure AND authority  of officials in the RTI act

1.       Basics of the Central and State information Commissions

•      The RTI act 2005 provides for establishment of Central and State information commissioner as a designated authority to receive and inquire into a complaint from any person.

What is the Central information commission?

•      The Act provided for the constitution of the Central Information Commission (CIC) to be responsible for the implementation of the Act, exercising powers conferred on it under Section 18 of the Act.

•      The CIC, under this Section, consists of one Chief Information Commissioner, who will head the Commission, and such number of Central Information Commissioners, as may be deemed necessary, but not exceeding ten. On 26 October 2005, Mr. Wajahat Habibullah became India’s first Chief Information Commissioner.

•          Under the CIC, The Chief Information Commissioner enjoys complete financial and administrative powers of a Department of the Government of India except in matters relating to the creation of posts, re-appropriation and writing-off losses for which it needs the specific concurrence of the Ministry of Finance.

•          The general superintendence, direction and management of the affairs of the Commission are vested in the Chief Information Commissioner, who is assisted by the Information Commissioners.

Who can become a CIC?

•      The Chief Information Commissioner and Information Commissioners shall be appointed by the President on the recommendation of a committee consisting of—Prime Minister as Chairperson, the Leader of Opposition in the Lok Sabha; a Union Cabinet Minister to be nominated by the Prime Minister.

•      Commissioner and Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance. The

•      Commissioner or a commission member shall not be a Member of Parliament or Member of the Legislature of any State or Union territory.

•      The Chief Information Commissioner shall hold office for a term of five years or after he has attained the age of sixty-five years whichever is earlier.

•      Every Information Commissioner shall hold office for a term of five years.

•      Chief Information Commissioner shall be the same as that of the Chief Election Commissioner; an Information Commissioner shall be the same as that of an Election Commissioner: and receive salaries and allowances same as them.

What are Powers and Functions of CIC?

•      The general superintendence, direction and management of the affairs of the Central Information Commission vests in the Chief Information Commissioner assisted by the Information Commissioners and exercises all such powers and do all such acts and things which may be exercised or done by the Central Information Commission autonomously without being subjected to directions by any other authority under this Act. Some of the major works are –

•      To receive and inquire into complaints from any person relating to access to information under the control of public authorities and to decide appeals against the decisions of designated appellate officers.

•      Powers to require the public authority to compensate the complainant for any loss or other damage suffered.

•      The decision of the Commission on an appeal is binding and is not subject to further appeal in a court of law.

•      Can make recommendations to public authorities not conforming to the provisions or the spirit of the Act.

•      The Commission shall recommend to the Government every year, reforms on any “matter relevant for operationalizing the right to access information”.

•      While inquiring into a complaint it the same powers as of a civil court under the Code of Civil Procedure, 1908, for the following purposes: enforcing the attendance of persons and compelling them to give oral or written evidence on oath and to produce documents or things; inspection of documents; evidence on affidavit; any public record or copies thereof from any court or office; issuing summons etc.

•      The Act mandates the CIC to submit Annual Reports

to the Parliament

What is a State information commission and Commissioner

•      The State Information Commission is constituted by the State Government with one State Chief Information Commissioner (SCIC) and not more than 10 State Information Commissioners (SIC) to be appointed by the Governor.

•      The Commission and commissioners exercises its powers without being subjected to any other authority under RTI act 2005.

•      The Appointments Committee is headed by the Chief Minister including the Leader of the Opposition in the Legislative Assembly and one Cabinet Minister nominated by the Chief Minister.

•      The qualifications for appointment as SCIC/SIC shall be the same as that for Central Commissioners.

•      The salary of the State Chief Information Commissioner will be the same as that of an Election Commissioner. The salary of the State Information Commissioner will be the same as that of the Chief Secretary of the State Government.

What are powers and functions of SIC?

•      The Central Information Commission/State Information Commission has similar duties but at central level and jurisdictions.

•      Have powers of Civil Courts similar to CIC such as – summoning and enforcing attendance, receiving evidence on affidavit; requisitioning public records, issuing etc.

•      The State Information Commission sends annual a report to the State Government.

What are Current Issues?

At present, the RTI Act states that the Chief Information Commissioner and Information Commissioners must be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance.

The Supreme Court in September 2012 ruled that “only” serving and retired judges of the apex court and chief justices of state high courts can head the Central and State Information Commissions. Directing the Centre to amend the RTI Act in this regard, the court stated that the functions of the Chief Information Commissioner and Information Commissioners can be “better performed by a legally qualified and trained mind possessing the requisite experience”.

•      It further ruled that lawyers with work experience of over 20 years will also be eligible for appointment as a member and all such decisions will be taken after consultations with the CJI and Chief Justice of the respective high courts.

•      The court passed the order on a PIL challenging the provisions of the Right to Information Act, 2005 which enumerate the qualifications needed for appointment as members to the commissions. As per the court, Information Commissions are “judicial tribunals” and need to be manned by a person of judicial mind, expertise and experience in that field.

Implementing Issues of the Act

1               Various sections of society should be adequately represented in the Information commissions instead of preponderance of civil servants. At least half of the members should be non-civil servants.

2.       Application to Private Sector: Institutions that enjoy natural monopoly, or whose functions impinged or citizens lives substantially, must come under RTI.

3.       Definition of “Substantially Financed” has been taken variously. So commission has defined it as organizations that have received 50% of annual operating costs or a sum > INR 1 crore during any of preceding 3 years, should come under RTI.

4.       Application to NGOs: Information with NGOs having the following characteristics should come under the purview of RTI

-          substantially financed;

-          NGOs having natural monopoly, impinging on citizens lives; and

-          Any information, if it were held by government, subject to RTI disclosure, when transferred to NGO will continue to be subject to disclosure.

5.       National Coordination Committee (NCC) should be created and headed by Central Information Commissioner – this committee will monitor successful implementation of RTI.

6.       Application of RTI to legislature

-          There should be a tracking mechanism so that action taken by executive branch on CAG reports and other Enquiry Commission reports is available to public and legislators.

-          Working of Legislative Committees should be thrown open to the public.

7.       Application of RTI to Judiciary

-          Records at district court and subordinate courts should be stored in a scientific manner and uniform way.

-          Administrative processes in district and subordinate courts should be computerized in a time bound manner.

8.       Information is presented in a mystified and technicised manner by government departments.

9.       Application of RTI to judiciary is very limited.

10.    Application of RTI to legislature is also very limited.

11.    Maintenance of information not automated and not efficient.

12.    Suo-moto disclosure mandated under the Act is not being done properly.

13.    Awareness of the Act is low among masses.

14.    Costs of retrieving information through RTI are high.

15.    Officials Secrets Act needs to be repealed as it promotes a culture of secrecy.

16.    Officials need to be properly sensitised and trained with respect to transparency and accountability concerns of RTI.

17.    Other Acts, rules, manuals haven’t been amended to bring them in congruence with RTI spirit.

18.    RTI hasn’t been able to create a climate of transparency as a norm. Rather RTI is being used to get small work done or to threaten or harass.

19.    Right to privacy has not been provided under the Act.

20.    Bureaucratic pre-eminence in Information Commissions results in promotion of traditional bureaucratic ethos of secrecy and lack of accountability.

21.    Many High Courts have made rules exempting themselves from RTI.

 Recommendations of Second Administrative Reforms

1.       The Official Secrets Act, 1923 should be repealed, and substituted by a chapter in the National Security Act, containing provisions relating to official secrets.

2.       Relevant provisions of Indian Evidence Act, 1872, civil procedure code needs to be amended.

3.       a. As an affirmation of the importance of transparency in public affairs, ministers on assumption of office may take an oath of transparency along with the oath of office and the requirement of administering the oath of secrecy should be dispensed with. Articles 75(4) and 164 (3), and the Third Schedule should be suitably amended.

b. Safeguard against disclosure of information against the national interest may be provided through written undertaking by incorporation of a clause in the national security law dealing with official secrets.

4.       Civil services rules of all states may be reworded in such a manner that disclosure of full and accurate information under RTI is a duty in good faith.

5.       a.    Section 12 of the Act may be amended to constitute the Selection Committee of CIC with the Prime Minister, Leader of the Opposition and the Chief Justice of India. Section 15 may be similarly amended to constitute the Selection Committee at the State level with the Chief Minister, Leader of the Opposition and the Chief Justice of the High Court.

b.   The Government of India should ensure the constitution of SICs in all states within three months.

c. The CIC should establish four regional offices of CIC with a Commissioner heading each. Similarly, regional offices of SICs should be established in larger states.

d. At least half of the members of the Information Commissions should be drawn from non-civil services background. Such a provision may be made in the Rules under the Act, by the Union; Government, applicable to both CIC and SICs.

e. All Ministries/ Departments/ Agencies/ Offices with more than one PIO have to designate a model Assistant Public Information Officer with the authority to receive requests for information on behalf of all PIOs. Such a provision should be incorporated in the Rules by appropriate governments. All public authorities may be advised by the Government of India that along with the PIOs they should also designate the appellate authority and publish both, together.

6.       Suo-motu disclosures should also be available in the form of printed, priced publication in the official language, revised periodically (at least once a year).

7.       All government functionaries should be imparted atleast one day training on Right to Information, within an year.

8.       Awareness campaigns may be entrusted to credible non-profit organisations at the state level.

9.       The CIC and the SICs may be entrusted with the task of monitoring effective implementation of the Right to Information Act in all public authorities. (An appropriate provision could be made under Section 30 by way of removal of difficulties.)

10.    NCC may be set up under the chairpersonship of the Chief Information Commissioner with the nodal Union Ministry, the SICs, and representatives of states as members. The NCC would:

a. Serve as a national platform for effective implementation of the Act,

b. Document and disseminate best practices in India and elsewhere,

c. Monitor the creation and functioning of the national portal for Right to Information,

d. Review the Rules and Executive orders issued by the appropriate governments under the Act,

e. Carry out impact evaluation of the implementation of the Act; and

f. Perform such other relevant functions as may be deemed necessary.

11.    States may be advised to set up independent public grievances redressal authorities to deal with the complaints of delay, harassment or corruption.

12.    a. Organisations which perform functions of a public nature that are ordinarily performed by government or its agencies, and those which enjoy natural monopoly may be brought within the purview of the Act.

b. Norms should be laid down that any institution or body that has received 50% of its annual operating costs, or a sum equal to or greater than INR 1 Crore during any of the preceding three years should be understood to have obtained “substantial funding” from the government for the period and purpose of such funding.

c. Any information which, if it were held by the government, would be subject to disclosure under the law, must remain subject to such disclosure under the law, must remain subject to such disclosure even when it is transferred to a non-government body or institution.

Right to Information Act – Key to Good Governance

1.       Change in Archaic Laws, Procedures and Practices

2.       Official Secrets Act should be repealed and should be substituted by a chapter in National Security Act.

3.       Indian Evidence Act, 1872 should be amended to aid disclosure of officially classified information applicable under RTI to public.

4.       Civil Service Rules of all states should be reworded – Civil Servant shall communicate all information applicable under RTI to public.

5.       Manual of official procedure to be reworded on the same lines.

Right to Information – Success Stories

Case Study 1

·         R. Chandran (name changed) of Tiruvallikkeni, Chennai, is a retired assistant engineer from TNEB. After retirement, Chandran has been doing house wiring as a freelancer. When he wanted to apply for a licence, he found that he had lost his educational certificates.

·         He applied to the Directorate of Technical Education duly paying the necessary fees for getting a duplicate copy of his certificate. Even after eight months he did not get the duplicate.

·         Then on advice, he filed an application with the Director of Technical Education by invoking the RTI Act – 2005, for taking action on his earlier application. Soon thereafter he received at his doorstep a copy of the duplicate of the Degree Certificate, duly signed by the concerned authorities.

Case Study 2

·         Vijayakumar (name changed) from Ambattur, Chennai, had registered for his Ph.D through correspondence with a deemed university run by a private educational trust in Salem, in 2006. Though he had paid the full fees for the year, he had not received any study materials nor his identity card from the University; no guide also identified for his Ph.D.

·         After one year when Vijayakumar enquired, he was asked by the management to pay the second year fees in full and told only then would study materials be sent to him.

·         Then on advice, Vijayakumar asked the management to furnish information on why first year study materials had not been given. He was told that the Deemed University was not covered by the RTI Act and hence was not duty bound to reply and that they had also obtained an injunction from the District Court of Salem.

·         An Appeal was filed with the UGC. The UGC pointed out that the Deemed University was getting grants from the UGC and hence they should very well offer whatever Vijayakumar had asked for. The UGC sent a copy of their letter to the Management of Deemed University and to Vijayakumar.

·         On the second day of receiving the letter from the UGC, a person from university came to Vijayakumar’s residence to inform him that the Vice Chancellor of the concerned Deemed University wanted to talk to him and that he should contact him over cellphone. The correspondent informed Vijayakumar that his identity card, study material, and details of his Guide were all ready. Vijaykumar could go to the university and collect the material. Vijayakumar went to Salem and returned with all what he demanded.

Case study 3 — Rickshaw Puller Benefits from RTI

·         Mazloom Nadaf, a 70-year old rickshaw puller in Bihar had built his own house after exercising his right to know. But he spent a long time to get his home under the Indira Awas Yojana, the country's national housing scheme. Five years after he had applied the authorities demanded INR 5000 to process his application. But he refused to pay. Nadaf approached the legal aid center of an NGO working in Madhubani district and sought their assistance in drafting and filing an RTI application. In his application he asked for the daily progress report made on his application to avail the Indira Awas Yojana. He filed his application with the Circle Officer of his Block who forwarded the same to the Block Development Officer (BDO).

·         The BDO on receiving the RTI application sent for Mazloom and treated him like a VIP and with a lot of respect. Mazloom was handed a cheque of INR 15,000 (first installment payment) under the Indira Awas Yojana.

·         Mazloom's house is now under construction. He has also been assured by the BDO that all his other requests will also be taken care of.

Case Study 4 — 70 Year Old uses RTI to get Dead Son's Records

·         A 70-year old woman from Haryana used the Right to Information Act to gain access to files regarding the pension and other benefits of her son, a Delhi Traffic Police constable who was killed in a road accident over five years ago.

·         Laxmi of Bhiwani district in Haryana had appealed to the Central Information Commission (CIC) for gaining access to file. Notings were made by authorities on her son's dossier regarding the payment of terminal benefits totaling about INR 4 lakh and his family pension.

·         The CIC's ruling gave her access amidst a controversy over a government proposal to amend the RTI Act to prevent the public from viewing most file notings. Laxmi filed an application based on information accessed, and successfully ensured her daughter-in-law Mamta received her due monthly pension.

Case Study 5 — The Self Empowerment Story of Arif and Zamila Banu

                "I bought a flat two and a half years back in my wife's name. After I bought the flat, the builder gave me a copy of the registry. But I found out later that I needed to get a transfer copy and a blue print for the flat. I went back to the bank officials, but they said that all the papers had been given. "I had prior knowledge of RTI and that is how I filed one in my wife's name. I sent this RTI application to an officer in the RBI. I received a call within five days from the bank. They asked me about the harassment I had faced. I told them everything. After which they told me that I would have all my paper work done by the next day." "Sure enough, by morning, all my papers were with me. With the help of RTI, I broke the nexus of the bankers and builders who were making me run around. I appeal to all my fellow citizens to understand the power of RTI. We must remember that all these government officers are answerable to us," said Arif.

                The RTI is being described by most people as one of the most important piece of legislation, which makes the bureaucracy and government accountable.

Case study 6 — Khetramani finally gets her Land Records through RTI

                Khetramani Samantrai bought a small piece of land near Dhauli, Bhubaneswar. Karunakar Swain, a notary, prepared the land deed documents, which were submitted at the District Sub-Registrar Office (DSO) in Bhubaneswar after completion of the legal formalities. But Khetramani did not receive the original documents in spite of producing the receipt of the deed. Khetramani Samantrai and Karunakar Swain had been constantly visiting the DSO for nearly one and a half years but the clerk concerned did not hand over the documents to them. On 13 July 2006 she came to the RTI camp help in CYSD Bhubaneswar seeking guidance as to how she could redress her grievances using RTI.

                At the camp, Khetramani was assisted by volunteers in filling up the application for information under ' Section 6 (1). A few volunteers accompanied her to the DSO and approached the head clerk to know the cause of the delay in providing the original documents. The response from the clerk was not very convincing.

                The case was discussed with the PIO of the DSO. When the volunteers insisted in registering the complaint through RTI, the PIO intervened and asked the officials to look into the case and produce the deed papers immediately. The head clerk then produced the document in "15 minutes" and officially handed it over to Khetramani who finally got justice after resorting to the RTI tool.

Case study 7 — RTI Exposes Janawad Scam

                RTI has once again come to the rescue of people of Rajasthan by nailing those responsible for the "mother of rural development scams" in Rajasthan.

                In the 1990s, the Janawad Panchayat in Rajsamand district began spending over INR 1 crore annually, highest among the 9,000 panchayats in the state. Over 70% of the money was siphoned off by a corrupt nexus between the sarpanch and government officials. The scam was not exposed with the help of any sting operation or hidden cameras but by villagers who used their right to information to nab the culprits.

                A government dispensary in the district was at the heart of the scam in Janawad Panchayat. Though it was built in 1960s but in 1995 the then sarpanch siphoned off nearly INR 2 lakh claiming it be for a new building. Two years later the Rajasthan Information Act made it compulsory to display every information regarding development work in Panchayat offices. And villagers soon caught the corrupt sarpanch.

                "They never built a new dispensary; they just fudged government records to make a false claim. In reality; this was built about 50 years ago when I used to study in school," said Chaman Lal, resident, Janawad village.

                Using their information rights, over 70 villagers then collectively demanded the records of their Panchayats and the frauds this revealed were truly staggering.

                To understand the reality, these were the facts: 49 out of the 146 works undertaken simply did not exist. The list included five wells, seven roads, and six primary schools, which existed only in government records but were never built on the ground.

                "The right to information is a strong law and people must use it. In Janawad, government officials colluded from top to bottom for their corrupt deals. Similarly, we need to constantly monitor their work and fight collectively if we want to curb corruption," said Shanker Singh, Coordinator, MKSS. Government took tough actions against the corrupt.

                The Sarpanch was jailed, 13 government officials involved in the scam were suspended, and annual social audits of Panchayat funds were made mandatory.

                Former Prime Minister Rajiv Gandhi had once stated that of every rupee of development funds barely 15 paise actually reaches the poor on the ground, but villagers have shown that if people fight together, the RTI can help change this situation and combat corruption effectively.

Case study 8 — Laxmi Devi uses RTI to get Elusive Pension

                The beaming face of Laxmi Devi says it all. The 80-year old has finally got her pension after she had almost given up the hope, thanks to the Right to Information Act.

                Laxmi Devi lives with her daughter, who works as a domestic help, in Khirki village. In May 2005, she applied for an old–age pension. But despite numerous visits to the office, there was no sign of the pension.

                Finally, she approached an RTI camp organised by Satark Nagarik Sanghathan, an NGO. She was told that her application was missing and she would have to apply again. She did and promptly got approval for a monthly pension of INR 350 in December. She will receive a cheque of INR 1,750 (for five months).

Case study 9 — Vijay Kumbhar makes an Application to HPCL to Check the Erratic Supply of Gas Cylinders

                After a number of complaints from his wife and neighbours about the irregular supply of gas cylinders by the LPG dealer, Mr. Vijay Kumar filed a requisition with Hindustan Petroleum Corporation Ltd. (HPCL), asking about the details of distribution of LPG cylinders by M/s Kankria Gas Agency.

Copy of Application

1.       How many domestic and commercial cylinder gas customers does the Kankria Gas Agency have (the period of information 1 April 2004 to 30 November 2005) and if there has been any fluctuation in _number of customers in any month?

2.       Number of domestic and commercial customers having one and more than one cylinder?

3.       How many gas cylinders did the Kankria Gas Agency procure from HPCL between 1 September 2005 and 30 November 2005?

4.       Details of the demand and supply of cylinders to the customers of Kankria Gas Agency (period between 1 September 2005 and 30 November 2005) to be given in following format: Consumer's name Consumer no. Date of booking the cylinder, Number of cylinders, Date of delivery

5.       Whether the HPCL has taken any action against any gas agency in Pune for erratic distribution of gas cylinders? If yes, then names of such agencies and action taken against them. Thanks Vijay Kumbhar He had filed the requisition at about 1 prt'and about 2.45 pm his wife called to inform that the dealer had sent the cylinder immediately.

Case Study 10 — Devendra used RTI to get Ration Card

                Someshwar – everyone in the village had a ration card but after the village Panchayat elections two years ago all the ration cards were collected and sent to the block office and the villagers were told that new ration cards would be issued. But even after two years the cards didn't come, which caused problems for the community as well as the ration shop owners.

                The biggest sufferers were the people who had BPL and antyodaya cards (people who very poor and live Below the Poverty Line). Finally Devendra Singh Rawat from the Josh Bal Panchayat got tired and went to talk to the village Pradhan and asked him to help. But it was of no use.

                He then filed an RTI application at the Block Development Office asking for information as to why the cards had not been issued. After 2 days the village Pradhan and the village Development Officer came to visit Devendra and said "If you had told us that you were going to ask for information I would have made ready your ration card earlier". The work that had not happened for two years was completed in 2 days!!

Case study 11 - Tara Dutt uses RTI to get BPL Card

                Bageshwar – Tara Dutt's name had been removed from the BPL list during the BPL survey. He was not told why his name had been removed. His children attended an NGO-sponsored RTI workshop and they told him he could write the application to ask about this change. When he did not receive the reply then he filed an appeal with Block Development Officer with the help of Bhuvan Chandra Pandey, the SIMAR facilitator. The decision given at the appeal was that within two months Tara Dun will get his BPL number and the "Kanya Dhan" (A government scheme, where INR 12,000 is given in stages to the girl child as a fixed deposit which she gets when she completes class 12) money. This money had also been stalled because of the removal of his name from the BPL list, was restarted with immediate effect.

 RTI and Young World

·         Jan Chetna Kendra (Pauri) – Dredging sand from rivers and selling it has become a profitable business. Often locals bribe officials to look the other way while they remove the sand; with little or no concern for the environmental impact or its effect on the fields of the people living there. Beena Bisht wrote an application requesting information on uncontrolled sand quarrying from the river near her village. Some members of her community threatened her but her family supported her, and now the Panchayat (village council) has passed a resolution saying that only the villagers will mine for sand and permission will be taken from the village before quarrying the sand.

·         ARPAN (Pithoragarh) – In many mountain villages the electric voltage is so low that children have to light candles to study at night. Vimala Basera, filed an application asking details regarding power supply. She did not get response, but the voltage got better!!

·         Alcoholism is also a severe problem in Pithoragrah and the children filed a request asking how many raids (and where) were conducted to crack down on illegal alcohol and how much illegal alcohol has been confiscated. The request resulted in a significant reduction in the presence of illegal liquor in their community.

·         Bal Panchayat Horrawalla (Dehradun). On the main road leading into the village, giant cement water pipes had been lying for more than a year. Since the road was also dug-up for the laying of cables, it created a significant hazard and had been the site of numerous accidents, but no one had tried to address the situation. Sixteen year old Devrat submitted an RTI request asking how long the pipes would remain and who would be responsible for any accidents caused by their presence. The pipes were promptly removed.

·         Vimarsh (Nainital) –After learning about the RTI Act, the children in Mangoli requested information on birth registration. They not only got an answer to their application but several births were registered by the Panchayat secretary and 16 birth certificates were distributed in the district office. The block administration was impressed by the children's drive, and invited them to the monthly block meeting to talk about children's issues.

·         Himani, Ganesh and Deepa from Phaguniakhet, Khurpatal applied for information under the RTI Act on lack of electricity in their village, which had been dark for more than a month. They did not get an answer but the electricity department changed the transformer within a week and electricity was restored.

·         Saral (Nainital) — When Meena Arya filed an RTI asking about computer education in their school, teachers scolded and threatened the kids. The school had been collecting computer fees of INR 120 per child annually, but there were no computers in the school, even though computers had been sent in 2002. Computers returned to the school and the children started attending computer classes.

·         In another school, the teachers kept the school toilets locked, so the children could not use them. Complaints of the children and their parents had long been ignored. But an RTI on the topic by a student Sapna Arya resulted in the locks on the toilet being permanently removed.

·         SBMA (Uttarkashi) — The Indian Government has an Auxiliary Nurse Midwife (ANM) program designed to train women who can go into the villages and provide healthcare and immunisation services to people in their homes. Jaideep Negi submitted an RTI application asking how often, the ANM was supposed to visit the village because she was staying at the ANM center in to win and telling the villages to come to her. The Chief Medical Officer ordered the ANM to visit the village and she is doing so regularly. Notably, the ANM initially tried to bully Jaideep and the SBMA facilitator into dropping the RTI, but the facilitator took the innovative step of getting several more people from other villages in the ANM's working area to submit similar requests. Once more, the RTI project helped sow the seeds of local activist.

Key CHALLENGES in implementing the RTI Act

Introduction

·         This law empowered Indian citizens to seek information from Public Authorities, thus making the Government and its functionaries more accountable and responsible. Unlike many other countries (for e.g. UK) which took several years to operationalise the Act post the enactment, India took only a few months to bring it into force.

·         This time was inadequate to change the mindset of the people in Government, create infrastructure, develop new processes and build capacity to deliver information under this Act.

·         This has led to implementation issues which need to be identified and addressed.

An attempt has been made to identify issues and constraints in the implementation of the Act.

 This has been approached from 3 dimensions:

Demand Side:

This dimension pertains to the information seeker side and follows the issues and constraints faced by

the information seeker, while filing for information request. The study of this dimension included a survey of:

• Citizens (irrespective of whether they have sought information under RTI or not)

• Past applicants

Supply Side:

·         This dimension pertains to the PIO, Nodal Department for RTI implementation and Administrative Training Institutes involved in imparting RTI training.

·         This dimension covers the issues and constraints faced by the Public Authority from the point of receipt of a RTI request to the point when information is delivered to the applicant.

The study of this dimension included

• Survey specifically for the PIOs and FAAs

• PIO Workshops

• Discussions with Nodal Departments and Administrative Training Institutes

Adjudicatory Side (Information Commission):

·         The study of this dimension included one-to-one meetings with State Chief Information Commissioners, Survey of State Information Commission website and 4 national level workshops attended by the representatives of the Central Information Commission and Chief State Information Commissioners.

·         The study also covered various Civil Society Organizations and social activists to study the experiences of citizens with the Information Commission.

Issues faced on the demand side

Low public awareness

·         Section 26 of the Act states that the appropriate Government may develop and organize educational programmes to advance the understanding of the public, especially disadvantaged communities, regarding how to exercise the rights contemplated under the Act. However, as per the survey it was revealed that only 15% of the respondents were aware of the RTI Act. During the awareness survey, it was also observed that the major sources of this awareness were:

• Mass media channels like television channels, newspapers etc

• Word of mouth

·         It was further observed that awareness level is low among the disadvantaged communities such as: women , OBC,SC,ST.

While the Act has been clear in defining the responsibility of the appropriate Government, with respect to creating awareness on the Act, there has been lack of initiative from the Government’s side. The efforts made by appropriate Governments and Public Authorities have been restricted to publishing of rules and FAQs on websites. These efforts have not been helpful in generating mass awareness of the RTI Act. As compared to RTI Act the common citizens (and disadvantaged communities) are significantly more aware of other Government schemes focused on socio-economic development.

Poor quality of information provided

·         During the information seeker survey, it was also highlighted than more than 75% of the citizens are dissatisfied with the quality of information being provided. The corresponding figure for OBC/SC/ST category of citizens stood much higher with 86% dissatisfied citizens. The percentage of people who said that incomplete information was provided to them was alarmingly high in Andhra Pradesh – 91% and Uttar Pradesh - 96%.

Issues faced on the “Supply Side”

Failure to provide information within 30 days

·         As per the Act, the information has to be provided within the stipulated time. However as per our survey it was highlighted by the PIOs that they are challenged to provide the information within the stipulated time due to inadequate record management procedures with the Public Authorities.

·          It is a known fact that the record keeping process within the Government is a big challenge. This situation is further aggravated due to non-availability of trained PIOs and the enabling infrastructure (computers, scanners, internet connectivity, photocopiers etc.). Public Authorities need to meet the requirements of the RTI Act to review their current record keeping procedures and other constraints and plan out the resources.

Inadequate trained PIOs and First Appellate Authorities

·         The training of PIOs is a big challenge primarily due to a) huge number of PIOs to be trained b) frequent transfers of PIOs to other posts. The training institutions also posses a huge constraint with respect to the availability of training resources.

·          Also, it was observed that in the current manner of providing training, there is a low involvement of the Public Authority and an inadequate sense of urgency in getting their PIOs trained. There is a significant dependence on the ATI institutes for training of the PIOs. At the same time it is also noted that there are a large number of non-profit organizations which are carrying out the trainings in official/ un-official capacities – these are untapped resources which could be utilized by the PA, appropriate Government and Training Institutes.

Obsolete record management Guidelines

The situation can be summarized as follows:

• The current record management guidelines at Centre and in most states are not geared to meet the requirements

specified under the RTI Act.

• There is lack of any electronic document management system in any of the Departments.

• Majority of the PIOs surveyed do not even maintain the list of RTI applications electronically.

Non-availability of basic Infrastructure

·         The Implementation of RTI requires the PIOs to provide information to the applicant through photocopies, soft copies etc. While these facilities are considered to be easily available at a district level, it is a challenge to get information from Block/ Panchayat level. PIOs highlight that the lack of infrastructure hampers the RTI implementation at the PA level. In order to service RTI requests, basic infrastructure such as photocopier machines at each Public Authority and basic level of automation such as necessary applications and connectivity is required.

·         The issue of implementation of the RTI Act at an operational level rest with the Public Authority. The appropriate Government and Information Commission can play only a facilitative and adjudicative role. Unless the Public Authorities assess the issues of implementation and identify resources required, there would not be any focus on implementation. The ARC report had mentioned that GoI may allocate one per cent (1%) of the funds of the ‘Flagship Programmes18’ for a period of five years for improving the infrastructure requirements. However this has not been implemented.

Lack of motivation among PIOs

·         In addition to lack of resources, PIOs lack the motivation to implement RTI Act. During the RTI workshops organised in the surveyed states, PIOs cited that there were no incentives for taking on the responsibility of a PIO; however penalties were imposed in cases of non compliance. It was also observed that there is a wide variance in the seniority levels of PIOs.

·         For example PIOs have been appointed at the level of school teachers in the School Education Department in Andhra Pradesh. During the information provider survey, 89% of the PIOs said that there had been no additional allocation of staff for RTI related activities.

Issues faced at Information Commissions

      Perception of being “lenient” towards PIOs

·         It is a matter of introspection for the Information Commission that in the cases where the citizen has not got the information within the stipulated time, then who should be held responsible.

·          If PIO as a person is not responsible, then it has to be a systemic failure within the Public Authority. However as highlighted in the next subsection, the Information Commission does not possess adequate monitoring and review mechanism to track the failures of the Public Authorities in complying with the RTI Act.

Lack of Monitoring and Review mechanism

·         One of the most important roles of the Information Commission is to monitor and review the Public Authority and initiate actions to make them comply with the spirit of the Act. However this has been one of the weakest links in the implementation of the Act.

·          It is acknowledged and appreciated that the Information Commissions have been primarily been spending most of their time in “hearings” and disposing off appeals.

·         However monitoring the Public Authority for compliance of the Act is also an important aspect of the role of the Information Commission, which could result in reducing the number of appeals.

High level of pendency

·         The pendency at the Information Commission is a huge challenge. Unless and until the pendency is kept at manageable level, the objective of the Act would not be met. High pendency of appeals is due to non optimal processes for disposing off appeals and complaints.

Geographical spread of the Information Commissions

·         Majority of the Information Commissions are situated in the State capitals, which results in appellants undergoing an additional cost in order to attend the hearings. The RTI Act had envisaged such an issue and had mentioned the procedure to overcome it under section 12(7) for the Central Government and 15(7) for the State Governments.

·         These provisions allow Information Commissions to set up regional offices with prior approval of State Governments. Maharashtra SIC has already set up regional offices across the State. The offices are present in Pune, Aurangabad, Nagpur, Konkan and Mumbai. As a result, an appellant approaches the nearest office thus saving considerable expenses and time.

·         The Central Information Commission, which has jurisdiction over RTI appeals relating to Central Government Public Authorities spread across the country, is located in Delhi which results in wastage of considerable time/ expenses of PIOs and the appellants, who come from far off areas.

Major Concerns on the Subject Matter

Some of the major concerns in relation to implementation of RTI Act as expressed from various quarters may be considered as below:

(i) Disclosure of file notings

• One of the most debatable and important concerns raised in respect of RTI Act from the very beginning is regarding disclosure of file notings. The government and bureaucracy are concerned over the exposure of file notings to the public that "It will act adversely against the requirement of free and frank opinion by the public officials in decision making process”.
•  In this context it would be appropriate to mention that file notings are ad hoc written notes added to file by officials and thus can give a critical insight into the government decision-making process.
• The exclusion of file notings would undermine the spirit of bureaucratic openness and accountability, which the law embodies. The purpose of the Act is to open government's decision-making process to public scrutiny. In this context it would be appropriate to consider what record is. Section 2(i) (a) of the Act defines `record' to include any document, manuscript and file.
• The Manual of Office Procedure defines 'file' to cover 'notes' and 'appendices to notes'. Further under Public Records Rules, 1997 'file' means 'a Collection of papers relating to public records on a specific subject matter consisting of correspondence, notes and appendices thereto'.
• Thus from a legal and technical point of view the term file as understood in Section 2(i)(a) of the RTI Act includes file notings and it can legally be disclosed as per the requirement of the law . In addition the disclosure of notings will certainly ensure application of mind of the decision-maker to the issues involved and thereby enhance the quality of decisional process. It may also be mentioned that compulsion of disclosure of file notings will reduce to a great extent the administrative culture of putting something as part of record on dictation or in a mechanical manner.
• Disclosure of file notings may also be considered from the point of view of the promoting the overall culture of good administrative practice. It would be appropriate to mention the decision of the Central Information Commission that the "file notings" were an integral part of a file. It was further held by the two-member bench of the Commission that a citizen has the right to seek the information in file notings unless covered by the usual exceptions under Section 8 of the RTI Act.

(ii) Cost of Implementation

• Another major concern has been the cost of implementing RTI Act. Such concerns keeping in view the actual facts viz; the savings to the government through reduction in the level of corruption and maladministration by implementation of the Act would be more than the cost on its implementation.
• Additionally, it may also be mentioned that the total cost on administration of nation certainly comes from the taxes, which the citizens pay to the government and the cost on implementation of RTI would be negligible as compared to the total cost on administration.
•  This may also be said other way round that the taxpayers have all the right to know that how their government is making expenditure of their money. Thus, the concern relating to cost on implementation of RTI Act has been blown out of proportion and ill-founded.

(iii) Misuse of Information

• With the passing of Right to information Act, 2005 any citizen of India can ask for any information from public authority, any information about public servant etc. This is a marvelous step in the direction of transparency.
•  However, what to do of dummy RTI applications i.e. after filing the application all correspondence are returning undelivered than what could be the rationale of this Act. Therefore a good law like Right to Information (RTI) was being misused to ask irrelevant and intrusive questions seriously impeding the working of the concerned authorities.
• There has also been the apprehension that the information sought under the RTI Act would be misused or used to blackmail officials or organisations. In this context it should be remembered that this law can be used to access the truth, therefore, it may be said that how one can misuse the truth.
• The situation of blackmailing the officials or organisations will only emerge when the official is placed in a privileged position to maintain secrecy of sensitive information. It is the situation of secrecy coupled with unguided discretion of authority, which creates a situation of blackmailing in favour of official position and not the other way round. It may further be said that the scope of misuse or blackmail will be reduced or minimised to a great extent in a situation of transparency and free access to information.
• In this way transparency regime is a sure guarantee against chances of misuse or abuse of public office. Transparent exercise of public power by public bureaucracy is, therefore, a guarantee against the misfeasance, non-feasance and late-feasance of public power.

(iv) Choice of Information Commissioners

• This is yet another major concern that the majority of Information Commissioners appointed at both the Centre and the state levels have been retired high-ranking members of the bureaucracy. One of the major concerns is that it is they who were part. of the secrecy regime in the functioning of public administration system for a long period of their career, therefore, their mindset may not be in favour of promoting transparency.
• Yet another strong reason, which may go against such appointments, is the requirement of the Act itself. The Act requires that the Commissioners may be appointed from the category of persons having "eminence in public life with wide knowledge and experience in law, science and technology, social science, management, journalism, mass media or administration and governance".
•  In view of this the appointment of retired bureaucrats in majority may not be justified rather goes against the express provision of the Act. In addition, this may also give an impression that all those who are responsible for administrative culture of secrecy are now trying to ensure transparency. According to a study 58 per cent Information Commissioners are from administration and governance sector. Out of 60 Information Commissioners 27 were retired IAS officers.

(v) Judiciary and Government threat to RTI

• The government and Judiciary is not very keen on the RTI Act and may try to amend it in order to render it toothless. The government and judiciary pose a serious threat to Right to Information Act. The widely prevalent and dangerous trend of resistance to transparency in their functioning by those in power will gradually kill Right to Information Act. Government across the country, irrespective of which party they belong to, follow a pattern of misgovernance and are opposed to transparency.
• The judiciary on the other side has been granting stays on the orders of the Information Commissions; this will eventually kill the Act. Government departments are rushing to courts to get stay orders against the decisions of Information Commissions to provide information to common man.
• Delays in finally deciding the matters destroy the spirit of the Act. Further, the government is flouting all norms in the appointment of Information Commissioners. There is no transparency in the appointment of Information Commissioners.
• No norms are being followed and Information Commissions are being turned into parking lots for favourites of the government of the day. As a result the four year old law to provide information to the common man is under threat of being weakened by the government mindset of amending it for its convenience.
• Now the Cabinet has cleared the Law Ministry's controversial draft Bill, which while making it mandatory for judges, their wives and children to declare their assets annually, also lays down that all such details will be kept confidential. It was this confidentiality that the judiciary has been lobbying for to remain outside the ambit of the RTI Act. This Bill will soon be introduced in the Parliament. Justice J. Verrna,.
• Former CJI who had made the asset declaration for the judges mandatory in 1997, called the new Bill 'a joke'. Former Supreme Court Judge Justice V. R. Krishna Iyer said the government lacked the political will to reform the judiciary. He said that it is shameful that judges want secrecy and the government is abetting it.

Practice questions

1.       "The major assumption behind a new style of governance is the citizen's access to information. M of common man's distress and helplessness could be traced to his or her lack of access to informal and lack of knowledge of decision-making processes. " In the light of the statement, discuss the n for Right to information and the modes in which they can be brought.

2.       "The Right to Information Act, 2005 has unleashed enormous expectations and aspirations am the citizens." Discuss.

3.       Accountability is the question of democracy. In the light of this statement evaluate the effectiveness' Right to Information Act.

4.       RTI Act is a major breakthrough in our democratic polity. Elucidate its effectiveness in. administrative system.

5.       What arrangements should be made to give protection to the whistleblowers, as a part of RTI Act.

6.       Is there a need to rationalise exemptions under Right to Information?

7.       Bring out the lacunae affecting RTI Act in its effective implementation.

10 ways in which RTI has changed the functioning of govt, officials

1 Ministers’ foreign trips: In February 2008, an RTI-based investigation revealed union ministers had made overseas trips equivalent to 256 rounds of the globe. On June 4 that year, Prime Minister Manmohan Singh wrote to all ministers asking them to cut expenses on foreign travel: “…It is not only necessary from the resources conservation point of view, but also as a moral duty, to cut out all wasteful expenditure in our own establishments.” Information accessed through RTI later showed expenditure on ministers’ foreign travel had come down — a trend that has intensified in the Narendra Modi government.

2 Bureaucrats’ foreign trips: Several reports used RTI to expose huge spends of public money on foreign visits by bureaucrats. The Sixth Pay Commission report, submitted in April 2008, said: “There is an increasing tendency on the part of government officials to travel by air in order to gain mileage points which are then used by them for private travel… All mileage points earned by government employees on tickets purchased for official travel should be utilised by the concerned department for official travel itself…” In several circulars subsequently, the government asked departments to put details of foreign travel by ministers and officials on their web sites.

3 Ministers’ assets: In 1964, the union Cabinet passed a resolution requiring ministers to submit details of their own, spouse’s and dependents’ assets and liabilities to the PMO. But until 2009, the practice was hardly followed. After questions under RTI were put to the PMO and Cabinet Secretariat, and the CIC directed that proper answers be given, all UPA 2 ministers submitted details of their assets and liabilities on time. This has since become the norm.

4 Bureaucrats’ assets: After ministers’ and judges’ assets were put in the public domain, RTI applications were filed seeking details of assets of bureaucrats. After initially denying requests on details about IAS officers, Department of Personnel and Training Secretary Shantanu Consul wrote to some top officials on February 24, 2010, that DoPT was “considering… that the asset declarations made by All India Service Officers should be placed on website of Ministries of respective Cadre Controlling Authorities”. As a result of pressures brought about by the transparency law, the assets and liabilities of every civil servant are now available in the public domain, and are updated annually.

5 Judges’ assets: A 1997 resolution on judges declaring their assets to the Chief Justice was not put into practice until 2010, when RTI activist Subhash Aggarwal asked the Supreme Court about it. While a legal battle (which is still ongoing) began on whether the office of the Chief Justice of India is a Public Authority under the RTI Act, it posted details of assets and liabilities of all judges on its web site. Several High Courts followed the Supreme Court’s lead.

6 Exam results: Applicants for government jobs and some RTI activists asked for making public marksheets, answer keys, etc., and it was as a result of those demands that the selection processes of the UPSC, IITs, UGC etc. became more transparent. The UPSC remains among the most resistant organisations — even so, the existing levels of transparency are owed almost entirely to the RTI Act.

7 Personal staff of MPs, ministers: In 2013, an RTI-based investigation by The Indian Express showed that 146 MPs had employed close relatives like fathers, children, spouses as their ‘Personal Assistants’ to keep the sanctioned allowance of Rs 30,000 within the family. It was also revealed that several ministers had employed personal staff in violation of norms prescribed by the DoPT. The reports prompted the Rajya Sabha Ethics Committee to intervene, and the NDA government issued specific directions to put an end to such practices by ministers.

8 Accessible file notings: After a series of orders and reminders by the CIC, the government, in 2012, made available file notings under the RTI Act. This has created pressure on bureaucrats to write properly on files. Accessing file notings on a decision was unthinkable before the implementation of the RTI Act.

9 Scams exposed: Several scams were exposed using the RTI Act, including the Adarsh Housing scam, which resulted in the exit of the Chief Minister of Maharashtra. RTI was also used in the 2G, coal blocks allocations and Commonwealth Games scandals. Activists have used RTI widely at the state level as well.

10 I-T returns of parties: In 2008, CIC ordered the disclosure of I-T returns filed by political parties — which triggered a battle for bringing political parties under the purview of RTI. A CIC order of June 2013, declaring political parties to be Public Authorities under the RTI Act, has been challenged by the government.

Political parties

·         The Central Information Commission (CIC), consisting of Satyanand Mishra, M.L. Sharma and Annapurna Dixit, has held that the political parties are public authorities and are answerable to citizens under the RTI Act.

·         The CIC, a quasi-judicial body, has said that six national parties - Congress, BJP, NCP, CPI(M), CPI and BSP and BJD - have been substantially funded indirectly by the Central Government and have the character of public authorities under the RTI Act as they perform public functions.

·          In August 2013 the government introduced a Right To Information (Amendment) Bill which would remove political parties from the scope of the law.

·          In September 2013 the Bill was deferred to the Winter Session of Parliament.

·         In December 2013 the Standing Committee on Law and Personnel said in its report tabled in Parliament.

It’s 2 to 1 on RTI: While PM Modi and Supreme Court support transparency, CIC is in denial

December 31, 2015

In 2015, the Right to Information Act celebrated 10 years. The year itself was a peculiar one.

When the NDA government took the oath of office on May 26, 2014 it was widely believed that the Right to Information (RTI) Act, one of the flagship programmes of the outgoing UPA government, would not be on the new government’s agenda.

Meanwhile, the Supreme Court’s observation of 2011 — that officials need to furnish only such information which already exists and is held by the public authority and not collate or create information — was being widely used to deny access to information. And since the inception of the Act, the Central Information Commission (CIC) had passed orders in favour of transparency, embarrassing the government and courts quite often.

In each case, 2015 saw something of a reversal: Prime Minister Narendra Modi spoke in favour of RTI and the Supreme Court made another observation which helps information seekers. The watchdog CIC, meanwhile, has been returning thousands of second appeals and complaints for technical reasons every month.

Several RTI activists found that officers of various departments who had earlier shared information, suddenly started to claim exemptions and deny information on similar applications after the change of regime at the Centre in May 2014. This, despite the Department of Personnel and Training (DoPT) issuing many circulars and reminders with regard to RTI under new government. For instances, it asked all public authorities to standardize RTI fee and upload RTI replies on their respective website.

It proposed bringing all public sector financial institutions, banks, all zones of Railways, Maharatnas, Navratnas, central universities and educational institutions, central excise and income tax offices under online portal of RTI. However, the perception that the Modi government was anti-RTI was enough for public authorities to deny information.

At the annual RTI convention on October 16, PM Modi spoke on the RTI Act for the first time: “Citizens should not only have the right to get copies of documents but also ask question and demand accountability from public authorities because the right to ask questions is the very foundation of democracy and it will reinforce their faith in democracy,” he said. The PM had also appealed to government officials to learn from the types of RTI queries coming to them and reform their procedures.

On December 16, the Supreme Court, in the matter of RBI versus Jayantilal N. Mistry and others stated, “It had long since come to our attention that the Public Information Officers (PIO) under the guise of one of the exceptions given under Section 8 of RTI Act, have evaded the general public from getting their hands on the rightful information that they are entitled to.”

This was an important observation because many public authorities had been widely quoting the observation made earlier by Supreme Court Justices RV Raveendran and AK Patnaik in their order dated August 9, 2011, “The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties.”

While the government and the judiciary were seen to be strengthening the RTI, the CIC was in denial. The beauty of the RTI Act is the simplicity with which anyone can use it. The DoPT had earlier issued a circular saying that, “The application can be made on plain paper. The applicant should mention the address at which the information is required to be sent.”

In 2015 on an average, 1,260-second appeals and complaints were returned by the CIC every month because they did not have the attached required documents or they were not in the `proper’ format.

Best of 2015; Eight Significant RTI Verdicts from Supreme Court, High Courts and CIC

Nation celebrated the 10th Anniversary of the Right to Information Act in 2015. This year witnessed some landmark as well as regressive orders from the Constitutional Courts, Central and State Information Commissions on Right to Information. LiveLaw has reported almost all important verdicts. Here is a list of most significant RTI Verdicts from Supreme Court, High Courts and Central Information Commission.

1.      RBI under RTI Act (SC) Supreme Court in a landmark decision (Reserve Bank of India v. Jayantilal Mistry) declared that RBI does not place itself in a fiduciary relationship with the financial institutions because, the reports of the inspections, statements of the bank, information related to the business obtained by the RBI are not under the pretext of confidence or trust. Writing the judgment for the bench, Justice M.Y. Eqbal, expatiating on the nature of functions of the banking sector regulator said: “RBI is supposed to uphold public interest and not the interest of individual banks. RBI is clearly not in any fiduciary relationship with any bank. RBI has no legal duty to maximize the benefit of any public sector or private sector bank, and thus there is no relationship of ‘trust’ between them. RBI has a statutory duty to uphold the interest of the public at large, the depositors, the country’s economy and the banking sector. Thus, RBI ought to act with transparency and not hide information that might embarrass individual banks.

2.       Medical Expenses of Judges cannot be revealed under RTI: SC Supreme Court of India in Subhash Chandra Aggarwal vs. Registrar General, Supreme Court of India held that the medical expenses of Judges are not qualified to come within the ambit of the Right to Information Act. The Apex Court rejected an appeal against Delhi High Court decision which had held that information about doctor’s visit expenses of judges and their families can’t be revealed.

3.      Office of Attorney General under RTI  [Delhi HC) Delhi High Court in Subhash Chandra Agrawal v. Office of AG  held that the office of the Attorney General of India is a public authority under the Right to Information Act. The Court decided the same while hearing a writ petition filed by RTI Activist Mr. Subhash Chandra Agrawal, which was against the order passed by full bench of CIC wherein the Central Information Commission had held that the office of Attorney General was not a public authority under the RTI Act.

4.        RTI can be used even if information not relevant or germane and even if applicant has access to material through other means; Delhi HC Setting aside an order passed by the CIC, the Delhi High Court in Adesh Kumar v. Union of India remanded a case back to CIC for consideration in the light of the observations. Justice Vibhu Bakhru emphasized on two points, first being that the question whether the information sought by the petitioner is relevant or necessary, is not relevant or germane in the context of the Act; a citizen has a right to information by virtue of Section 3 of the Act and the same is not conditional on the information being relevant. The second point was that the petitioner has access to the material relied upon by the prosecution does not prevent him from seeking information, which he considers necessary for his defence.

5.      Copy of FIR under RTI.

 A division bench of Kerala High Court comprising of Chief Justice Ashok Bhushan and Justice A.M. Shafique in Jiju Lukose vs State of Kerala held that the police authorities are obliged to provide the copy of the FIR on an RTI application, unless an appropriate authority decides it is exempted under section 8 of the RTI Act.

6.        CIC directed CBSE to pay Rs 25,000 as compensation for denying RTI seeking copy of answer sheets .

The Central Information Commission in Vijay Kumar Mishra v. CBSE directed the Central Board of Secondary Education (CBSE) to furnish the copies of answer-scripts sought for by the father of a student, and to pay a compensation of Rs.25, 000 to the parent for harassing him and compelling him to sign illegal undertaking to give up rights. The Information Commissioner also issued show cause notice to then CPIOs of CBSE who refused information sought for. Rejecting the grounds on which the CBSE denied the natural guardian from exercising his legal duty to secure the legal interests of his son including his right to information the information commissioner Prof. M. Sridhar Acharyulu said “The CBSE has no authority to impose such restriction on the rights of minor and his guardian.” The Commission also directed the CBSE to put in place such system with conducive practices by which the Right to information is not limited but facilitated, by removing the obstacles such as undertaking to give up their legal rights.

7.      Disclose Union Cabinet note on NJAC:

CIC Central Information Commissioner M Sridhar Acharyulu in S.N.Shukla v. Department of Justice directed the Department of Justice on 7.1.2015, to disclose the Union Cabinet note and details about its decision to establish National Judicial Appointment Commission.The Department of Justice had refused reasoning that it was a cabinet secret and was exempted u/S 8 (1)(i) of RTI act.

8.      State is duty bound to provide easy access to up-to-date Legal Information to its citizens;

 CIC Chief Information Commission has in Vansh Sharad Gupta v. PIO Legislative Department  held that State has a duty to inform citizens about the Law as and when it was made and the citizens also have right to know of the Law. This observation by the commission was made by Information commissioner Prof. M. Sridhar Acharyulu (Madabhushi Sridhar), in a complaint filed by a law student from National Law School of India University, Bangalore. CIC also ordered  to pay Rs.10000/- as a token compensation to the library of the National Law School of India University, Bangaluru, for causing loss of time of several law students.

The Supreme Court Still Adamantly Refuses to Yield to RTI

While the government often comes under fire for not effectively implementing the RTI Act, few have noticed that India’s highest court violates the Act routinely, and with an impunity that makes the government’s evasion of the RTI Act seem benign.

Consider the following:

·         On 20^th February 2008, Satnam Singh, a prisoner in Ludhiana’s Central Jail sent a Right to Information (RTI) request to the Supreme Court (SC) asking for a copy of its guidelines on police reforms. The Public Information Officer (PIO) of the SC denied the request and referred Singh to the SC website. Singh filed a first appeal pointing out that as a prisoner, he had no access to a computer, and that, by not sending him the information, the SC was denying him his right. Hearing the appeal, the Registrar, SC too denied the request, now asking him to apply under the Supreme Court Rules 1966, instead of the RTI Act.

·         On 10^th November 2007, Subhash Chandra Agrawal filed an RTI request with the SC asking for information concerning declaration of assets by Supreme Court Judges, among other things. The PIO denied the request, claiming he did not hold the information. Agrawal filed a first appeal asking that his application may be transferred to the Public Authority holding the information. The Registrar asked the PIO to re-consider the request, but he denied the information again. Agrawal moved the Central Information Commission (CIC) which in January 2009, asked the PIO to furnish the information [PDF].The SC challenged this order twice before the Delhi High Court (HC) even as it made some information about judges’ assets public on its website, but the HC upheld the CIC’s ruling.

·         In 2007, N. Anbarasan filed an RTI request before the Karnataka High Court (HC) for information pertaining to the scrutiny and classification of writ petitions, among other things. The PIO denied the information and asked Anbarasan to apply under the Karnataka HC Act and Rules. Anbarasan approached the Karnataka Information Commission (KIC), which ruled in his favor. The PIO challenged the KIC’s order before the HC, which quashed it. Subsequently, AKM Nayak, the State Chief Information Commissioner, and a former Additional Chief Secretary, appealed against the HC ruling before the SC. The SC not only dismissed the appeal but fined Nayak 1 lakh rupees for “wasting public money for satisfying their ego.” [PDF]

Although the SC frequently agonises over governments’ lack of transparency, its own Registry has steadfastly resisted yielding information under the Act. In the past decade of the Act’s existence, the SC has fought many RTI applicants tooth and nail, forcing them to the stage of second appeal. Where the CIC has ruled in favor of the applicants, the SC has typically challenged its decisions before the Delhi HC.

The SC has fought these battles not for some significant intrusion of transparency, but for routine matters such as providing pendency figures: for example, the applicant who sought this information in 2009 had to wait until 2014 just to get the Delhi High Court to rule that the  [PDF] SC may provide the information.

I was unaware of the SC’s hostility towards the RTI Act, until two years ago, when I called the office of the Assistant Registrar & PIO to confirm the address where I should send an RTI request. For my research, I wanted a copy of the affidavits filed in a public interest litigation (PIL) heard by the SC between 1999 and 2004.

The official who answered my call wouldn’t identify himself, and asked me if I was party to the case. When I answered no, he said, “We do not provide copies of the judicial record to non-parties,” and hung up. In all my experience of seeking information under the RTI Act, never before had an officer declined to provide information so transparently. I called back to ask how might one access judicial records. The official asked me to look up SC Rules 1966.

RTI Act vs Supreme Court Rules

As I found out after reading about several RTI cases involving the SC, referring applicants to its own rules is a significant tool deployed by the SC to keep the RTI Act at bay. Order XII, Rule 2 of the SC Rules 1966  [PDF] says:

“The Court, on the application of a person who is not a party to the case, appeal or matter, may on good cause shown, allow such person search, inspect or get copies of all pleadings and other documents or records in the case, on payment of the prescribed fees and charges.”

In several ways, this rule gives the SC greater powers to withhold information from citizens, vis-à-vis the RTI Act. Unlike the RTI act:

·         The rule insists on the applicant providing a reason, and makes the availability of information contingent upon “good cause shown.”

·         It prescribes no time limit within which information is to be provided.

·         It lists no penalties for delaying or failing to provide the information.

·         It has no mechanisms for appeal.

These inconsistencies have to be resolved in favour of the RTI Act as per the non-obstante clause provided in Section 22 of the RTI Act. Yet, I found that the SC has been maintaining that it can deny RTI requests, and limit citizens to the SC Rules.

The SC, represented by its Assistant Registrar and Registrar has been relying on two ruses. First, as per the SC Rules, it was “the Court” [PDF] which could take a decision on admitting requests to access judicial records and the humble Registrar and the humbler Assistant Registrar could scarcely usurp the authority of “the Court.” Second was the ruse that the RTI Act, under Section 6(3), allowed Public Authorities to frame rules to access information and the SCR were Supreme Court’s Rules to address RTI. By this logic, the Supreme Court had framed rules in 1966 itself anticipating the RTI Act, which came after 40 years.           

The Role of the CIC

The dispute over RTI and SC Rules came before the CIC as early as 2006 – a year after the passage of the Act – in the case of Manish Khanna vs. The Supreme Court of India. [PDF] The appeal was heard by former bureaucrat and then Chief Information Commissioner, Wajahat Habibullah. Ignoring the four fundamental inconsistencies listed above, Habibullah startlingly ruled that there was “no inherent inconsistency” between the Act and Order XII Rule 2. In his view, Rule 2 merely provided an “alternative procedure” to access the information without denying it in any way – ignoring the “on good cause shown” condition.

With this as the foundation, he ruled that the Rule 2 was a “special enactment,” not superseded by a general law enacted later. This ruling established the precedent by which the CIC has consistently ruled in favour of the SC Rules 1966 against the RTI Act.

By my rough calculation, the SC’s refusal to provide information about judicial records under the RTI Act has come before the CIC nearly 50 times in the last ten years – this is just counting the cases which have been decided by the CIC; many more await a hearing. Keeping in mind that not every applicant has the time, resources and the skills to draft first and second appeals, one can say that a very large number of RTI requests are being summarily denied by the SC each year – conservatively speaking about 20 annually. Thus, on the back of this ruling, the SC Registry has found a third ruse to deny information: citing the precedent set by Habibullah’s ruling.

The only exception to this has been a decision in 2011 by Information Commissioner Shailesh Gandhi, who observed that Order XII curtailed the fundamental right of citizens to free information because of the aforementioned inconsistencies. He ruled [PDF] that the PIO must provide information subject to the provisions of the RTI Act, and that it was up to applicants to decide whether they wished to seek information under the RTI Act or the SC Rules.

The SC instantly moved the Delhi HC against this ruling, where Justice S. Muralidhar immediately stayed the matter and, further, restrained the CIC from hearing matters on similar questions. The case remains pending before the HC. Perhaps to do away with the criticism that rules framed in 1966 could scarcely be said to address a landmark law enacted in 2005, the Supreme Court revised its rules in 2013. Under SC Rules 2013, issued in August 2014, Order XII Rule 2 has become Order XIII Rule 2 – with no meaningful difference for the information-seeker.

Seeking information

Despite the nameless SC officer telling me outright that they will not provide me with copies of the affidavits I was seeking, I decided in January 2014 to file my RTI request anyway. For good measure, I requested the same information under Order XII, Rule 2 as well. It would be one thing if the SC was providing information to citizens under its own rules, but even that is not the case, as I found out, and as others have experienced too [PDF].

The PIO denied my RTI request and asked me to approach the Court under Order XII Rule 2, which I had already done. This second request got no reply for over a month, at which point I followed up with the SC over the phone. After several evasive conversations, an officer finally informed me, again, that they would not release the information to me. When I asked the officer for her name so that I may state this position in my first appeal, she declined and hung up.

I eventually received a reply to my request under Order XII, Rule 2. The Assistant Registrar (Copying) now insisted that I apply under Order XII, Rule 2 read with Order X Rule 6(1), i.e., I present my application for information in person at the filing counter of the Court. This additional hurdle was entirely new, as the SC had not mentioned it before the CIC. Moreover, it is entirely inconsistent with the RTI Act because it limits the availability of information only to those who can make their way to the filing counter of the SC – not the easiest of tasks for most citizens, particularly the vast majority of Indians who do not live in Delhi.

I filed a first appeal before the Registrar, pointing out that SC had refused information through both the routes, and invented new hurdles to access information. The Registrar found my appeal “to be without any merit” and dismissed it. I filed a second appeal before the CIC in July 2014, which is yet to be scheduled for hearing. 

In my experience of filing RTI requests with multiple public authorities, no government body comes close to the SC in terms of contempt towards RTI applications. This attitude seems to be pervasive in the higher judiciary. The summary denials, fighting ordinary applicants before the CIC, and even hauling them before the Delhi HC suggests that as far as India’s higher judiciary is concerned, transparency is good for others, not for itself.