Critical evaluation of Right to information Act, 2005.ß
Twenty first century is an era of
globalization; it means free trade, commerce and free flow of information. A
revolutionary invention in the science and technology has brought information
at the doors of people across the globe. Electronic and non-electronic print
media by making use of technology has become vibrant. Bill Gate’s small,
efficient and cost effective computer and Google’s search engine of website has
made the availability of information at the fingertip of every person. Julian
Assange, Editor-in-Chief of Wikileaks, who uploaded the most guarded classified
secretive documents thousands together of Pangton’s of USA in the cable
internet has stunned the entire world and proved the information, is vital and
most valuable for the just society.[1]Doctrine
of Secrecy of Information has limited place in the 21st century’s
open society. Arab World is marching towards democracy after witnessing
uprising waves of protestation against their rulers. Democracy rests on good
governance found on transparency, openness and accountability. Former U.S
President Abraham Lincoln in his Gettysburg Address on Thursday 19 1863, which
is most well known speech in USA history after civil war, said democracy means
“government of the people by the people for the people.”[2]
Speaking on the importance of information in the democratic form of government,
the father of the American Constitution and former US President, James Madison said
“Knowledge will forever govern
ignorance, and people who mean to be their own governors, must arm themselves
with the power knowledge gives. A popular government without popular
information or the means of acquiring it is but a prologue to a farce or a
tragedy or perhaps both.”[3]
Democracy and non-transparency of
Government cannot co-exist. Functions of Government are to be hidden from
public gaze, it would certainly tend to encourage corruption, oppression and
even misuse or abuse of the authority.[4]
Jeremy Bentham said, “Secrecy, being an instrument of conspiracy, ought never
to be the system of a regular government.”[5] Right
to Information is extension form of Fundamental Right of Freedom of Expression
and Speech. It is difficult to define human rights because it depends upon the
cultural background, legal system, ideology and economic, social and political
conditions of different States. Justice Mathew in his vivid constitutional and
juristic mind in case of Keshvananda
Bharathi v. State of Kerala,[6]
said, “Fundamental Rights themselves have no fixed contents, most of them are
empty vessels into which each generation must pour its contents in the light of
its experience.” There is an exciting global trend towards recognition of the
right to information by States, inter-governmental organizations, civil society
and the people. On December 1948, the General Assembly adopted “Universal
Declaration of Human Rights of which Article 19 refers to right to information.”[7]The
General Assembly on December 16, 1966 adopted the International Covenants on
Civil and Political Rights of which Article 19 talks about right to information[8]. Articles 13 of American Convention on Human
Rights acknowledge the right to information. Article 10 of European Convention
on Human Rights guarantees freedom of expression and information.
Indian Constitution.
There is no Article in the Indian
Constitution that explicitly mentioned the right to information. Nevertheless,
various Articles of the Constitution make inference that the right to
information is implicit. Article 19[1] [a] and 21 provides room for the
accommodation of right to information. Article 19[1] [a] says that all citizen
of India shall have the
right to freedom of speech and expression. Right to freedom of speech is
nothing but right to information that is basic amenity of civilized society,
which has four board special purposes to serve.[9]
One, it helps an individual to attain self-fulfillment. Second, it assists in
the discovery of truth. Third, it strengthens the capacity of an individual in
participating in decision-making. Fourth, it provides a stability and social
change. The march of law towards securing freedom of information explicitly
under Article 19[1][a] began with case of S.P.
Gupta and others v. President of India and others.[10]Justice
Bhagawati observed that “The concept of an open government is the direct
emanation form right to know which is seems to be implicit in the right of free
speech and expression guaranteed under the Article 19[1][a]. Therefore,
disclosure of information in regard to the functioning government must be the
rule and secrecy an exception justified only where the strictest requirement of
public interest demands.”[11]
In historical case, Union of India v Association of Democratic Reforms, the
Supreme Court held that voter is entitled to know the background of election
candidate, therefore freedom of speech and expression includes right to impart
and receive information. Further, the court said, “One-sided information,
disinformation, misinformation, and non-information all equally create an
uniformed citizenry which makes the democracy a farce.[12]
Right to Information
Act, 2005.
The Parliament
passed the Freedom of Information Act, 2002 that was weak law but RTI Act 2005,
which came into effect on 12th Oct 2005, replaced it. Indian democracy has
witnessed crises of governance at all levels of decision making as some key
components of democracy viz accountability and transparency in governance have
not been given adequate attention. Internal accountability mechanisms like CBI
& CVC have failed to function effectively because they lack the basic power
and autonomous, while the external accountability to the people rarely
blossoms. The Right to Information Act has provided an instrument in the hands
of the citizens with which it can fill the vacuum of accountability by
utilization of the Act in large scale.
Prime Minister Dr Man Mohan
during the National Convention on Right to Information of 2006 in New Delhi said, “RTI is an
important milestone in our quest for building an enlightened and at the same
time prosperous society.”[13]
Jeremy Bentham said, “Secrecy being an instrument of conspiracy ought never to
be the system of regular government.”[14]
RTI in last six years has established transparency discourse irrevocably
placing transparency in the middle of the debate on good governance. RTI Activist
Arun Roy said idea of RTI was not merely fighting corruption but arbitrary use
of power, mis- use of power and seeking justice.[15]
Justice Ravindran and Patnik while allowing disclosure of answer sheets of
student in public examination held that “The right to information is cherished
right, information and the right to information is intended to be formidable
tools in the hands of responsible citizens to fight corruption and to bring
about transparency and accountability.[16]
Popularity of the RTI Act can be
measured by the mere fact that only 249 appeals and complaints pending before
the CIC in the month of April 2006, now the number has gone up to 2700 in the
month of August 2010.[17]
Ex Minster of Central Government Subramanya Swami who acquired some documents
under RTI and filed PIL in SC on 2G scandal which led to arrest of former
telecommunication Minster Raja who is now in jail.[18]
Ex Chief Minister of Maharashtra Ashok Chavan lost his Chief Minster ship and
named as accused in the Adrasha Building Scandal in Mumbai that was exposed by
RTI activist Santosh Dundikar.[19]
Ten RTI activists were killed in the last one-year itself indicates its sheer
impact on the Indian political spectrum.[20]
Provisions of RIA 2005.
The section 2[f] of Act has
defined information in wider sense which means, any materials in any form
including records documents memos, emails, opinions, advices, press realizes,
circular, orders, logbook, contracts, reports, samples, models, data material
held in any electronic from and information related to private body which held
by public authority under any law time being in force. Only public authority
has the statutory duty to dissemate Information. Section 2[h] defines Public
Authority means any authority constituted under Constitution, by Central or
State government through the legislation or notification. Any other authority
owned, controlled and substantially financed by government including NGO. Right
to Information means, inspection of works, documents, results, taking notes
extracts or certified copies of documents, taking certified sample of material
and obtaining the information in the form of CD. Section 3 authorizes the citizen
of India to seek the
information.
The process of providing information
under RTI Act is simple, easy, time bound and cheap which makes the legislation
successful, powerful and effective. Section 6 empowers the person to make
simple application for information or through electronic means without disclosing
the reason for obtaining such information.[21] Where
the application of information is submitted by mistake to the authority that
does not have the necessary information, under such circumstances, the person
need not submit fresh application, the same application will be forwarded to
the authority which is having information and the same is intimated to the
applicant. Thus, the task of applicant is made very easy.[22]
Section 5 obligates the authority to appoint Public Information Officer [PIO]
to whom the application can be submitted. PIO who seeks the assistance of other
officer for getting information is also called as PIO. The information has to
be provided to the applicant as expeditiously as possible but not latter than
30 days from the date of receipt of application. The information related to the
third party shall be reveled within 40 days and related to life, and liberty of
person shall be disclosed within 48 hours.[23] On
the other hand, the authority forms opinion that sought information cannot be reveled;
they may reject the application with reasons. The PIO who neither provides
information nor reject the application within 30 days is deemed to be refused
to furnish information.[24] The
person whose application is rejected or information refused by the PIO may
appeal to the appellate authority, which is constituted under the Act to hear
the appeal. The person even aggrieved by the decision of appellate authority
can make second appeal to the Central or State Commission as the case may be.[25]The
information would be provided on payment of prescribed fees that is not
substantial. However, the cost of providing information becomes expensive than
prescribed amount, the same would be intimated to applicant and information
will be provided on payment of such fees. Nevertheless, the cost should not be
unreasonable. Section 4 of the Act is worthy to be lauded because it obligates
the Public Authority on suo motto
bases to furnish certain vital information about the organization to the people
in local language at regular intervals with update. Voluntarily disclosure of
information makes the authority transparent and accessibility of information
becomes easy, which in turn produces good rapport between authority and people.
Further, that would reduce the burden of authority because people would not
file application for such information. Section 8 is most important provision of
the RTI Act that exempt certain information from the disclosure, which are
about 10 matters. Nevertheless, the exemption clause is not absolute; the
authority has discretionary power to disclose the exempted information when
public interest outweighs the harm to individual protected interest. Further,
Sub section 3 of 8 says that exempted matter related to first categories shall
be revealed after 20 years from the occurrence of events. Most laudable section
of RTI Act is 8 [1] which says that “Provided that the information, which
cannot be denied to the Parliament or a State Legislature shall not be denied
to any person.” This section provides the privileges of Parliamentarian to the
commoners that mean whatever information cannot be denied to the Member of the
Parliament same information cannot be denied to the applicant. All the
protective norms against the exemption clause make inferences that section 8
should lead for doctrine of maximum disclosure and least secrecy of
information. Section 9 of the Act prohibits disclosure of information which
violates copy right of other person. The RTI Act has provided sufficient
protection to those persons who provide vital information to the enforcing
agencies. Any information related such person, which is classified as
“confidential”, would not be reveled unless that party consented for such
disclosure. The RTI Act has kept political interference at bay by making the
transparent process of appointment of Commissioner to the Central Information
Commission [CIC] and State Information Commission [SIC]. Central Government
would constitute Central Information Commission consisting Chief Information
Commissioner [CIC] and other Central Information Commissioner not exceeding ten.[26] The
Chief Information Commissioner and ten other Information Commissioners are appointed
by the President on the recommendation of the selection of committee consisting
of Prime Minster, Leader of the Opposition Party in the Lokshaba and Cabinet
Minster nominated by the Prime Minster. The Act has provided sufficient
protection to the members from the interference from the executive. They hold
the office for 5 years and will be removed from the office by the President
only on the ground of misbehavior or incapacity after the due enquiry made by
the Supreme Court.[27]Section
15 empowers the State government to constitute the State Information
Commission. Its structure, procedure of appointment and removal of member’s
provisions are similar to the provisions of Central Information Commission.[28]
Where the person is aggrieved by
the refusal of information, incomplete, and wrongful information by the PIO and
appellate authority, can make complaint or appeal to the Central or State
Information Commission as the case may be. The Commission may provide the
following reliefs.[29]
i.
Providing access to information.
ii.
Ordering the appointment of PIO.
iii.
Publishing the information.
iv.
Awarding compensation to party.
v.
Imposing the penalty on the PIO.
During the investigation, where
Commission finds that PIO has refused information without cause, not furnished
within time specified or knowingly given incorrect, incomplete or misleading
information. Such PIO shall be fined Rs 250 per day until the information is
furnished but overall the fine shall not exceed Rs 25000.[30]
Further, the Commission may
recommend for disciplinary action against the erring PIO in accordance with
service rules.[31] Section
22 authorizes the PIO to furnish information notwithstanding any prohibition in
the Official Secret Act 1923 or any other law for the time being in force.
Repercussion of this section would be severe on the functioning of government
because RTI Act has overriding effect over other legislation that makes the Act
laudable. Whatever other legislation prohibits or restricts the disclosure of
information yet the information would be diseemation under RTI. That’s why the
RTI Act has held in high esteem and Globally appreciated. The Section 24
exempts organizations related to security and intelligence that are listed in
the second schedule from the coverage of the Act. There are 22 organizations in
the schedule including the recent controversial inclusion of CBI. Nevertheless,
the exemption clause is not absolute because they have to disclose the
information related to the corruption and abuse of human rights.[32]
RTI Act has expected to bring
revolutionary changes in the working culture of government from secrecy to
transparency course but Act has neither totally succeeded nor miserably failed.
Producing high reaps from the seeds of RTI Act in short duration of six years
would be expecting too much, it has to cover long distance to achieve its
desired result. In the last six years of its implementation, certain
deficiencies are noticed in the provisions of law and some practical hurdles
are cropped up.
Section 3 of the RTI Act empowers
only citizens to seek information and non-citizens are denied the same
privilege such discrimination is untenable. In US, even the non-citizens are
allowed to acquire the information. No
doubt, Right to Information is enumerated from the fundamental right of freedom
of speech and expression that is guaranteed to citizens of India . The classification between citizen and
non-citizen in respect of freedom of speech and expression is based on
intangible difference and having nexus with object of freedom of speech and
expression. Citizens of India are entitled to exercise the freedom of
speech and expression against their government because the government is, of
the people by the people and for the people of India .
We cannot say same thing in respect of non-citizen. Obliviously, the framers of
the Constitution have expressly denied the freedom of speech and expression to
non-citizen. However, Right to Information is means to end but not an end
itself. Non-citizens of India
are also entitled to have the protection of certain fundament rights under the
Constitution. Those are rights of accused under Article 20, life and liberty
under 21, preventive detention laws of 22, rights of religion under 25 and
right to seek justice from SC under Article 32. Naturally, non-citizens also
require sum information from the government to have the meaningful protection
of these rights. Therefore, denying the same right to non-citizen amounts to
arbitrary. Moreover, non-citizens are not be prevented from getting the
information under the Act. Section 6[2] of the RTI Act says citizen need not
furnish motive or reason for seeking the information and such information may
be passed to non-citizen which is not offence under the Act. Where the RTI Act
has allowed the non-citizen to acquire information indirectly, then there is no
justification of such direct prohibition apparently, which amounts contradictory.
Transparency in the appointment
of members of the Central Information Commission by the selection committee
consisting Prime Minster, nominated Cabinet Minster and Opposition Party Leader
in the Lokshabha is the hallmark of the legislation. The crucial question is
whether the selection of member should be the norm of majority or unanimous. If
the decision has to be taken by the majority then participation and
consultation of the Opposition Party Leader is mere formality because the Prime
Minster and his nominated Cabinet Minster are always on one side and Opposition
Party Leader voice would be never heard. This is what had happened in the case
of P.J. Thomas appointment as Central Vigilance Commissioner, which was struck
down by the Supreme Court as ultra virus.[33]
In that appointment, Prime Minster Man Mohan Sing and Home Minster Chidanmbram
had over ruled what in final analysis turned out to be valid object by the
third party member Susma Swaraj, the Leader of the Opposition.[34]
If at all due weightage is to be given to the Leader of the Opposition Leader
in the appointment of members then obviously decision should be on unanimous
rather than majority otherwise government has 2-1majority in the selection
committee of its choice.[35]
The Act should be amended to add the specific provision for the unanimous
decision for the appointment of members or selection committee should consist
Prime Minster, Opposition Party leader and Nominee of Chief Justice instead of
Cabinet Minster appointed by PM that would bring fairness in the process of
appointment of Commissioners.[36]
The people whole-heartedly
appreciated the RTA Act because it provides information within the specified period
but the same notion is not sustained at the stage of complaint and appeal under
section 18 and 19 of the Act respectively. It is mandatory for authority to
constitute the appellate authority to which the first appeal against the
decision of PIO lies that has no obligation to dispose of the appeal within
stipulated period that would the defeat the very purpose of law. The second
appeal may be filed before the CIC or SIC as the case may be but here also the
same lacuna is existed. Time- being, there may be crunch of financial resources
to establish more numbers of CIC and SIC at different places. Nevertheless, in
respect of first appeal, it is mandatory
to appoint the appellate authority in every public authority; moreover, appeals
would not be in huge numbers. Therefore, not sticking to the time schedule for
the deposal of first appeal is untenable. Ten member’s body of CIC would be
certainly disproportionate to the 1.2 billion population of India . Following table of appeals and complaints
pending before CIC suggest there is no rosy future for CIC unless numbers are
hiked.[37]
|
year
|
month
|
Opening Balance
|
Receipt
|
Disposal
|
Closing Balance
|
|
2006
|
April
|
486
|
249
|
97
|
638
|
|
2006
|
May
|
638
|
413
|
205
|
846
|
|
2011
|
June
|
18854
|
2665
|
2243
|
19276
|
|
2011
|
July
|
19276
|
2249
|
1954
|
19571
|
|
2011
|
August
|
19571
|
2700
|
2039
|
20232.
|
In Karnataka, Commissioner of
Information Dr Sajjan Rao said “we have 30000 pending cases of RTI; it would
take few months to dispose of.” [38]
The time has come to scale up the number of Commissioner and establishment of
more number of benches of Commission at different parts of the country.
RTI Act has constituted two
parallel independent authorities that which weakened than strengthens the Act.
Central and State government public authorities comes under the jurisdiction of
CIC and SIC respectively. Section 15 of RTI Act says that SIC is autonomous
body, which is not subjected to the any other authority under the Act. It means
that doctrine of stare decisis is not
applicable because SIC is not subordinate to the CIC which is not healthy sign
of law. SIC may interpret the provisions of RTI Act independently without
taking into consideration of CIC’s interpretations and even it may give
contrary decisions to the decisions of CIC. Under such circumstances, either
High Court under Article 226 or Supreme Court under Article 32 or 136 has to
resolve the confusion and controversy. All these problems would have been
sorted out by simple norm of making SIC subordinate to the CIC. SIC decision is
final and not subjected to the appeal to the CIC is rational otherwise it would
have amounted too many appeals but not making it subordinate to the CIC is not
viable in the interest of RTI Act itself. Establishment of single hierarchy of
quasi-judicial body under any law is always preferable for overall coherence
existence of authorities and the efficient function of law.
The RTI Act has had, and
continues to have a significant positive impact on democratic governance in India . This is because the common people have
owned the Act. The prime mover of the Act is the ordinary person. Therefore citizens
are not hesitating to exercise the powerful right of seeking information. It
provides vital information or means to fight against mafia or corruption in any
spectrum of the society. The persons who exposes mafia or scandals to society
would always face endanger to his life. RTI Activist Shehla Massod was shot
down in her car in front of her residence in broad day in Bhopal on 16 August 2011 because she was
instrumental in exposing Forest Mafia and High Corruption cases.[39]
Satish Shetty RTI activist who revealed the Mumbai-Poona Express highway land
swindle was assassinated in Poona
on Jan 13 2010. Another RTI activist Amit Jethwa who brought to the notice of
public regarding illegal mining in Gir reserve was killed in Gujarat
on July 20 2010.[40] In last
one-year, ten RTI activists were killed in various part of India .[41]
It is mandatory for every
applicant to reveal his identity and address in his application for information
otherwise application would be rejected. Naturally, the mafia or corrupt
elements would come to know easily who has exposed them to the society. Whistle blower means the person who
discloses the adverse conduct of the person to the public interest.[42]
The Law Commission of India observed, “The evil of corruption among public
servants and maladministration and the adverse effect on country would be
eradicated by means of right to information, then the protection of whistle
blowers must.”[43] U.S has
enacted the Whistle Blowers Protection Act, 1989 and UK Public Interest
Disclosure Act, 1998 that keeps the name of the whistle blowers in
confidential. They may seek information and make complaint under secrecy that
would encourage eradication of corruption. There is no such protection to the whistle
blowers under the RTI Act or general law, which is a serious deficiency in the
promotion of justice in the Indian legal system. National Advisory Council
member and RTI activist Arun Roy has strongly stressed that comprehensive
whistle blower’s protection law is needed. [44]
Such kind of Act would help in continuing the good result produced by RTI Act
in effective manner in the long run. The CIC is under pressure to do something
to curb the casualties of the RTI activist. The Central Information
Commissioner Shailesh Gandhi said CIC
has decided to disclose the nature of information sought by the RTI activist in
case RTI activist is fatally assaulted that would reveal the motive for murder
which gives clues to the identifies of the assailants which in turn would act
in deterrent against attackers.[45]
The Cabinet of Ministers of India has cleared the protection of whistle-blowers
bill on 13 December 2011, which is likely to be introduced any time in the
Parliament.
The CIC and SIC have power to
receive the complaint and appeal from the aggrieved persons against the
decisions of the PIO under section 18 and 19 of the RTI Act. The both CIC and SIC are empowered to give
divergent relief under section 19[8] of the Act including penalty according to
section 20. The authorities have the power to give relief and impose the
penalty but do not have the power execute its own decision. Goa
and Kerala SIC have pointed out that there is no provision for contempt
proceedings for non-compliance of the directions of SIC. If the fine is
defaulted, there is no provision to realize the penalty, and no provision to
enforce recommendation for disciplinary action under section 20[2] of the Act.[46]
Further, actions for the recover of fine or enforcement of decisions of the CIC
and SIC has to be initiated under other laws makes the RTI Act toothless and
non-deterrent. It is shocking that just about 20 percent of total penalties
imposed by the Commission are recovered.[47]
Public Authorities should not be allowed to take CIC and SIC as ‘paper-tiger.
The same defect, Consumer Protection Act 1986 was faced initially and consumer
who has decree in his favour is forced to file execution suit in civil court
for the enforcement of forums decisions. The proceedings of civil suit are
cumbersome that discouraged the consumer to make application under the Consumer
Protection Act. The fatal defect of CPA not having power to enforce its own
decision was cured by empowering the authorities under the section 27 of CPA to
impose the punishment for the contempt of its decisions.[48]
Without the sanction of criminal putative for its contempt of order, the RTI
Act would only be a paper tiger lacking teeth altogether. Therefore, the RTI
Act needs to be amended and power should be given to the authorities to punish
the persons for contempt of its own decisions.
Section 4[1]
[b] of the RTI Act says that public authority shall publish matter on suo motu bases at regular intervals with
update about information regarding 16 matters stated in the provision by
various means including internet, pamphlets, news in local papers and notice
display in the office to the people in their local language. Most of the public
authorities have never cared to publish these matters and even if published
they are not updated at regular intervals. This section is honored more in
breaches than compliance. PRIA is an international centre for learning and
promotion of participation and democratic government has conducted empirical
research on Right to Information in Eight States has reported that the status
of self-disclosures in various public authorities at district level is in very
poor shape, which results in pilling up application in the PIO offices.[49]
Section 4[1] [b] is the most important provision of RTI Act is grossly
disrespected by the authorities because of the simple fact that it is non-penal
which should have been deterrent. Experience and rationally suggests that
non-compliance of this rule should make the head of the organization liable to
fine every day until he publishes the matter.
Apart from
these deficiencies in the provisions of RTI Act, there are certain the
practical problems have surfaced during the last six years of its enforcement.
Implementation of RTI Act is very costly affair because it needs huge
infrastructures. The data’s and documents have to be properly maintained, mean
that is more appropriate would be computerizations, which requires abundant of
trained work force. The ground reality of storing documents and information in
government department is well below than the satisfactory level because
documents are damaged, destroyed, misplaced or sum time not available. The
persons who stores the documents and data’s are neither skilled nor having the
knowledge of computer technology. Successful implementation of RTI Act much depends
upon availability of the infrastructure of computer network and trained skill
workers, which requires huge budgetary support by the governments. The
following data’s of budgetary support by the various governments during the
year 2006-07 makes inferences that how much government is interested in
implementing the RTI in effective manner.[50]
|
States
|
|
M.P.
|
Kerala
|
H.P.
|
A.P.
|
Rajasthan.
|
|
|
|
Rs in laks
|
8.
|
97.
|
285.
|
59.
|
235.
|
25
|
75.
|
42.
|
The Indian legislators take more
keen interest in enacting legislation rather than implementation of law.
Implementation of law is more important than the enactment of law otherwise the
law would loses its sanctity and integrity and that is worst than not having
law. The financial support by the State governments is disheartening unless the
State governments substantially hike the budgetary support, the RTI Act would
not make much headway.
Another major
problem the person who wants to file application for information faces the
hilarious task of tracing and identifying the PIO. He wastes so much of times
by running form one pillar to another to trace who is PIO and where his table
and chair. The public authority should have taken adequate measures in
notifying and publishing the name of PIO but in fact, they do not do it. Next
hurdle for applicant is in whose name the fee of information has to be made.
Different authorities have named different dignitaries to whom the payment is
to be made. It would be better if State and Central government prescribes the
common name for the payment of fees.
Unless these two practical problems are sorted out effectively, it would
be impossible for illiterate person to seek information. There is equal responsibility on the shoulder
of citizens to co-operate for smooth functioning of RTI Act by asking specific
and precise information. Most of the time applicant seeks general information
that creates lot of confusion for the authority to determine the nature of
information to be supplied. On the other hand, the authority should also act
judicasiously by applying their mind to provide precise information instead of
supplying the bulk of documents mechanically.
Our Bureaucracy
still living in the era of secrecy and disclosure is exception that they have
inherited form the legacy of Colonial rule. Even the top bureaucracies are not
free form this axiomatic. The executive
must change their mindset and give up the resistant attitude in disclosing the
information. Goa SIC held that Governor Office is covered under the RTI Act but
the Governor instead of furnishing the information challenged unsuccessfully
before the Bombay High Court bench at Goa .
Further, they preferred the appeal before the Bombay High Court, which is
pending.[51] Same thing happened in case of Chief Justice
of India when the Justice Balkrishan was at the helm of affairs of the Supreme
Court of India. Central Information Commission, Single and division bench of
Delhi High Court have held that CJI office comes under the preview of RTI Act
but Supreme Court challenged the decision of High Court in its own court to
keep the SC out of RTI Act coverage. What ironic that SC could sue others in
his own court that too protect secrecy which it teaches others to follow the
doctrine of openness and transparency. When the CBI flooded with application
for information in sensitive cases the Home Minster excluded the CBI
organization form the converge of RTI by including it under section 24 of the RTI Act that
exempt certain organizations the
coverage of Act. The CIC severely criticized the move of Home Minster and said
that government appeared to be “claiming absolute secrecy for the CBI without
the sanction of the law”[52]
Section 24 of RTI Act exempt only organizations which are related to the
intelligence and security agencies from the coverage of Act. Central
Information Commissioner shri Shailesh Gandhi rightly said unlike Army, BSF,
IB, RAW, the CBI’s function are nature of investigation which are akin to the
police not related to gathering of intelligence or security.[53]
Therefore, its inclusion in section 24 is ultra
virus. All these events unfolds that Executives are not yet ready to accept
the change that disclosure is rule not secrecy. The Karnataka Right to
Information Federation has said RTI Act was enacted, however due to lack of initiative
and inadequate support from the administration, the full potential of the Act
was still to be realized.[54]
Still the RTI Act has to cover long distance to make the right to information
is real and meaningful empowerment of citizen.
RTI Act has
hardly six years child. Prime Minister Man Mohan Singh while addressing 6th
Convention of information in New Delhi has called critical look at the RTI Act
to ensure that it does not adversely affect the deliberative process of the
governmental and discourage honest officials from articulating their view’s.[55]
There is criticism that executives are under the apprehension that their note
which they usually express on document has rapidly becoming bone of contention
in major cases has affected the functions of government and honest officers.
There was attempt to amend the RTI Act to exclude note form the definition of
information but that move was severely criticized across the Nation, wisdom
prevailed over the Prime Minster, and his Cabinet Ministers who decided not to
amend the RTI Act.[56]
Honest and upright officers need not worry about the RTI Act because there is
nothing to hide, those officers who give illegal or malfide note would worry
because there is something to hide. RTI
Act has affected the efficient function of government and honest officers are
harassed is unfound and false propaganda made by the vested stakeholders who
are more interested to hide the information. Most of the time the Central and
State government used appoint the retried bureaucrats as the members of the
information commissions which is not good practice, they are unlikely to
maintain neutrality because they were
part and parcel of government. In 20 State Information Commission, 27
commissioners out of 52 are from the bureaucrats, who are overrepresented even
though there is ample, scope for the appointment form, other discipline.
The RTI
activist and NGO have never seriously thought of utilizing the potentiality of
Consumer Protection Act 1986 in large scale to get information from the public
authorities which is more speedier, cheaper and effective than the RTI Act. The
person who makes the application for information under RTI Act is certainly
consumer because he pays the consideration in the form of fees. The
authorities, who have failed or refused to furnish the information within the
stipulated time amounts the deficiency of service, therefore, the aggrieved person
can make complaint or appeal under the RTI Act or file application before
District Consumer forum under CPA. Even he can utilize both remedies
simultaneously because the CPA is derogative law not destructive. Unlike SIC, District
Consumer forum is constituted at every District so it is easily accessible and
it can order for disclosure of information in specified time. Other added
advantages are, the forum may award the compensation to the applicant, and it
has power of contempt to imprison or fine any person who disrespects its order
makes most effective. The relief by CIC or SIC may take months or years
together, it is costly because it is far away form the applicant, it has no
power to award compensation, and it has no power of contempt to enforce its own
order. These entire factors emphatically crystal clearly makes that the remedies
under CPA are far better and effective than the RTI Act but peoples have not
accustomed to utilize it.
Conculsion.
The Right to Information is right
linked with inherent dignity of all human beings. The Right to Information is the
oxygen of democracy. Richard Nixon
former President of USA said “When information popularly belongs to public
systematic withhold by those in power, the people soon become ignorant of their
own affairs, distrustful of those who manage them, and eventually-incapable of
determining their own destinies.”[57] Harsh
Mandrs, an RTI activist described the nature and value of information as
follows,
“…Government information is national resources, neither the particular
government of the day nor public officials create information for their own
benefit. This information is generated for the purpose related to the
legitimate discharge of their duties of office and for the service of the
public for whose benefit the institutions of government exist, and who
ultimately fund the institutions of government and the salaries of officials.
It follows government and officials are trustee of the information for the
people.”[58]
Right to Information should be
considered as right to survival: Food security, Shelter, Environmental matters,
Employment, Land acquisitions, Establishments of SEZ and Poverty are all bound
up with the right to information. In the light of decentralized power and
democracy in the form of Gram Panchayat, Taluk Panchayat and Zilla Panchayat,
right to information has significantly changed the attitude and behavior of the
officials and become more responsive towards mass and uneducated people that
could not have done by our legal system in the last 50 years. Media and Press
acts as watchdog of democracy. Media could discharge its responsibility at
optimum level, if they are assured free access to information for which in the
past they used to run from pillar to another and used unethical means to get
it. Right-To-Information Act 2005 has been successful in much more ways than
was aimed to achieve. RTI Act is a milestone in the democracy of India as it has tried to build a new
institutional mechanism for ensuring transparency and accountability in the
functioning of public institutions. RTI Act has set in motion a paradigm shift
from the yesteryear governance which was under the veil of the Official Secret
Act 1923 to open and transparent governance. Right to Information is means to
an end but not an end in itself.
ß
S.G.Goudappanavar, LL.M. Associate Professor, S.C.Nandimath Law
College
[1] Assange,
“WikiLeaks is the method we use towards our goals of a more just society”, The
Hindu, Hubli [Ed.], April 13 2011. p.11.
[2] www.en.wikipedia.org./wili/Gettsburg.Adress.
Accessed on 21 October 2011.
[3] www.brainyquote.com/quotes/authors/j/James_Madison.html.
Accessed on 21 October 2011.
[4]
Justice Salkia, A.H. Gauhati High Court, “The Right to Information Act, 2005—An
Instrument to Strengthen Democracy.”, AIR Journal, [2007].p.115.
[5] www.fipa.bc.ca/libray/public_Education/quotes,htm.
Accessed on 5 September 2011.
[6]
[1973] 4 SCC 223.
[7]
See, General Assembly Resloution 217 [iii] of Dec 10, 1948.
[8]
See, General Assembly Resloution 2200 [XXI] of Dec 16, 1966.
[9] Indian
Express Newspaper[Bombay ]private
Ltd v. Union of India, [1985] 1 SCC 641.
[10] AIR
1982 SC 149.
[11] AIR
1982 SC 149 at 158.
[12] AIR
2002 SC 2114.
[13] Dr,
Browalia,J.N. The Right to
information Act. [2nd
Ed.], New Dehli: Universal law publishing Co.Pvt.Ltd.[2010].p.25
[14] www.fiba.bc.ca/library/public_Education/quotes.htm.
Accessed on 5 Septmber 2011.
[15]
“Comperhensive Whistle blowers protection law needed:Roy ” The Hindu, Hubli[Ed.], 16 Oct 2011.p.3.
[16] “RTI a
formidable tool to fight Corruption: Suprme
Court ”, The Hindu, Hubli [Ed.], 14 Agust 2011.p.6.
[17] www.cic.gov.in.com. Accessed on 10
December 2011.
[18] www.janataparty.org. Accessed on 2 Dec
2011.
[19] www.ritinda.org. Accessed on 4 Sep 2011.
[20] www.hindustantimes.com/strorypage.
Accessed on 4 Sep 2011.
[21]
Sec,6[2] of RTI.
[22]
See,6[3] The Right to Information Act, 2005.
[23] Sec
7[1], Ibid.
[24] Section
7[2], Ibid.
[25] Sec 19, Ibid.
[26] Sec 12,
Ibid.
[27] Sec 13&14, Ibid.
[28] Sec
16&17, Ibid.
[29] Sec18, Ibid.
[30] Sec 20, Ibid.
[31] Ibid.
[32] Sec
24[1], Ibid.
[33]
“Supreme Court strikes down Thomas appointment as CVC”, The Hindu, Hubli [Ed.],
4 March 2011.p.1.
[34] “A
serve indictment” Editorial, The Hindu, Hubli [Ed.], 4 March 2011.p.10.
[35] “Alram
bells rings for RTI”, The Hindu, Hubli [ED.], 18 Oct 2012.p.9.
[36] Alram
bells rings for RTI”, The Hindu, Hubli [ED.], 18 Oct 2012.p.9.
[37] www.cic.gov.in.com.
Accessed on 10 December 2011
[38]
“RTI:Division Benches Proposed”, The Hindu, Hubli[Ed.], 20 July 2011.p.3.
[39] www.ibnlive.in.com/news/who-killed-rti-activist...masood/176421-3html.
Accessed on 1 Dec 2011.
[40]
www.hindustantimes,com/storypage. Accessed on 4 September 2011.
[41] Vidya
Subrahmaniam, “RTI information sought by whistle-blowers, since killed, to be
made Public”, The Hindu, Hubli [Ed.], 5 October 2011.p.14.
[42] The Law
Commission of India’s 179th Report on “The Public interest
disclosure and protection of informers.”p.5.
[43] The Law
Commission of India’s 179th Report on “The Public interest
disclosure and protection of informers.”p.5.
[44]
“Comperhensive Whistle blowers protection law needed:Roy ” The Hindu, Hubli[Ed.], 16 Oct 2011.p.3.
[45] Vidya
Subrahmaniam, “RTI information sought by whistle-blowers, since killed, to be
made Public”, The Hindu, Hubli [Ed.], 5 October 2011.p.14.
[46] “Tracking
Rights to information in Eight States”, www.
pria.org/project/governance.projects. Accessed on 14 December 2011.
[47] Subhash
Agarawal, “Achivements of RTI Act”, www.cic.gov,in. Accessed on 1 Dec 2011.
[48] The
word ‘complaint’ is added to section 27
by 1993 amendment. Further, it was made more stringent in 2002 amendment of
CPA.
[49]
Tracking Rights to information in Eight States”, www.
pria.org/project/governance.projects. Accessed on 14 December 2011.
[50]
Tracking Rights to information in Eight States”, www.
pria.org/project/governance.projects. Accessed on 14 December 2011.
[51] “Goa
Governor files appeal against RTI judgment”, The Hindu, Hubli [Ed.], 26
November 2011.p.3.
[52] “CIC
slams government for excluding CBI form RTI Act”, The Hindu, Hubli [Ed.], 3
July 2011.p.8.
[53] “CIC
slams government for excluding CBI form RTI Act”, The Hindu, Hubli[Ed.], 3 July
2011.p.8.
[54] “Take
sutiable action to implement RTI Act in letter and spirit:Federation” The
Hindu, Hubli [Ed.], 14 October 2011.p.11.
[55] “Need
for critical look at RTI Act, says Manmohan”, The Hindu, Hubli [Ed.], 15
October 2011.p.14.
[56]
“Cabinet withdraws RTI amendments”, The Hindu, Hubli [Ed.], 2 November
2012.p.1.
[57] www.fiba.bc.ca/library/public/_Education/quotes.htm.
Accessed on 15 December 2011.
[58] Mander
and Joshi, “The Right to information movements in India —People’s
Power for the Controll of Corruption”, CHRI, New Delhi , 1998.
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