final draft - rti

8/6/2019 Final Draft - RTI

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RIGHT TO INFORMATION

Subject: Constitution Law- II

Submitted to Ms Bharti

Submitted by Jasween Singh Gujral

Roll No 2008/27

3rd Year 6th

Sem

B.A.LL.B (Hons)


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National Law School University, Delhi


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ii

Table of contents

Page no.

List of abbreviations iii

List of Statutes iv

Chapter-I 1-2

Introduction

Chapter-II 3-4

Right to Information in India

Chapter-III 5-11

Definitions

Chapter IV 12

RTI and Constitutional Functionaries

Chapter-V 12-13

Conclusion and Criticism

Bibliography v-vi


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iii

List of Abbreviations

AC Appellate Court

AIR All India Reports

NGO Non Governmental organis

p

pp

PCA Prevention of Corruption Act

PIO Public Information Officer

PUCL Peoples Union for Civil Liberties

RTI Right to Information

s section

ss sections

TI Transparency International

SCC Supreme Court Cases

UOI Union of India

UK United Kingdom

USA United States of America

v Versus


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iv

List of Statutes

Freedom of Information Act, 2002

Prevention of Corruption Act, 1988

Right to Information Act, 2005

Official Secrets Act, 1923


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v

List of Cases

Bennett Coleman v. Union of India

State of UP v. Raj Narain

S.P. Gupta v. Union of India

Secy., Ministry of I&B, Govt. of India v. Cricket Assn. of Bengal

Peoples Union for Civil Liberties v. Union of India


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1

CHAPTER 1

INTRODUCTION

Access to information and openness are of crucial importance in ensuring the

accountability of the government. Although efficiency in the private sector may be judged in

solely economic terms, it cannot be so simply evaluated in the public sphere of Government.

The right to information is necessary to promote a culture of accountability and to expose

corruption and malpractice.

The Right to Information Act 2005 provides effective access to information for

citizens of India, which is under the control of the public authorities. It promotes transparency

and accountability in the working of every public authority. It extends to the whole of India

except the state of Jammu and Kashmir. In order to ensure greater and more effective access

to information, it was decided to repeal the Freedom of Information Act, 2002 and enact

another law for providing an effective framework. To achieve this object, the Right to

Information Bill was introduced in the Parliament and was passed by the Lok Sabha on 11th

May, 2005 and by the Rajya Sabha on 12th May, 2005 and it received the assent on 15th

June, 2005

Accessibility of information and release of facts pertaining to finance, proceedings

and decisions of all the social actors whose activities have an impact on the public, is theguarantee that such actors will be accountable and will fulfil their mandates. Accountability

targets mismanagement, abuse of discretion, corruption and other malpractices that

administrative law seeks to check as well. We have not till recently had any right to

information legislation such as exists in many countries. As far as administrative law is

concerned, the most prominent reasons for an RTI Act are that firstly, and most

fundamentally access to information concerning governmental decision making is central to

the idea of a democratic society1. Secondly, individual citizens should be able to know the

information that is held about them to ensure its correctness and the uses to which it is put.

Thirdly, public disclosure of information will improve a public authoritys decision making

1Anabil Bhattacharya, The Right To Information Act, 2005- new responsibilities of every public authority,

(2006) 26, Insurance Times 41


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because it will be easier to reveal the impact of interest groups on the public authority2. The

effectiveness of such legislation depends on the number of exceptions contained in the Act,

the manner in which it is administered and the use to which it is put

In this project the researcher will look at the source and the constitutional and judicial

support right to information has in India. The researcher first aims to look at the legal

background that surrounded the RTI Act and the various pro-secrecy legislations that

continue to exist India, which made it all the more mandatory for the enactment of such a

legislation. The researcher then will try and analyze the provisions of the Act that are

relevant to administrative law. The researcher will look at the various authorities that have

been created under the Act and the powers and duties that have been conferred upon them.

An analysis of the appellate authorities that have been set up under the Act will be

undertaken. Further, the researcher will look at the exceptions that have been allowed under

the Act in order to examine the effectiveness of the Act. Finally, the researcher seeks to

compare the Indian Right To Information Act with the British Freedom of Information Act

and bring out the differences between the two legislations.

1.1.Research MethodologyIn this project the researcher aims to analyze the provisions of the Right To Information Act

from the point of view of Constitution of India. The researcher aims to look at the legal

background of the Act and the source and constitutional support the Act has. The researcher

then aims to analyze the provisions of the Act that are relevant to administrative law. The

researcher will look at the powers and duties of the various authorities that have been created

under the Act. Further, the researcher will look at the exceptions that have been allowed

under the Act Finally, the researcher seeks to compare the Indian Right To Information Act

with the British Freedom of Information Act. The objective behind this paper is to critically

analyze the Right To Information Act from the perspective of Administrative Law.

2 PP Craig,Administrative Law, Street And Maxwell, 5th ed., 2003, p.218


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1.2. Scope, Limitations and Sources

Scope: The scope of this project extends to analyzing the different provisions of the Right

To Information Act from the perspective of Administrative Law. The Scope extends to

tracing the legal background of the Act and also extends to a comparison between the Indian

RTI Act and the British Freedom of Information Act. Limitations: Since there are no reported

cases on the Right To Information Act, the researcher could not rely upon judicial

authorities for the interpretation of the various provisions of the Act. Due to constraints of

space the researcher had to limit his analysis to only the important provisions.

Sources - The researcher has made use of both primary and secondary sources for the

purposes of this project..

1.3 Research Questions

y What is the need for an Act like the Right To Information Act?y What is the legal background of the Act and which pro-secrecy Legislations

continue to exist in India?

y What is the constitutional source of the Act and what judicial support has the Actgotten?

y What are the powers and duties of the various authorities set up under the Act andwhat are the exceptions enumerated in the Act?

1.4 Chapterization

Chapter II deals with the legal background of the RTI Act and the various pro-secrecy

legislations that exist in India.

Chapter III deals with definitions of the Act and the judicial support that right to information

has.

Chapter IV critically examines the various provisions of the Act from the point of view of

Administrative Law.


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Act (RTI) in 2005.10

The 1988 amendment to the Prevention of Corruption Act (PCA)

affected corruption in the public sphere by attaching criminal liability under the Indian Penal

Code to the acts of both public and private sector corruption and also defined the term public

servant, which had previously been left open to interpretation. The 2005 RTI Act aided the

fight against corruption by granting private citizens the fundamental right to retrieve

information from public authorities.11

The principal premise of the RTI is that through the

promotion of transparency and accountability, corrupt practices will no longer be worth the

risk of exposure.

2.2 The Right to Information Act A Brief Analysis

The RTI is a major legislative step in the Indian anti-corruption movement. This law,

enacted in October of 2005, effectively reverses the Official Secrets Act 1923 by forcing

public authorities to regularly self-report information about their dealings and also to provide

specific information in a timely manner as requested by citizens.12 In addition to facilitating

transparency in the duties of all public workers, the RTI can reach private bodies to a limited

degree.

2.2.1 Basics of the Act

With the enactment of the RTI, citizens of India have a fundamental right to access

information related to the functioning of their government. The essence of the RTI is that it

enables a citizen to examine, review and assess government actions and decisions to ensure

obedience to public interest, integrity and justice.13

The Act also establishes the governments

duty to provide that information. Public authorities must not only make access to this

information easy and inexpensive, but must also frequently publish certain information

without solicitation. The RTI includes penalty provisions for authorities who refuse to release

requested information and for those who do not provide it in a timely manner.14

10 Mander Harsh&Joshi Abha, PEOPLES POWER FOR THE CONTROL OF CORRUPTION. www.chri.org.11 Raj Kumar, CORRUPTION, DEVELOPMENT AND GOOD GOVERNANCE: CHALLEN GES TO

PROMOTING ACCESS TO JUSTICE IN ASIA, Mich. St. J. Intl. L. 475, 2008., p. 16.12 B.S. Chimni, CO-OPTION AND RESISTANCE: TWO FACES OF GLOBAL ADMINISTRATIVE LAW,

N.Y.U. J. Intl. L. & Pol. 799 , (Summer 2005)., p. 37.13

M.M. Ansari, IMPACT OF RIGHT TO INFORMATION ON DEVELOPMENT: A PERSPECTIVE ON

INDIAS RECENT EXPERIENCES , UNESCO, May 15, 2008., p. 4.14

Kamlendra Kanwar, ECONOMIC GROWTH STIFLED BY POOR INFRASTRUCTURE , Hindu Business

Line, Oct. 24, 2008.


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2.3 Supreme Court on the Right to Information

Right to Information as a Fundamental Right:

The Supreme Court has upheld, in a catena of cases, that the right to information is a

fundamental right flowing from Art. 19(1)(a) of the Constitution. Over the years, the

Supreme Court has consistently ruled in favour of the citizens right to know. The nature of

this right and the relevant restrictions thereto, has been discussed by the Supreme Court in a

following cases:

y In Bennett Coleman,15 the right to information was held to be included within theright to freedom of speech and expression guaranteed by Art. 19(1) (a).

y InRaj Narain,16 the Court explicitly stated that it is not in the interest of the public tocover with a veil of secrecy the common routine business the responsibility of officials to

explain and to justify their acts is the chief safeguard against oppression and corruption.

y In S.P. Gupta,17 the right of the people to know about every public act, and the detailsof every public transaction undertaken by public functionaries was described.

y In Cricket Association of Bengal,18 the right to impart and receive information fromelectronic media was included in the freedom of speech. The airwaves were held to be public

property and hence distribution of these waves between government and private channels was

to be done on an equitable basis.

y In P.U.C.L.,19 the right to information was further elevated to the status of a humanright, necessary for making governance transparent and accountable. It was also emphasized

that governance must be participatory.

15

Bennett Coleman v. Union of India, AIR 1973 SC 60.

16 State of UP v. Raj Narain, (1975) 4 SCC 428.

17 S.P. Gupta v. UOI, AIR 1982 SC 149.

18Secy., Ministry of I&B, Govt. of India v. Cricket Assn. of Bengal, (1995) 2 SCC 161.

19Peoples Union for Civil Liberties v. UOI, 2004 (2) SCC 476.


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As can be seen, the above judgments cut across freedom of the individual, privacy, freedom

of the press, duties of Governments, duties of public authorities, right to seek disclosure of

information about candidates contesting in elections and so on and so forth and also to the

exceptions contained in Art. 19(2) of the Constitution.


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CHAPTER III

DEFINITIONS

2.2.2.1. Information

As defined in the RTI of 2005, the term information means any form of material, including

records, documents, memos, e-mails, opinions, advices, press releases, contracts, papers,

samples, logbooks, models, data material in any electronic form and information relating to

any private body that can be reached by the public authority under any law in force at the

time of the request. It is important to note that Indias RTI can reach private bodies to a

limited extent, as it applies to all bodies, owned, controlled or substantially financed directly

or indirectly by funds provided by the . . . Government.20

Under this provision, if a private

entity receives financial assistance or subsidies from the government, they may be obligated

to provide information under the law. Furthermore, the public may access information

relating to any private body which can be accessed by a public authority under any other law

for the time being in force.21 This means that if a public authority should have obtained

information from a private body, but has not, the public is entitled to have access to that

information.22

For example, if a public official should have obtained a copy of a hazardous

waste report from a private contractor, but for whatever reason has not yet received the copy,

that information can be requested under the RTI. In essence, the public authoritys ability to

access the document creates a constructive right of the citizen to access the document under

the RTI.23

2.2.2.2. Public Authority

Public authority as defined in the Act means any institution of self-government established

by any law, notification, or order made by the appropriate government (federal, state or local)

and also covers all bodies owned, controlled or substantially financed by the government

and NGOs substantially financed directly or indirectly by the government.24

This definition

of public authority is similar to the definition of public official included in the 1988

20Charmaine Rodrigues, PROMOTING PUBLIC ACCOUNTABILITY IN OVERSEAS DEVELOPMENT

ASSISTANCE: HARNESSING THE RIGHT TO INFORMATION, Commonwealth Human Rights Initiative,

Apr. 2006., p. 5.21

Id.22 Nigam, S., ABOUT YOUR RIGHT TO INFORMATION (SIMPLIFIED), Vol. 16, We the People

Publications, 2006.23

Jain, L., THE INFORMATION GLEANER: A COMPLETE AND PRACTICAL GUIDE TO THE RIGHT

TO INFORMATION LAW IN INDIA , 14 (Capital Law House, 2007)., p. 14.24

Yashada, RIGHT TO INFORMATION ACT, 2005: A PRIMER, (Tata McGraw-Hill Publishing Co. Ltd.,

2006)., pp. 4-5.


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PCA. Like the PCA definition, the definition of public authority in the RTI is extensive,

and is meant to include not only public officials in the strict sense of the word, but also

government contractors, federally funded agencies, and other organizations which are directly

or indirectly financed by the government. This somewhat broad definition is meant to

encompass a wide range of money handlers, as an attempt to prevent misappropriation of

government funds and combat the widespread corruption epidemic.25

2.2.3 Procedure of the Act

The RTI is enforced in all Indian states (excluding the state of Jammu and Kashmir for

reasons of political conflict and accession involving Pakistan) and at all levels of government,

including central and state administrations and local bodies, as well as NGOs. The RTI calls

for every public authority to appoint public information officers (PIOs) within one hundred

days after its enactment. These PIOs should be appointed at each sub-divisional or sub-district level. The function of the PIO is to receive applications for information or appeals as

allowed for under the RTI. In essence, they are the custodians of the law. In this respect, the

law provides a check on the public authorities by setting up an independent third party to

serve as the intermediary between the citizen and the public authority.26

The procedure of the RTI begins when an Indian citizen makes a request to a PIO for access

to information.27

A citizen need not give a reason for the inquiry. A citizens request triggers

the start of a thirty-day time period in which a PIO must respond to the request. If the

information is not supplied, the citizen has the right to appeal to a senior authority from the

central or state PIO. If that appeal is denied, the citizen may make a second appeal to the

Central Information Commission. The Act penalizes officers who delay the procurement of

information or default on their obligation to provide information not falling under any of the

rules exceptions.28

25 Sunil Sondhi, COMBATING CORRUPTION IN INDIA: THE ROLE OF CIVIL SOCIETY , July 2000.26

Sidney Webb and Beatrice Webb, HISTORY OF TRADE UNIONISM. AMS Press, New York,http://openlibrary.org/works/OL1184212W/The_history_of_trade_unionism retrieved 2011-01-19.27 RTI ACT HELPS EXPOSE CHINKS IN CHHATTISGARH PSC EXAM , Rediff India Abroad, June 13,

2007.28Raj Kumar, CORRUPTION AND HUMAN RIGHTS: PROMOTING TRANSPARENCY IN

GOVERNANCE AND THE FUNDAMENTAL RIGHT TO CORRUPTION -FREE SERVICE IN INDIA, 17

Colum. J. Asian L. 31, Fall 2003.


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CHAPTER IV

RTI AND CONSTITUTIONAL FUCTIONARIES

Justice Mathews ruled in the case of State of UP v. Raj Narain29 said, "In a

government of responsibility like ours, where all the agents of the public must be responsible

for their conduct, there can be but few secrets. The people of this country have a right to

know every public act, everything that is done in a public way by their public functionaries.

They are entitled to know the particulars of every public transaction in all its bearing. Their

right to know, which is derived from the concept of freedom of speech, though not absolute,

is a factor which should make one wary when secrecy is claimed for transactions which can

at any rate have no repercussion on public security".

It is clear fact that transparency is eminent ingredient of efficient democracy. In this era

where the Right to information Act has been come into force there have been rising debate on

its applicability on constitutional/ public authorities.

Whereas there is a clear understanding that all Citizens can avail of the Right to Information,

there is some lack of clarity about which institutions have been mandated to give information

by the Right to Information Act.

Most of this arises because of the arrogance of many who think they cannot be answerable to

the Common Citizen of India. They forget that the Citizen is the sovereign of this democracy.

The RTI act lays down that all public authorities have to provide information to the Citizen.

Public authority has been defined by Section 2 (h) of the act as follows:

h) public authority means any authority or body or institution of self government

established or constituted,

(a) by or under the Constitution ;

(b) by any other law made by Parliament;

(c) by any other law made by State Legislature;

(d) by notification issued or order made by the appropriate Government,

29 Supra 16


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and includes any--

(i) body owned, controlled or substantially financed;

(ii) non-Government organisation substantially financed,

directly or indirectly by funds provided by the appropriate Government;

Effectively a) , b) and c) and d) mean any authority or body which we consider as

Government in common parlance- all Ministries and their departments, Municipal Bodies,

Panchayats, and so on. This also includes Courts, Universities, UPSC, Public Sector

Undertakings like Nationalised Banks, LIC, and UTI amongst others. Even all Stock

Exchanges and SEBI are Public authorities and subject to RTI.

It is worth remembering that establishments of the Parliament, Legislatures, Judiciary,

President and the Governors have also been brought under the surveillance of the Common

Citizen. It is unfortunate that some Constitutional functionaries and other bodies have beendisplaying their arrogance and ignorance by claiming that they are above the law.

Subclause d (i), and (ii) together mean any non-government organisations which are

substantially owned, controlled or financed directly or indirectly by the Government would

be covered. Thus aided schools and colleges are Public Authorities, as also any trusts or

NGOs which have significant Government nominees; or Companies where the Government

either owns substantial stake, or has given substantial finance, are directly covered under the

RTI Act. Substantial finance must take into account tax-incentives, subsidies and other

concessions as well.

There is some confusion about the words substantial finance. This confusion also prevails in

some of the decisions of the Information Commissions as well. Let us again look at the

relevant words carefully:

2 h) public authority means any authority or body.

(d)..and includes any--

(j) body owned, controlled or substantially financed;(ii) non-Government organisation substantially financed,

directly or indirectly by funds provided by the appropriate Government;


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The finance could be either as investment or towards the expenses, or both. The way

in which the words have been placed, indicates that perhaps (i) relates to investments and (ii)

relates to the running expenses.

Thus every institution which is owned by the Government is clearly covered. By anynorms, whenever over 50% of the investment in a body belongs with any entity, it is said to

be owned by that entity. Since bodies owned by Government have been mentioned

separately, the words controlled and substantially financed will have to be assigned some

meaning not covered by ownership. Thus it is evident that the intention of the Parliament is to

extend the scope of the right to other organisations, which are not owned by it. No words in

an Act can be considered to be superfluous, unless the contradiction is so much as to render a

significant part meaningless or they violate the preamble.

Therefore it becomes necessary to consider a situation where an entity may be

controlled by Government without ownership or substantial finance. Such a situation exists

when a Charity Commissioner or Registrar of Societies appoints an administrator to run the

affairs of a Trust or Society, or a Court Liquidator takes over administration of some body.

The interpretation given by some that control means any kind of control like that excercised

by the Registrar of Societies over Cooperative societies , or by RBI on all private banks is too

wide, and certainly not supported by the law. If we take this very wide interpretation, all

Companies are controlled by the Registrar of Companies, all Sales tax dealers by the Sales

tax authorities, and all factories by the Inspector of factories and so on. By this logic, all

Companies, sales tax dealers and factories amongst others will have to give information

under the RTI Act. Such a wide interpretation is clearly not intended in the law.

Let us now consider what are the implications of the words substantially financed. It

is obvious that as per Section 2 (h) (i) body substantially financed would be a body

where the ownership may not lie with the Government, nor the control. Hence clearly the

wording substantially financed would have to be given meaning at less than 50% holding.

The Company Law gives significant rights to those who own 26% of the shares in a

Company. Perhaps this could be taken to define the criterion of substantial finance. The

finance could be as equity, or subsidies in land or concessions in taxation.


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Similarly some definition is required where the State provides money for the running

expenses of an Institution as covered under (ii). Presently, aided schools and colleges have all

clearly been accepted as Public authorities though there appears to be no clarity in the

matter of NGOs and other organisations which are receiving significant amounts of finance.

The key approach and philosophy of the RTI act appears to be that since the State acts

on behalf of the Citizens, wherever the State gives money, the Citizen has a right to know. In

my opinion if the money given for the running expenses is over 1 crore the body should be

considered as receiving substantial finance and is covered in the definition of a Public

authority.

At times it has been argued that to be a Public authority, a body must meet the

criterion of being a State against which a writ is maintainable. If the intention of the

Parliament was to restrict the right to bodies which are the State, it would have said so,

since the concept is well established. The term Public Authority is broader and more

generic than the word State under Article 12 of the Constitution. Hence the intention of the

Parliament was clearly based on giving the Citizens,- its masters,- the right to information

over all entities owned by them, as well as where their money is being invested or spent.


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CHAPTER V

CONCLUSION AND CRITICISM

While RTI critics will admit that the Act is a huge step toward greater transparency and

accountability in India, the Act has been criticized on several grounds.30

2.2.4.1. Lack of Publicity Will Renders Law Useless

Critics of the law argue that because the Act only provides private citizens with the right to

obtain information, the law will not produce enough results to promote a change in the

political culture. Critics suggest that corruption scandals will remain rampant because:

1) the RTI allocates power to the average citizen and the average citizen lacks the

time and resources to uncover corruption31 and

2) public authorities know and exploit the fact that individual private citizens have

less power. The argument is that Indian citizens lack political clout and confidence in

their own knowledge of the legal system and this inadequacy creates a rift of power

and authority, with the citizen at a disadvantage.32

However, advocates of the RTI

point to the fact that NGOs can obtain information through private citizens and use

that information against public officials.33

If NGOs can use public citizens as a conduit to obtain information on suspected corruption,

the purpose of the Act will be fulfilled.34

The RTI was enacted in order to expose corruption.

The intent of the legislators was not that all corruption issues would be solved by private

citizen inquiries, but that with a culture of transparency and accountability, the risks

associated with corrupt practices would become so great that corruption would not occur.35

The debate is whether the RTI as it stands can fulfil its promise, given that the private citizen

30 Shyamlal Yadav, MAIN OBSTACLES OF RIGHT TO INFORMATION ACT, India Today, 2008.31Holmstrom, Bengt, MORAL HAZARD AND OBSERVABILITY. 1979, Bell Journal of Economics, pp. 74-

76. http://www.jstor.org/stable/3003320 retrieved 2011-01-19.32Sridhar, Dr. Madhabhushi, RIGHT TO INFORMATION LAW AND PRACTICE, 1 st ed., 2006, Wadhwa and

Company Nagpur, Nagpur p.15133

Id., p. 40.34Barowalia, Dr. J.N., COMMENTARY ON THE RIGHT TO INFORMATION A CT, 1st ed., 2006, Universal

Law Publishing Co., Delhi p.12.35 Id., p.22.


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is at a disadvantage to the public official in both knowledge of the system and access to

power.36

2.2.4.2 Too Many Exemptions

Even if the RTI would otherwise scare politicians with the threat of the democratic process

(i.e. citizens getting involved and promoting change), critics argue that overly-broad

exemptions to the RTI render the Act ineffective in many instances.37

Critics point to several

exemptions which contain vague language that under liberal interpretation provides public

authorities a shield from the RTIs provisions. Some overly-vague exemptions include: s.

8(1)(h): providing an exemption for information that would impede the process or

investigation of offenders, s. 8(1)(j): providing an exemption for information relating to

personal information, which has no relationship to any public activity or interest, and s7(9):

providing that information will be provided in the form in which it is sought unless doing

so would contribute to the diversion of resources of the public authority.

2.2.4.3 No Whistleblower Protection

The last major criticism of the RTI is that the Act lacks a clause protecting whistleblowers

from retaliation by the powerful institutions they are capable of bringing down. India does

not have a statute protecting whistleblowers in any capacity, and critics believe this provides

a major disincentive for those with important information about corruption to come

forward.38

The rationale for protecting whistleblowers according to proponents of an

amendment to the RTI or supplementary legislation is that, in order for potential

whistleblowers to feel safe bringing critical information to the attention of investigators, they

should be statutorily protected.39

Critics argue that, in a democratic society, the goal should be to make the act of whistle-

blowing the responsibility of all citizens. However, these duties cannot be expected of

36 Study report on Establishing Transparent, Accountable and Responsive Governance Through the Participation

of Non-Party Political Organisations in Electoral Politics, Centre for Panchayati Raj, National Institute of RuralDevelopment, Hyderabad, 2005.37 Slough P and Rodrigues, C (2005) INDIAS RIGHT TO INFORMATION MOVEMENT MAKES A

BREAKTHROUGH, Open Government: A Journal on Freedom of Information. Volume 1, Issue 1 published on

21st March, P. 1.38

Supra 4.39 Id..


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average citizens without the State in turn offering practical legal protection to those citizens.40

Because the RTI pits individual citizens against powerful companies and political institutions,

critics suggest that amending the statute to protect whistleblowers from harmful retaliation

would encourage inquiries under the Act and ensure the Acts success against corruption.41

2.3 Effectiveness of RTI

Corruption is the largest hurdle to Indias pursuit of economic achievement. In the last three

decades, Indian leaders have begun the complicated procedure of rooting out corrupt

practices using various legal treatments. The enactment of the PCA created a set of guidelines

instructive on the punishment of corrupt public officials while the more recent enactment of

the RTI has provided a means by which Indian citizens can hold their government officials

accountable. While the PCA and the RTI have radically changed the laws on the books,

major prosecutions under the Acts have yet to take place. Critics have suggested various

reasons for why these Acts have not produced results to date. Some suggest that the RTIs

reliance on the average citizen to reveal scandals is unreasonable. Others think that too many

exemptions in the Act will facilitate noncompliance by corrupt public officials. The question

for India in coming years will be how to implement these laws to effectively reduce

corruption.42

In India the pressure to enact legislation is building from various quarters, however the laws

fall short of international standards and are enacted without any public participation anddebate, thereby in a sense defeating the entire purpose of the Right to Information legislation.

2.3.1 Transparency and Accountability

After the advent of the RTI, the chances of the corrupt getting caught in India have suddenly

shot up. The act is also being used to fight the indifference and petulance found within the

ranks of India's vast bureaucracy. Shailesh Gandhi, a renowned RTI activist, remembers how

40Indo-Asian News Service (IANS), STATE INFORMATION COMMISSIONS A HURDLE IN

IMPLEMENTING RTI: SURVEY, http://www.thaindian.com/newsportal/uncategorized/state-information-

commissions-a-hurdle-in-implementing-rti-survey_10093713.html retrieved 2011-02-17.41

Agrawal, Subhash Chandra, MONEY BEING WASTED IN REDTAPE WHILE REPLYING TO RTI

APPLICATIONS, http://www.merinews.com/article/money-being-wasted-in-redtape-while-replying-on-rti-

applications/15827307.shtml retrieved 2011-02-17.42 Ibid.


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a poor man got his water connection in his home in Bombay by using RTI.43

As the

municipal authorities wriggled out of responsibility by blaming the traffic department for not

letting them dig a road to provide a connection, the man, Mr. Gandhi says, used RTI to

inquire if that were the case. "It turned out the traffic department had no problem with it, and

so the man had to be given a water connection," Gandhi says.44

Several complaints of corruption have been corroborated with evidence obtained under the

Right to Information Act, which were made against shop owners and food department

officials.45

2.3.2 Checking abuse of Administrative Power

The Right to Information, which was originally conceived as a tool to fight corruption, red

tape and officialdom, ironically has fallen victim to the same evils it was designed to

conquer.

Activists say the move to appoint serving or retired bureaucrats as information

commissioners defeats the purpose of the new law, as they have a tendency to hold or delay

the dissemination of information. Bureaucrats in September blanched at having government

office memoranda known as file notings accessible to the public. File notings track the

responses of different departments and officials, and identify who did what when, and why.

India's Prime Minister Manmohan Singh, too, is against the idea of including file notings

within the purview of the RTI. "Bureaucrats need autonomy to make decisions in private," he

said last month.

But as activists point out, file notings fall squarely under the information law, and blocking

access would be illegal.

"Bureaucrats argue that if file notings are disclosed, then officers will not express their

opinions freely and honestly. Honestly that's rubbish. The real effort is to shield those who

43Sridhar, Dr. Madhabhushi, RIGHT TO INFORMATION LAW AND PRACTICE, First edition, 2006,

Wadhwa and Company Nagpur, Nagpur p.25.44Chopra, Anuj, RTI NEW TOOL TO FIGHT RED TAPE, CORRUPTION ,

http://right2information.wordpress.com/2006/06/17/rti-new-tool-to-fight-red-tape-corruption retrieved 2011-02-

17.45

Khejriwal, Arvind, HOLDING OFFICIALDOM RESPONSIBLE, Seminar, The challenge to media, Seminar

551, July 2005. http://www.indian-seminar.com retrieved 2011-02-17.


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tend to write notes that are otherwise wrong or illegal," says Shekhar Singh of the National

Campaign for People's Right to Information.46

The main bottleneck in the implementation of the RTI Act in the country are the State

Information Commissions (SIC), which are meant to facilitate the dissemination of theinformation sought, according to a study by an NGO released here Monday. The study was

conducted by the Society of Participatory Research in Asia (PRIA) across 10 states in early

2008. A total of 420 citizens who have used Right to Information Act were interviewed. It

highlights that even though three years have passed since enactment of the RTI Act, citizens

continue to face innumerable difficulties in accessing information.47

The Information Commissions in Bihar, Gujarat, Jharkhand, Orissa, Madhya Pradesh and

Kerala have poor disposal rates of appeals and complaints and citizens have to wait for

several months in these states before their appeal is heard, said Vikas Jha, who works with

PRIA, which coordinated the survey work.

Demanding high costs by including irrelevant and unsought documents is part of PIOs

strategy to discourage RTI petitioners from seeking information. The best way to overcome

such strategy, according to RTI activist Subhash Agrawal is to put the burden of copying

charges where documents are to be provided free-of-cost for fault of PIO like late response,

and then the cost may be recovered from salary of concerned PIO48

.

It is observed that PIOs usually spend postal-expenses of Rupees 54 (27x2) in demanding a

cost of just Rupees two for one page of copied document apart from spending extra man-

hours in responding after receiving the demanded cost. RTI petitioners have also to spend

likewise unnecessarily for a petty sum of like rupees two49.

46Chopra, Anuj, RTI NEW TOOL TO FIGHT RED TAPE, CORRUPTION , 6856798i


17.47

Indo-Asian News Service (IANS), STATE INFORMATION COMMISSIONS A HURDLE INIMPLEMENTING RTI: SURVEY, http://www.thaindian.com/newsportal/uncategorized/state-information-

commissions-a-hurdle-in-implementing-rti-survey_10093713.html retrieved 2011-02-1748

Agrawal, Subhash Chandra, MONEY BEING WASTED IN REDTAPE WHILE REPLYING TO RTI

APPLICATIONS, http://www.merinews.com/article/money-being-wasted-in-redtape-while-replying-on-rti-

applications/15827307.shtml retrieved 2011-02-1749 Ibid.


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The waiting period varies from eight months to two years in the Maharashtra Information

Commission and Central Information Commission, Jha added. There are widespread

complaints against the information commissions of Orissa, Bihar and Uttar Pradesh of poor

decisions (one line orders without explaining facts of the appeal) and the reluctance to impose

penalties on Public Information Officers, he said. Another shocking finding is that after

dealing with several thousand appeals and complaints, the information commissions in Uttar

Pradesh, Rajasthan and Madhya Pradesh have penalised very few PIOs, he added.50

Even after obtaining information and exposing corruption, people are reaching a dead end.

The governments often fail to take any action on complaints made by the people. Several

complaints of corruption, along with evidence obtained under the Right to Information Act,

have been made against shop owners and food department officials. However, not a single

FIR has been registered so far. This is because the entire vigilance and anti-corruption setupin the states is under the control of the executive. In fact, it is often times noticed that the only

people that the complaints can be made to are the same set of people against whom one has

complained.51

The act is also not enforced in the Indian state of Jammu and Kashmir, where activists claim

human rights violations by security forces are high.52

50 Indo-Asian News Service (IANS), STATE INFORMATION COMMISSIONS A HURDLE IN

IMPLEMENTING RTI: SURVEY, http://www.thaindian.com/newsportal/uncategorized/state-information-commissions-a-hurdle-in-implementing-rti-survey_10093713.html retrieved 2011-02-1751 Khejriwal, Arvind, HOLDING OFFICIALDOM RESPONSIBLE, Seminar, The challenge to media, Seminar

551, July 2005. http://www.indian-seminar.com retrieved 2011-02-1752Chopra, Anuj, RTI NEW TOOL TO FIGHT RED TAPE, CORRUPTION,


17.


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BIBLIOGRAPHY

Books Referred

Yashada, RIGHT TO INFORMATION ACT, 2005: A PRIMER, (Tata McGraw-Hill

Publishing Co. Ltd., 2006).

Sridhar, Dr. Madhabhushi, RIGHT TO INFORMATION LAW AND PRACTICE, 1st

ed.,

2006, Wadhwa and Company Nagpur, Nagpur.

Journals and Articles

Anabil Bhattacharya, The Right To Information Act, 2005- new responsibilities of every

public authority, (2006) 26, Insurance Times.

Slough P and Rodrigues, C (2005) INDIANS RIGHT TO INFORMATION MOVEMENT

MAKES A BREAKTHROUGH, Open Government: A Journal on Freedom of Information.,

Krishnan A. Devidoss, ENERGIZING THE INDIAN ECONOMY: OBSTACLES TO

GROWTH IN THE INDIAN OIL AND GAS SECTOR AND STRATEGIES FOR

REFORM, Vol. 30,B.C. Intl & Comp. L. Rev. 203, Winter.

Raj Kumar, CORRUPTION, DEVELOPMENT AND GOOD GOVERNANCE:

CHALLENGES TO PROMOTING ACCESS TO JUSTICE IN ASIA, Mich. St. J. Intl. L.

475, 2008

B.S. Chimni, CO-OPTION AND RESISTANCE: TWO FACES OF GLOBAL

ADMINISTRATIVE LAW, N.Y.U. J. Intl. L. & Pol. 799, (Summer 2005).

M.M. Ansari, IMPACT OF RIGHT TO INFORMATION ON DEVELOPMENT: A

PERSPECTIVE ON INDIAS RECENT EXPERIENCES, UNESCO, May 15, 2008.

Kamlendra Kanwar, ECONOMIC GROWTH STIFLED BY POOR INFRASTRUCTURE,

Hindu Business Line, Oct. 24, 2008.


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Charmaine Rodrigues, PROMOTING PUBLIC ACCOUNTABILITY IN OVERSEAS

DEVELOPMENT ASSISTANCE: HARNESSING THE RIGHT TO INFORMATION,

Commonwealth Human Rights Initiative, Apr. 2006.

Nigam, S., ABOUT YOUR RIGHT TO INFORMATION (SIMPLIFIED), Vol. 16, We th

ePeople Publications, 2006.

Jain, L., THE INFORMATION GLEANER: A COMPLETE AND PRACTICAL GUIDE TO

THE RIGHT TO INFORMATION LAW IN INDIA, 14 (Capital Law House, 2007).

Sunil Sondhi, COMBATING CORRUPTION IN INDIA: THE ROLE OF CIVIL SOCIETY,

July 2000.

Raj Kumar, CORRUPTION AND HUMAN RIGHTS: PROMOTING TRANSPARENCY INGOVERNANCE AND THE FUNDAMENTAL RIGHT TO CORRUPTION-FREE

SERVICE IN INDIA, 17 Colum. J. Asian L. 31, Fall 2003.

Shyamlal Yadav, MAIN OBSTACLES OF RIGHT TO INFORMATION ACT, India Today,

2008.

Slough P and Rodrigues, C (2005) INDIAS RIGHT TO INFORMATION MOVEMENT

MAKES A BREAKTHROUGH, Open Government: A Journal on Freedom of Information.

Websites visited

http://www.humanrightsinitiative.org

http://www.thehindubusinessline.com

http://openlibrary.org

http://www.jstor.org

http://www.thaindian.com

http://www.merinews.comhttp://right2information.wordpress.com

http://www.indian-seminar.com

http://www.thaindian.com

http://www.indian-seminar.com

http://rti.india.gov.in


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