Right to Information in India

Stamford Journal of LawNumber 3 July 2012

DEPARTMENT OF LAW

Stamford University Bangladesh

AdvisersProf. Dr. M.A. Hannan FerozPresident, StamJord University BangladeshProf. Dr. Majibur RahmanVice Chancellor, StamJord University Bangladesh

EditorDr. Salimullah Khan

Associate EditorAnisur Rahman

MembersDr. M. BadruddinDr. Mizanur RahmanFarhana RezaSyed Masud Reza·Rokeya Afroz

Published by the Registrar, Stamford University Bangladesh744, Satmasjid Road, Dhanmondi, Dhaka 1209

Printed at Stamford University Press

ISSN: 2072-3466

© Stamford University Bangladesh

Price Tk. 300 (institutional)Tk. 200 (students)

TABLE OF CONTENTS

Guide to contributors vu

Editorial note ix

Essays

Justice Rama PalAn independent judiciary

Salimullah KhanJudiciary and the republic 23

Shafiqur Rahman KhanA race between race and catastropheMinority issues in the prevention of crime underinternational law 57

Susanta Kumar MallickRight to information in India 105

Anisur RahmanIslamic law and the colonial encounter 131On the discourse of 'Muhammedan law' in British India

Syed Masud RezaBeyond the principle of self-determinationOn the right to return of Palestinian refugees 151

SUSANTA KUMAR MALLICK

Right to information in India

Abstract

The Right to Information Act (2005) promises every citizen

of India a right to information and; aims at enabling the

citizens to have access to information under control of the

public authorities with focus on promoting transparency and

accountability in the working of public authorities.It is a

recognized fact that information is power and an informed

citizenry enables a democracy to be more vibrant and

accountable to the needs of the people. To be sure,

democracy connotates active participation of the people in

the governance process which helps in fostering a

transparent, openness and accountable government that

serves the need of the people and stand against arbitrariness

and corruption by the agencies of state. Set in this

background, the present paper critically analyzes the RTI Act

which came for the purpose of administrative reforms on

large scale in India. Broadly, the chapter is divided into three

parts. The first part deals with the historical evolution of the

Act in the international and national arena. It is argued that

the long standing public demand and favorable support by

* SusantaKumar MaIlickis senior research fellow in the Centre for theStudyof Lawand Governance,JawaharlalNehru University,New Delhi.

StamJordJournaI cif Law, No. 3 Uuly 2012), pp. 105-129. Published bythe Department of Law, Stamford University Bangladesh, Dhaka.ISSN : 2072-3466.

105

3 Stamford Journal of Law

the courts to make bureaucracy accountable and corruption

free has made a great role in the emergence of this Act. The

second part of the chapter highlights the basic concept of the

information and the utility of the Act for the purpose. In

total, the Act has strengthened the democratic polity of India

but it also requires an .active role of the civil society to

remove the emerging shortcomings. The third part discusses

with the important conditions to implement the Act such as

transparency and accountability with an opening of attached

concerns related to its 'application and function.

I IntroductionIt is a well known fact that despite six decades of investmentin the welfare and development programs for the poor andthe marginalized sections of the Indian population, a largeproportion of it continues to remain in the clutches ofpoverty. In fact, most of them do not even have the access tobasic necessities of life. AsVikas Jha (2009) rightly points outthat the reason behind the exclusion of the poor people fromthe basic information is due to the failure of the governancemechanisms such as lack of accountability and transparency,hence, resulting in large scale corruption in governance. Infact, the programmes meant for the development and welfareof the poor and needy does not reach to them as it shouldhave been. In addition to these, the welfare and developmentprogrammes which have been implemented by thegovernments are not reaching to the poor people. Thebenefits of the developmental programmes are beingcaptured by the elite at the cost of the poorer segments. Inthese circumstances, it has been argued that what we need isa transparent and accountable governance system thatprotects the people who are excluded from the benefits of

106


the various developmental programmes meant for them 1 .

It has been argued, the right to information is a revolutionaryinitiative towards recuperating the governance system inIndia. The basic goal of the right to information is to ensureand establish a corruption free governance system that isresponsive to the needs of the people directly or indirectly. Itis a means of empowering the poor and the weaker section ofthe society to deal with public authorities laden with red-tapism and corruption and to ensure that the variousrural! urban development and social welfare schemes deliverbenefits to the people as intended2.

In this paper, I begin by describing the evolution of theright to information and how it obtained its constitutionalstatus respectively. In the following section I deal with thebasic concepts such as information and explain thesignificance of the right to information. Finally, I look at theobstacles in the process of securing the right to informationbefore I conclude the paper.

11 Theevolution of right to informationIn international law, freedom of information was recognizedas a Fundamental Human Right by the United Nations (UN)at the first session of its General Assembly in 1946. The UNadopted resolution 59 (1) which declared that "Freedom ofInformation is a Fundamental Human Right" (CHRI 2001).In ensuring international instruments on Human Rights,freedom of information was made a part of the Fundamental

1

2

G. Palanithurai, 'Problems and Scope in Handling Right toInformation from Grassroots Perspective', in Indian Journal cifPublic Administration, 55: 3 (july-Scpt., 2009), pp. 4-81-503.

Hemanta Joshi, 'Right to Information in India: Towards TransparentGovernance and Empowered Citizenrv", in Madhya Pradesh Journalcif Social Sciences, 12: 2 (2007), pp. 97-111.

107


Right of Freedom of Expression, which included the right toseek, receive and impart information.· In 1948, the UNGeneral Assembly adopted the Universal Declaration ofHuman Rights (UDHR), which reads as follows:

Everyone has the right to freedom of OpInIOn andexpression; this rights includes freedom to hold opinionswithout interference and to seek, receive and impartinformation and ideas through any media and regardless of

frontiers(CHRI 2001 :5).

The principle of maximum disclosure was adoptedglobally which meant that all public institutions are obligedto disclose information, which would be denied in extremelylimited circumstances. Moreover, the regional Human Righttreaties like the European Convention cif Human Ri8hts, 1950, the

American Charter on Human and People's Ri8hts 1981, the Inter-

American Declaration cif Principles cif Freedom cif Expression 2000

and Declaration cif the Principle cif Freedom cif Expression in Africa,

2002, have reiterated Article 19 of the UDHR by adoptingFreedom of Expression and Information as a fundamentalhuman right. An insight into the international scenarioreveals that there has been a trend from administrative normof ,secrecy' to freedom of information all over-'.

However, USA, Australia and Sweden are countrieswhere the legislation on openness is a norm rather than anexception. Sweden has a long history of an administrativeopenness and public access to information; here the publicaccess to government documents is a right and non-accessibility only an exception. The credit of being the first

3 S. Chadah, 'Right to Information Regime in India: A CriticalAppraisal', in Indian Journal if Public Administration, 50: I (jan-March, 2006), pp. 1-17.

108


country, which guaranteed the right to information to itscitizens, also goes to Sweden. Finland adopted a law on theright to information in 1951. France has also accepted theprinciple of citizen's access to information. Countries likeNorway and Denmark have also statutorised the public accessto official information. Norway adopted the Freedom cif

lriformation Act, 1970 besides the constitutional right to accessthe public documents. Denmark promulgated the Public

Administration Files Act, 1985. In USA, the foundation ofopenness and right to information rests in theconstitutionally guaranteed fundamental right of freedom ofspeech. In U.K, the Freedom of Information Act was passedon November 30, 2000. It gives a general right to public ofaccess to all types of 'recorded' information held by publicauthorities. Canada has the access to Information Act, 1985and complementary Privacy Act, 1983. South Africa remainsthe only African country to have passed freedom ofinformation legislation4.

The 1996 Constitution of the Republic of South Africa isperhaps unique, not only in the breadth of its guarantee offreedom of information, but also in that it requires theadoption of national legislation to give effect to this right,within three years of its coming into force. The enablinglegislation, the promotion of access to Information Act, cameinto effect in March 20015 (Dhaka 2009).The table l:>elow shows the enactment of Right toInformation Act of some of the countries.

4 lbid, pp. 2-5.

5 RajivDhaka, 'Right to Information Act and Good Governance:Operational Problems and Road Ahead', in Indian Journal if PublicAdministration, 55:3 (July-Sept., 2009), pp. 534-61.

109


Table: 1.5

IS.No Right to Information Act Passed Year Period for givingby the Countries Information

1 Sweden 1776 Immediately2 Finland 1951 14 Days3 Denmark 1970 NA4 Norway 1970 1 to 3 Days5 Austria 1987 NA6 United States 1966 20 WorkingDays7 France 1978 NA8 Netherlands (Holland) 1991 2Weeks9 Australia 1982 NA10 Canada 1983 15 Days11 Columbia 1985 10 Days12 India 2005 30 Daysand in

Lifeor Libertycaseit is 48 hours

13 Japan 1999 30 Days14 South Africa 2000 NA

Source:Orissa Information Commission,AnnualReport, 2005-6:11-12.

In India, the Constitution does not expressly provide anyright to freedom of information. Part III of the Constitutiondealing with Fundamental Rights is conspicuously silent onthe right to freedom of information. However, the fact thatIndia has ratified Article 19 of Universal Declaration ofHuman Rights dealing with the right to "seek, receive andimpart information" may be regarded as it adopting the rightto information. In fact, the right to information in Indiaemanates from various Supreme Court judgments that readthis valuable right as part of Article 19( 1) (a) guaranteeing

110


the "right to freedom of speech and expression" (CHRI2001). Over the years, the Supreme Court has consistentlyruled in favour of the citizen's right to know. The nature. ofthis right and the relevant restrictions thereto, has beendiscussed by the Supreme Court in a number of cases, as wewill note below.

Giving the judgment in the case of Cricket Association ofBengal vs. Union of India (1995), the Court observed thatthe right to impart and receive information from electronicmedia was included in the freedom of speech. The airwaveswere held to be public property and hence distribution ofthese waves between government and private channels was tobe done on an equitable basis.6

In the case of Bennet Coleman v. Union if India7 (1973) theSupreme Court stated that the right to information was heldto be included within the right to freedom of speech andexpression guaranteed by Art.19 (1) (a) of the Constitutionof India. This case, which was about the restriction ofnewsprint to newspapers, led the Supreme-Court to observethat such restriction meant that an infringement of the rightof the citizen's right to read and therefore, an infringement ofthe right to information. Thereby Article 19 (1) (a), whichguarantees the right to freedom and expression would beinfringed if the news print were not to be provided to thenewspaper.

Right to information was also interpreted under Article21 which protects the right to food, education, health andpersonal liberty from restraints and illegalities. Wheninformation which is related to these basic rights is not

6 Secy., Ministry cif 1&]3,Govt. cif India v. Cricket Association cif Benqal, 1995sce, p. 161.

AIR ( 1973) se, p. 60.7

111

In a government of responsibility like ours, where all the agentsof the public must be responsible for their conduct, there canbe but few secrets. The people of this country have a right toknow every public act, everything that is done in a public way,

by their public functionaries. The responsibility of officials to

explain and to justify their acts is the chief safeguard against

oppression and corruption (State of UP vs. Raj Narain, 1975,4SCC at 428).


disclosed, can this be seen as infringing the right toinformation? This question was answered by Justice Mathewin the case of State of UP vs. Raj Narain (1975), whoobserved that

In the case of S.P.Gupta v. Union cif India (1982), the sevenJudges Constitution bench added a fresh, liberal dimension tothe need for disclosure in matters relating to public affairs.The Court held that in regard to the functioninggovernment, disclosure of information must be an ordinaryrule, while secrecy must be an exception, justifiable onlywhen it is demanded by the requirement of public interest(S.P.Gupta v. Union of India, AIR 1982 SC at 149).Moreover, in the case of P.U.C.L.V Union of India (2004), itwas held that the right to information was further elevated tothe status of a human right, necessary for making governancetransparent and accountable. It was also emphasized thatgovernance must be participatory (P.U.c.L. vs. Union ofIndia, 2004, SCC at 476).

These judicial shifts were accompanied by a changedpolitical discourse on secrecy and governance. For instance,the Mathew Commission (1982) in its report recommendedamendment to Section 5 of the Official Secrets Act (1923) onthe ground that it suppressed the freedom of press and voicesof the poor and marginalized section of the sOciety8. The

8 Ibid, pp. 1-17.

112


Commission also emphasized the citizen's right to know,hereby reflecting some of the shifts in the judicial discourse.The clearest exposition of the right to know was expressed in1989 when the V.P.Singh's government declared its decisionto make right to information a fundamental right. Heexpressed his intension in April 1991 in the 20th Conferenceof Ministers of Information and Cinematography as "an opensystem of governance is an essential prerequisite for thefullest flowering of democracy'i". However, it took the heroicefforts of a people's movement to bring a change in thelegislation. I turn to the history of this movement in thefollowing section.

II People's struggle for right to informationThe movement for right to information in India may betraced to the efforts of Mazdoor Kissan Shakti Sangathan(MKSS), an organization committed for the empowerment ofworkers and peasants in a remote village of Devdungari(Rajsamand District, Rajasthan) in early 1990's. Themovement had started to expose the corruption in thefamine relief work by demanding information related tocopies of bills, vouchers and muster rolls of workersrecorded in government files, where their demand forminimum wages was repeatedly denied. Thus, the demandfor minimum wages, which started in a small backwardvillage of Rajasthan, became a fight for right to information.It was an important step towards participatory governance10.The movement soon spread across India. From a very modestbeginning in the village of Rajasthan , the success of MKSShas

9 Ibid, pp. 6-8.

10 Aruna Roy, et al, 'The Right to Information Act 2005: A SocialDevelopment Perspective', India: Social Development Report, OUP,(New Delhi: Oxford University Press, 2009).

113


been a source of inspiration for activists in India11 .

In 1995 the Press Council of India drew up the firstblue print for the Information Bill. It asserted that theinformation, which could not be denied to the Parliament orState Legislatures, should not be denied to the citizen12. In1997, the Government of India decided to introduce theFreedom of Information Bill. It suggested that each state dolikewise, to provide access to information in areas within itsjurisdiction. As a result several states enacted Right toInformation Act. In 1997, a working group on "Right toInformation and Transparency" under the chairmanship ofShri H.D. Shourie was appointed to examine the feasibilityand need for full-fledged Right to Information Act. On thebasis of the recommendations made by the said group, a billtitled 'Freedom of Information' was drafted. It wasintroduced in the Parliament on July 25, 2000 after approvalby the Cabinet. It was referred to the Parliamentary StandingCommittee on Home Affairs, which in its report submittedto Parliament on July 25, 2001, agreed with the mainprovisions of the Bill but gave a: few suggestions andobservations. However, before the Bill could be passed,Parliament was dissolved and the bill lapsed 13 .

Subsequently, the National Common MinimumProgramme of the United Progressive Alliance Government

11 Anil Monga andA. Mehta' Right to information Act, 2005: Key forEffective Implemention' in Indian Journal cif Public Administration,vol. LIY,no.2 (2008), April-June, pp. 297-314.

12 S. Chadah, S , 'Right to Information Regime in India: A CriticalAppraisal' , Indian Journal cif Public Administration, 50: 1( Jan-March. 2006), pp. 1-17.

13 Anil Monga and A. Mehta 'Right to information Act, 2005: Key forEffective Implementation', in Indian Journal cif Public Administration,vol.LIV, no.2 (2008), April-June, pp. 297-314.

114


stipulated that 'the Right to Information Act will be mademore progressive, participatory and meaningful'14. In thisregard, the National Advisory Council proposed that thereshould be maximum disclosure and minimum exemptionsconsistent with constitutional provisions, independent appealmechanisms, penalties for failure to provide information asper the law, effective mechanisms for access to information,and disclosure by authorities. On the basis of theserecommendations, the Government of India decided torepeal the Freedom if lriformation Act, 2002, and enacted a freshlegislation, called the Riaht to lriformation Act, 2005. The Actwas passed in the Parliament on 15 June, 2005 and came intoforce on 12 October, 2005.

III Right to information Act (2005)As mentioned above, the Riaht to lriformation Act (RTI) is a lawenacted by the Parliament of India to give every citizen ofIndia a right to information. Passed by the Parliament on 15June 2005, it came into force on 13 October 2005. The Actextends to the whole of India except the state of Jammu andKashmir. The main aim of the Act is to provide the citizensthe right to information which will enable them to haveaccess to information that controlled by public authorities.The Act seeks to promote transparency and accountability inthe working of every public authority, besides providing forthe constitution of Central Information Commission andState Information Commissions. The Riaht to lriformation Act isconstituted by a number of assumptions about information,right to information, accountability, transparency,

14 S.K. Sarkar, 'Right to Information:Towards Transparecy and Openness'

in Splander in the Grass: Innovations in Administration ( PenguinEnterprise, Penguin Books India, Govt. of India, 2008), pp. 42.

115


governance, good governance, corruption and publicauthority. In this section, I will briefly examine thesecategories.

Information is viewed as power. The term informationhas been derived from the Latin word 'formation'; formmeans giving shape to something and forming a pattern.Information adds something new to our awareness andremoves vagueness of our ideas. Nimmer (1992) also looks atinformation as power. He says that "information, unlikegoods, can be used without being used up and can be soldwithout being given up. One can sell and deliver informationto another but still retains the information in his possessionand for his own personal use,,15. Many scholars have arguedthat information is power and secrecy is the anti-thesis ofdemocratic governance. In many ways, the government isseen as a "repository" of information over the citizens has aright. Information then is conceptualized as something whichbelongs to citizens. This is incorporated in the governanceagenda as a technique of enhancing citizen's participation ingovernance. Some scholars such as S.L.Goel (2007) think ofinformation as currency which people can use purchasepower, while other scholars think of information as atechnique to exercise freedom of choice, where informedchoice becomes the basis of exercising Citizenship rights 16Moreover, Singh and Jain have observed that information ispower that provides people with the knowledge to demandpolitical, economic, and social rights from their governments(2009).15 RT Nimmer, et al , 'Information as a Commodity: New Imperatives

of Commercial Law' in Law and Contemporary Problems, .55:.3(1992), pp. 105.

16 A. K. Mukhopaclhay, 'The RTI Act: A Critical Assessment' in Indian

Journal cfPublicAdministration, 55:3 (july-Sept., 2009), pp. 434-54.

116


The RTI Act similarly frames information as a form ofpower which is held in a government's repository andbelongs to the citizens. However, citizens cannot getinformation in what has been defined as the clause ofexception, to which I will return later. First, let us look atthe definition of information in the Act. Section 2(f) of theRTI Act, 2005 defmes information as any material in anyform, including the records, documents, inspection of thework, memos, e-mails, opinions, advices, press releases,circulars, orders, logbooks, contracts, reports, papers,samples, models, data material hold in any electronic formand information relating to any private body which can beaccessed by a public authority under any law for the timebeing in force. Section 2 (i) defines 'record' as including anydocument, manuscript and file, any microfilm, microficheand facsimile copy of a document, any reproduction of imageor images embodies in such information and, any othermaterial produced by a computer or any other device (Formore details see RTI Act,2005).

The category of public authority however has beencontested. The term public authority is defmed under Section2 (h) of the Act. The defmition of 'public authority' under theAct consists of two parts. First, it specifies that the bodiescreated by or under the writ of the Constitution as well as bylaws made by legislatures are public authorities. Besides,under the Act, all constitutional, statutory bodies, bodiescreated by government notification and local self governmentbodies are also public authority. Second, those bodies whichare owned, controlled or substantially financed directly orindirectly by funds provided by the appropriate government(both central and state) are public authorities 17.

17 P. Saxena, 'Public Authority and the RTI' in Economic and Political

Weekly, .44:16 (April, 2009), pp. 13-16.

117

The Right to Information Act was heralded as a path-breaking legislation by nongovernmental organizations as alaw which signaled the march from darkness of secrecy to thedawn of transparency. It was seen as tool by which awarenesscould raise to change the mindset of public authorities whichis often clouded by suspicion and secrecy. It was also as apowerful means for fighting corruption. These groups hopedthat the effective implementation of the Right to InformationAct creates an environment of vigilance which will help inpromoting a more participatory democracy 18.

Indeed, the right to information is not limited only to theelite or middle class people. It has become a tool of survivalfor the most disadvantaged sections, from urban slumdwellers to tribals in far flung and remote areas. Non-governmental organizations have noted that despite variousgovernmental efforts towards alleviating poverty, people arenot able to avail the basic needs like food, water and healthfor the sheer lack of information (CHRI 2001). Being able toexercise this right was seen as making a difference betweendrudgery and dignity, or sometimes between life and death.

Therefore, the right to information has been seen as a keyto the working of democratic governance and is vital forpromoting open govern.ance, strengthening transparency,participation, the rule of law and ensuring accountability ofpublic decision makers. However, we must also note that forpeople to exercise their rights, material conditions whichallow the exercise of rights have to be created.

Accountability, simply speaking, implies, 'holding publicofficials responsible for their actions and establishing criteriato measure the performance of public officials, as well as

18


For Details see, 'Right to Information: Master KeyGovernance', First report, Second AdministrativeCommission(ARC), Government of India. June, 2006.

118

to GoodReforms


rights and mechanisms to ensure the standards are met' 19.Acomplex definition of it is that "accountability is a liability toreveal, to explain and to justify what one does; how onedischarges responsibilities, financial or other, whose severalorigins may be political, constitutional, hierarchical orcontractual". It can be used synonymously with such conceptsas responsibility, answerability and enforcement amongothers. In fact, it postulates removal and absence ofcorruption, malpractice, mismanagement and abuse ofdiscretion. The UNDP (2005) states that the accountabilityfactor demand decision-makers in government, private sectorand civil society organizations to be responsive to the publicas well as to institutional stakeholders. Moreover,accountability is defined clearly by Pratap Bhanu Mehta as"the ability of one actor to demand and explanation of anotheractor for its actions and reward or punish the actor on thebasis of its performance or its explanation"20 (Mehta 2005:2).

Transparency is built on the free flow of information. Infact, transparency refers to 'the availability of information tothe general public and clarity about government rules,regulations and decisions' 21. It is clear that in commonparlance transparency is conflated with the right of access toqfficial documents, but it is a much broader notion covering awide set of differing claims. Thus, 'transparency embraces notonly 'openness in government' but also includes conceptssuch as simplicity and comprehensibility'. It is also arguedthat transparency is born out of a desire to enhance19 Mander, H and Mohammed Asif, Good Governance Resource Book,

Books for Change, India, 2004.20 P.E. Mehta, 'Citizenship and Accountability: The Case of India',

Arusha Conference, New Frontiers if Social Policy, New Delhi,December 2005,pp. 12-15.

21 H. Mander, H andAsifMohammed Asif, ibid.

119


democracy. Moreover, it is believed that transparency ingovernment will help to hold officials accountable for themishandling of public time and money, as well as. help toexpose the corrupt and allow the honest to do their jobswithout fear or favour22.

Corruption is a complex phenomenon rooted mostdeeply in bureaucratic; and political institutions. The succinctdefinition utilized by the World Bank (2003) is "the abuse ofpublic office for private gain". In addition to this, theTransparency International (TI) (2007) defines corruption as"the misuse of entrusted power for private gain". In thecontext of public office, corruption is the misuse of publicoffice, power or authority for private gain. Furthermore, itviolates the public trust and corrodes social capital.

As the process of democratization and liberalizationgathered momentum across the world during the latter halfof the 20th century, the issue of governance and later goodgovernance occupied a central stage in the developmentdiscourse. However, the word "governance" was first used bythe World Bank in its report on Sub-Saharan Africa in 1989.The Word Bank define governance as the institutionalcapacity of public organizations to provide public and othergoods demanded by a country's citizens in an effective,transparent, impartial and accountable manner.

On the other hand, UNDP articulates governance as the"exercise of economic, political and administrative authorityto manage a country's affairs at all levels" (1997: 9). Theabove definitions postulates that governance is defined as the

22 Triranjan Raj and Sanjeev Kumar Sharma (2009), 'Right toInformation Act 2005: A Critique with Governance andAdministrative Reforms Perspective' in Indian Journal if PublicAdministration, 55:3 (July-Sept., 2009), pp. 481-503.

120


manner in which power is exercised in the management of acountry's economic and social resources and it refers toreducing corruption and encouraging rule bound behaviour.As Mathur (2008) argues, governance is concerned with thenetwork of relationship of three actors - state, market andcivil society. He further states that it is an interactive processwhere government may like to impose its will but itsacceptance will depend on compliance and action ofothers+'.

The modern concept of good governance goes beyondthe concept of governance in that it includes, among others,participation, transparency, accountability and seeks topromote the rule of law. It ensures that the political, socialand economic priorities are based on broad consensus insociety and that the voices of the poorest and most vulnerableare heard in decision-making over the allocation ofdevelopment resources (UNDP 1997).

IV Obstacles in the path of right to informationThe RTI Act could change the nature of governance if it iseffectively implemented. It could establish a process oftransparent and inclusive governance which could graduallyshift the Indian democracy from a representative one to aparticipatory one24 (Shamshad 2009). However, it has beenobserved through the theoretical and empirical study thatthere are certain things which create obstacles in the path ofeffective implementation of the RTI Act. Some of the majorimpediments in relation to this have been discussed below.23

24

Kuldeep Mathur, From Government to Governance: A Brig Survey cifIndian Experience (Delhi: National BookTrust India, 2008).

A. Shamshad, 'Right to Information: Issues of AdministrativeEfficiency, Public Accountability and Good Governance' in Indian Journal1Public Administration, 55: 3 (july-Sept., 2009), pp. 562-576.

121


Among the major impediments, the culture of secrecy isone of the obstacles that the RTIAct has been facing in recenttime while its implementation. According to James Madison,"people who mean to be their own governors must armthemselves with power that knowledge gives" (in M.V Moily2006). It is held that information is knowledge andknowledge is power holds true in the functioning and successof any democratic society, including India. If there is a greaterinformation availability and accessibility, certainly itcontributes to a fair, open, accountable, responsive andparticipatory governance system and practices. However, it isto be noted, that the public functioning has traditionally beenconducted in secrecy; the power to decide whether theinformation is secret or not, still lies solely with thegovernment. The Government by classifying any documentsas secret can prohibit access to it. There are variousprovisions and statutes which stand against the free-flow ofinformation. Among these provisions, Official Secrets Act,1923 is the one which governs all matters of secrecy andconfidentiality in governance system. Though the SecondAdministrative Reforms Commission (SARC), in its firstreport has correctly identified RTI as the "master key to goodgovernance" and recommended the abolition of India'sOfficial Secrets Acts (1923), but it is very unfortunate th~tthe Indian state continues to keep an vast amount ofinformation within the fold of official secrecy on the groundsof 'sovereignty' , 'integrity' and 'security'.

The Act largely deals with the matters of security andprovides a framework for dealing with espionage sedition andother assaults on the unity and integrity of the nation.However, given the colonial climate of mistrust of people andthe primacy of public officials in dealing with the citizens, the

122


Act created a culture of secrecy. Confidentiality became thenorm and disclosure the exception. Additionally, the CivilServices Conduct Rules, 1964 (which prohibit communicationof an official document to anyone without authorization) andsection 123, 124 and 126 of Indian Evidence Act, 1872(regulating the power of the government to withholdinformation) also tampered with the right to information.

Apart from the above, the matter relating to the non-disclosure of file noting also inhibits the implementation ofRTI. File notings are the ad hoc written notes added to file byofficials and thus can give a critical insight into thegovernment decision -making process25. Section 2(i) (a) ofthe Act defines 'record' to include any document, manuscriptand file. The manual office procedure defines 'file' to cover'notes' and 'appendices to notes'. Further, under PublicRecords Rule, 1997 'file' means 'a collection of papersrelating to public records on a specific subject matterconsisting of correspondence, notes, and appendices'. Thusfrom a legal and technical point of view the term file asunderstood in section (i) (a) of the RTI Act includes filenotings and it can legally be disclosed as per the requirementof the law. It has been pointed out that the significance of file-noting rest in the belief that the public should not only knowthe ultimate decision, but also the process leading to thedecision/v. However, it has been held that disclosure of filenoting will adversely affect the free frank expression ofopinion by the public officials in decision making process(Dhaka 2009). It may also be mentioned that the compulsionof disclosure of file notings will reduce to a great extend the

25 S. Chadah, ibid., pp. 1-17.

26 S. Misra, 'Public Accountability and Administrative Efficiency through

Right to Information: Opportunities and Challenges' in Indian Journalcif Public Administration, 55: 3 (july-Scpt., 2009), pp. 523-532.

123


administrative culture of putting something as part of recordon dictation or in a mechanical manner. Disclosure of filenotings may also considered from the point of view of thepromoting the overall culture of good administrativepractice27 .

The lack of uniformity of RTI rules is another blockagethat hampering the effective implementation of RTI Act. Ithas been observed that there is no uniformity of RTI rulesamong different states of the country. Looking at the fee forobtaining information, some states have prescribedreasonable fee whereas other states, have been charging heavyfee that makes difficult for the common citizens to obtain theinformation. For instance, the application fee is Rs. 500 inArunachal Pradesh; whereas it is free of cost at the villagelevel in the State of Andhra Pradesh. This is not only againstthe spirit of the RTI Act, but also defeats the purpose of theAct28. Hence, this kind of lack of uniformity certainlydemoralizes the basic purpose of the RTI Act.

The obstacles related to the appointment of Central andState Information Commissioners also adversely affects theimplantation of RTI. Though, the RTI Act, 2005 requires thatthe Commissioners should be appointed from the differentcategories of persons having eminence in public life withwide knowledge and experience in law, science andtechnology, social science, management, journalism, massmedia or administration and governance, but it has been27 Sapna Chadah, 'Implementing Right to Information: A Practical

Approach' in Indian Journal cif Public Administration, 55: 3 (July-Sept., 2009), pp. 455-480.

28 Mamta Mokta, and Vivek Jyoti, 'The Right to Information Act 2005:as a Potent Weapon in the Hands of Citizens: Present Status andIssues' in Indian Journal cif Public Administration, 55: 3 (july-Sept.,2009), pp. 594-608.

124


observed that in' reality it is not so. The representative fromthe field of law, science and technology, journalism and massmedia is very low though enough competent are availablefrom these fields for the post of Information Commissions.Moreover, majority of state Information Commissioners arefrom bureaucrats i.e. retired LA.S., who are heading thestate Information Commission and what Mamta Mokta andVivek Jyoti called it, " the state Information Commissions areproving to be the re-employment forums for the retiredbureaucrats especially the former chief secretaries'V'". As aresult it is the bureaucrats who were part of the secrecyregime in the functioning of public administration system fora log a period, may not be in favour of promotingtransparency, which is the great constraint in favour of RTIAct30. To add to this, Mistry says, "the appointment offormer bureaucrats as Chief Information Commissioners andInformation Commissioners has raised fears that RTI regimesmay became just another means for the bureaucracy totighten its monopoly over government information.P]

The lack of awareness among the information seekers andinformation providers about the RTIAct may also hamper theeffective implementation of RTI. It is observed that theguidelines for information providers and seekers have notbeen broadly circulated32. However awareness seems to haveto some amount in the urban areas but the impact is muchless in rural areas. In India only 13% rural people and 33% ofthe urban population have benefited from RTI awarenesscampaigns' (Indian Express 2009).

29 Ibid.

30 Sapna, Chadah, lbid., pp. 455-480.

31 Mistry, Indra J(2006) Breaking the Bureaucratic Mould. Yojana, [an, pp. 1O.

32 Rajiv Dhaka, ibid., pp. 534-561.

125


Related to the above problem is the poor quality ofinformation provided by PIOs. It has been seen that thequality of information provided under the RTI Act to theapplicant is very poor, and sometime it is either incompleteor inaccurate. As the PWC study mentions that more than 75per cent of the RTI applicants are dissatisfied with the qualityof information being provided33 .

The lack of trained PIOs and first appellate authorities isviewed as one of the greatest obstacles in the properimplementation of the Act. It argued that most of the PIOs;do not have adequate knowledge about the Act and the Rules.The main reason is the virtual absence of state trainingpolicy on the RTI Act (Dhaka 2009). As Dey said, "thousandsof citizens sought information under the RTI Act in variousparts of the state but the government had lagged behind increating a conductive atmosphere and making provision forimparting information"(2008: 217). Moreover, lack ofrefresher training and low level of awareness on keyjudgments and information's related to RTI is also acting asthe biggest hurdle in the implementation of the Act34.

V ConclusionThrough the above impediments which are .obstructing theeffective implementation of Act, concludes that the problemslies within the public officials as well with common citizen.Both are still not properly aware about the rules and basicfeatures of the Act. Moreover, irregularities or variationsamong the states while the implementation of the Act,

33 Jain, Abhishek(2009), "RTI Implementation at District Level: Issuesand Challenges", Indian Journal if Public Administration, 55(3): July-Sept. pp.346- 363.

34 Triranjan Raj and Sanjeev Kumar Sharma, ibid., pp. 481·503.

126


certainly decreases its efficacy and significance. As it is statedby the policy-makers and academicians who workedextensively on the impact of RTI in the administration that itfosters an accountability and transparency in the governancesystem. Thus, the right to information is a key to the workingof democratic governance and is vital for promoting opengovernance, strengthening transparency, participation, therule of law and ensuring accountability of public decisionmakers. Furthermore, the right to information is not onlyfundamental for an open and democratic society but is a keyweapon in the fight against poverty and in humandevelopment.

ReferencesChadah, S., 'Right to Information Regime in India: A Critical

Appraisal', Indian Journal if Public Administration, 50: 1(jan-March, 2006), pp. 1-17.

Chadah, Sapna, 'Implementing Right to Information: APractical Approach', Indian Journal if Public Administration,

55: 3 (july-Sept., 2009), pp. 455-480.Dhaka, Rajiv S., 'Right to Information Act and Good

Governance: Operational Problems and Road Ahead',Indian Journal if Public Administration, 55: 3 (july-Sept.,2009), pp. 534-61.

Goel, S.L., "Right to Information and AdministrativeReforms", Indian journal if Public Administration, 53: 3(july-Spt., 2007), pp. 548-70.

Jha, Vikas, "Demanding Accountability from the State:Experience of Civil Society and Citizens on Right toInformation", Participation and Governance, 2: 1 (jan.,2009), pp. 14-33.

127

,'----- -----


Joshi, Hemanta, "Right to Information in India: TowardsTransparent Governance and Empowered Citizenry",Madhya Pradesh Journal of Social Sciences, 12: 2 (2007), pp.97-111.

Mander,H and Mohammed Asif, Good Governance Resource Book

(Delhi: Books for Change, 2004).Mehta, P.B., "Citizenship and Accountability: The Case of

India", paper submitted in Arusha Conference on NewFrontiers of Social Policy held in New Delhi, December12-15,2005.

Misra, S., "Public Accountability and AdministrativeEfficiency through Right to Information: Opportunitiesand Challenges" Indian Journal of Public Administration, 55:3 (july-Sept. 2009), pp. 523-532.

Mokta, Mamta and Vivek Jyoti, "The Right to InformationAct 2005 as a Potent Weapon in the Hands of Citizens:Present Status and Issues, Indian Journal cif Public

Administration,S5: 3 Quly-Sept., 2009), pp. 594-608.Monga, Anil and A. Mehta, "Right to information Act, 2005:

Key for Effective Implementation", Indian Journal cif Public

Administration, LIV: 2 (April-June, 2008), pp. 297-314.Mukhopadhay, A.K., "The RTI Act: A Critical Assessment",

Indian Journal cif Public Administration, 55: 3 (july-Sept.,2009), pp. 434-54.

Palanithurai, G., "Problems and Scope in Handling Right toInformation from Grassroots Perspective", Indian Journal

cif Public Administration, 55: 3 (july-Sept., 2009), pp. 481-503.

Raj, Triranjan and Sanjeev Kumar Sharma, "Right toInformation Act 2005: A Critique with Governance andAdministrative Reforms Perspective", Indian Journal cifPublic Administration, 55: 3 (july-Sept., 2009), pp. 481-

128


503.Saxena,P., "Public Authority and the RTI, Economic and

Political Weekly, 44: 16 (April. 2009), pp. 13-16.Shamshad, A., "Right to Information: Issues of Administrative

Efficiency, Public Accountability and Good Governance,Indian Journal if Public Administration, 55: 3 (july -Sept.,2009), pp. 562-576.

ReportsRight to Iriformation Act, 2005 (Government of India, Delhi,

2005).Right to InJormation: Master Key to Good Governance (First

report, Second Administrative Reforms Commission(ARC), Government of India, June, 2006).

Roy, Aruna, and • [ikhil Dey and Suchi Pande, The Right to

Iriformation Act 2005: A Social Development Perspective ( ewDelhi: Oxford University Press, 2008.

United Nations Programme. Governance Jor Sustainable

Development (New York: UNDP, 1997).

Web sitehttp://www.supremecourtofindia.nic.in/new_links/rti.htm.www. transparency. orgwww.cicigov.inwww.indiartiblogspot.org

129

Right to Information in India

Documents

Transcript of Right to Information in India