8 the rti act - a seven year retrospect

7/28/2019 8 the RTI Act - A Seven Year Retrospect

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The RTI Act, 2005

A Seven-Year Retrospect



The RTI Act – A Seven-Year Retrospect

“A popular government without popular information or the means of acquiring it, isbut a prologue to a farce, or a tragedy, or perhaps both,” said James Madison, an American political theorist and its fourth President. If this quote is put in perspective,

then until 2005, India should have been considered as being on the peril of suchfarce. Prior to 2005, neither was there any provision mandating the disclosure of allpublic information, nor was there any means to access such information.

The Right to Information Act, 2005 (RTI Act/ Act)was the citizens’ answer to the norm of secrecyand opaqueness in

governmentalproceedings that wasonce the order of the day.

The free flow of information in this countryhas been halted bylegislations like theOfficial Secrets Act, 1923,parliamentary privileges,the culture of arrogance

and complacency that has come to be identified with the Indian bureaucracy andgeneral lack of awareness among citizens. The RTI Act, thus, aimed to concentratepower in the hands of the citizens who may demand, even without giving a reason,any information which they think will help them exercise their rights more effectivelyand take an informed decision. The Preamble of the Act, which states that it is an Act

“to provide for setting out the practical regime of right to information for citizens” isalso evidence as to for whom the Act was introduced – the citizens.

It is the pro-active citizenry, with the help of the “weapon” called RTI, who have beenat the helm of disclosures of several scams involving MPs and civil servants. If notfor that one person who filed an RTI application regarding allotment of flats at thenow infamous Adarsh building in Colaba, we would have never known the extent towhich environmental norms were flouted and quid pro quo existed betweenpoliticians and builders to allot homes in a building meant to house Kargil widows.

It is important to trace the journey of the Act in order to understand how governancein India has undergone changes from functioning in a closed and secretive manner to now being under the public glare.

Recognition of the 'Right to know" The Supreme Court has interpreted Article 19(1)(a) and Article 21 of theConstitution, which enforce freedom of speech and expression and the right to lifeand liberty respectively, as including the ‘right to know’. If the public does not haveaccess to information about the functioning of the government and other publicinstitutions, the above rights become merely ornamental, with no real power attached



to it. In other words, the right to speech cannot be exercised in the absence of theright to know.

In State of UP vs. Raj Narain, the Supreme Court held that, “In a government of responsibility like ours, where all agents of the public must be responsible for their conduct, there can be 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 publicfunctionaries….to cover with veil of secrecy the common routine business is not in

the interest of public.”

Thus, it is clear that the judiciary of the country recognized the citizen’s right toinformation a long time ago.

The RTI Act Interestingly, even before 2005, several states in India had come up with their ownRTI legislations. Tamil Nadu was the first state in India to enact an access law – theTamil Nadu Right to Information Act, 1997. At the Central level, the first attempt toenact a law was made in 2002 when the Freedom of Information Bill was introduced

in the Parliament. The Bill was based on a draft prepared by the Press Council of India and National Campaign for People’s Right to Information. The Bill was passedin 2002 and also received the President’s assent, but could not come in to force dueto a want of notification from the central government.

It was the 2002 draft to which more than hundred amendments were made before itwas passed as the Right to Information Act in 2005, coming into force from 12October, 2005.

Section 3 of the Act declares that all citizens have the right to information. Section2(h) contains the definition of ‘public authority’ from whom information can be soughtunder the Act. The Act makes it obligatory for the public authorities to maintain and

publish all their records. The RTI Act states that public authorities shall make knownthe particulars of facilities available to citizens for obtaining information and thenames, designations and other particulars of the Public Information Officers.

Another instance wherethe Act empowers thecitizens is Section 6(2)which provides that anapplicant need not giveany reason for requestingthe information or provideany personal details other

than what is necessary tocontact him. One of theobvious rationales behindthis section is that theidentity of the personseeking information mustbe withheld in order to

protect him from any possible threats from the person about whom information issought.



Under Section 7 of the Act, within 30 days of the receipt of the request, either theinformation has to be provided on payment of fee or the request rejected and thereasons have to be mentioned. If the information sought concerns the life or liberty of a person, the same has to be provided within 48 hours. Even though the Act hasbeen lauded for the impact it has had on taking on the corrupt practices of thegovernment, where it has ably struck the right chord is in enabling the common manto overcome problems he may face due to a particular official act. .

Success stories There are innumerable inspiring stories about the RTI Act, reinforcing the belief thatpower in a democracy is concentrated in the hands of the people. For instance, in2006 a 70-year old rickshawpuller from Bihar filed an RTI application with the help of a local NGO. He wanted information connected to his application under the Indira Awas Yojana (a national housing scheme). The block development officer, onreceiving his application, handed him a cheque of Rs. 15000, his first instalmentunder the Indira Awas Yojana. In 2007, an under trial in Gujarat had filed anapplication under the RTI Act to be allowed to inspect files relating to vigilanceenquiries against him in a financial misappropriation case. The said files were not

presented by the bank where he was an employee to the Gujarat CID Crime Branch.

There are many such instances, where the RTI has been used by the citizensespecially when the authorities try to withhold information. In times where the lawand order situation in the country has been delicate, the citizens have used the RTIto make sure that the authorities are not overstepping their mandate hiding behindthe shield of the situation. For instance, the power of people was at display whenthey demanded information about the public prosecutors (who had amassed assetsdisproportionate to their income) in the Gujarat Godhra riots case. Similarly, the Acthas also been used during the conflict in the north-east and also Maoist affectedareas. The RTI Act has removed the need for a common man to approach an NGOor any other group to represent him by empowering him to approach the concerned

authorities in his individual capacity.

Furthermore, even the judiciaryhas liberally interpreted theprovisions of the Act, therebymaking the public authoritiesmore accountable. For instance,in Shyam Yadav vs. Departmentof Personnel. Training, theCentral Information Commissionheld that property statementsfiled by civil servants are not

confidential and information canbe disclosed after taking theviews of concerned officials as

per the provisions of the RTI Act.

The drawbacks As much as the Act has empowered the citizen and given them a “weapon” to keepthe public officers in check, not everything about it is foolproof. The Act has flaws –some of them in its implementation, and some in its interpretations. One of the latestblows to the Act has come in the form of a Supreme Court judgment in the



case Namita Sharma vs. Union of India. In this case, the constitutional validity of provisions dealing with the eligibility criteria for Information Commissioners at boththe Central and State level, was challenged. The Act provides that members of theState and Central Information Commission should be persons of eminence in publiclife with wide knowledge and experience in law, science and technology, socialservice, management, journalism, mass media or administration and governance. Itwas the contention of the petitioner that the Information Commission performs dutiesof judicial and quasi-judicial nature; however, the qualifications prescribed for the

same are vague, general and ultra vires the Constitution.

The Supreme Court upheld the validity of the sections but ruled that the InformationCommissions are “quasi-judicial authorities” or “tribunals” performing judicialfunctions and that they will have to work in a bench of two members, one judicialmember and the other a qualified person from a specific field. The judicial memberswill be appointed in consultation with the Chief Justice of India and Chief Justices of the High Courts of the respective States, as the case may be. About theconsequence of such a move, Shailesh Gandhi, former Central InformationCommissioner, opined that, “Effectively the disposal of pending cases will drop toabout 50% of the current disposals. This will lead to Commissions deciding cases

after five years or more in the next few years.” Also, some activists opine that theinclusion of a judicial member will deprive the Act of the personal touch that it couldboast of, since information officers do not come with aura that surrounds a judicialperson. At present, a review petition against this judgment has been filed by theUnion government and is pending before the Supreme Court.

There are also somespecific problems with theimplementation of Acts incertain states. For instance, Chattisgarh hasincreased the fee for an

RTI application to Rs. 500,placing it beyond the reachfor a lot of people. This isdespite the fact that the Actstipulates a nominal fee.

Yet another bone of contention with respect to

the Act has been the (non) application of the Act to public-private-partnership (PPP)projects, which rule the roost as far as infrastructure projects in the country areconcerned. As per section 2(h) of the RTI Act, in case of non-governmentalorganisations, only those that are “financed, directly or indirectly, by funds provided

by the government” fall under the purview of the RTI Act. The Central InformationCommission has made repeated pleas to the government to include PPP projectsunder the purview of RTI Act as public money and interest are involved in suchprojects. However, Prime Minister Manmohan Singh, at the annual convention of information commissioners, said that a blanket extension of the RTI Act to such PPPprojects may discourage private enterprises to enter into partnerships with the publicsector. On the other hand, a blanket exclusion may harm the cause of accountabilityof public officials, thus not taking a clear stand on the same. However, RTI activistshave criticised this statement, arguing that since public interest is at stake ininfrastructure projects, these projects should be under the purview of the RTI Act.



Attacks against RTI activists, some of them even fatal, have also been a major deterrent in the RTI movement, a situation compounded by fact that there are noexpress provisions in law for the protection of applicants. For instance, activist AmitJethwa, who had filed several RTI applications and had named an MP whileexposing illegal mining in the Gir forest, was gunned down outside the AhmedabadHigh Court in July 2010.

There is hope though. The Whistleblowers Protection Bill is closely connected withthe success of the RTI Act, considering the increasing attacks on RTI Activists whohave dared to register complaints against corrupt politicians, and wilful misuse of power by them. The legislations to protect whistleblowers, when enacted, shallprovide safeguards to an RTI applicant.

The challenges

The general awareness amongst people about the RTI Act and how it can be usedfor their benefit is still low. Moreover, there is a lack of sincerity on the part of government officials in disclosing information, who often threaten the applicant or

refuse to provide information. Additionally, the Information Commissioners have timeand again cited the lack of man power required to comply with all the provisions of the Act.

Recently, the Union Cabinet was contemplating amendments to the RTI Act, whichwere subsequently withdrawn after pressure from activists. The amendments, if cleared, would have restricted the disclosure of file notings in governmentdepartments under the RTI Act only to the ones related to social and developmentalissues. Also, the selection process for appointments made to public offices wouldhave been concealed from the public. However, the very fact the such anamendment was even considered by the government and moreover, the SupremeCourt’s judgment in Namita Sharma’s case has set the alarm bells ringing as far as

the future of the RTI Act is concerned.

Conclusion The RTI Act has been lauded bydemocracy advocates all over theworld, since it is at par (or evenbetter) than similar laws enactedin countries in the West. For instance, in the US and UK, therespective information disclosureacts require the applicant to

disclose his personal details,whereas in India, no such details are required. The RTI Act is one legislation that isindeed the pride of Indian democracy.

The RTI Act, as it stands today, is a strong tool to uphold the spirit of democracy.The need of the hour is that the RTI Act should be implemented to ensure that theobjects of the RTI Act are fulfilled. Any attempt to dilute the provisions of the RTI Actwill only quell its’ success.

8 the rti act - a seven year retrospect

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