REINVENTING DEMOCRACY THROUGH RIGHT TO

INFORMATION

The Twentieth Century, particularly the second half of it, witnessed an

unprecedented spate of decolonization. Nations after nations were born in quick

succession. Majority of newly born States chose democracy as a form of

governance. After more than half a century, the result of the experiment with

democracy is a mixed one. While democracy suffered untimely death in some

countries, many are still struggling to stabilize it. Notwithstanding this, there are few

exemplary success stories as well. Undoubtedly, the finest and at times the most

amazing example is India.

As Indian Democracy evolves amidst trial, tribulations and successes, it both

influences and get influenced by various international developments. One such

celebrated development, occurring in so many parts of the world, is the recognition

of a basic human right i.e. ‘The right to Information’. It is now accepted that

democracy does not simply mean that Executive remains responsible to the

Legislature and that people should sink into passivity after exercising their franchise

during elections. Democracy now has a more positive and dynamic content.

Meaningful and constant dialogue between the political executive and the governed

class is increasingly considered a sine qua non of a vibrant system of governance.

Participation in governance is the catchword and this can only be ensured if there is

an effective right to information. Let us remember the golden words of Justice Louis

Brandies of US Supreme Court that “ A little sunlight is the best disinfectant.”

In pursuance of international trend and domestic demand, the Government of

India enacted the Right to Information Act, 2005 (for short, the Act). Section I of the

Paper will discuss the general concept of right to information, international

recognition of the right, constitutional position in India, judicial pronouncements and

the background leading to the enactment of the Act. Section II will examine the

provisions of the Act, as elaborated by decisions of Central Information Commission.

Section III will capture the experience of the working of the Act. Section IV will be the

conclusion.

1

Section I

STEPS TOWARDSTHE FREEDOM OF INFORMATION IN INDIA

Governments, like human beings, have a tendency to conceal and be

secretive. An Israeli author Itzhak Galnoor in his book Government Secrecy in

Democracy writes that, “despite the differences, democratic societies share a

common attitude. Both the people’s right to know and the government’s privilege to

conceal are axiomatically and often grudgingly accepted.” If this is the situation of

democratic societies, one can imagine what happens in military rule, dictatorship

and monarchies.

The Secrecy Regime

Article 372 of the Constitution allows pre independence laws to remain in

force unless repealed or amended by Indian law makers. This is one reason why the

colonial culture of secrecy and maintaining distance from the people is still the ethos

of the Indian administration.

The Official Secrets Act, 1923, modeled on the 1911 Official Secret Act of

England, is very restrictive of the use and dissemination of governmental

information. It prohibits disclosure of information indiscriminately. What aggravates

secrecy is indiscriminate classification of information as ‘Secret’.

Sections 123 and124 of the Indian Evidence Act, 1872, Atomic Energy Act ,

1962, The Commission of Inquiry Act, 1952, as amended in 1986 , The Public

Records Act, 1993 are some examples of laws breeding, protecting and promoting

secrecy. Additionally, plethora of subordinate legislation remains inaccessible.

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Yet The Commitment

India had the unique distinction of being original member of the United

Nations (UN) even before becoming independent. The UN, in its first session itself

adopted a resolution proclaiming “Freedom of Information” as a fundamental human

right, a touchstone of all the freedoms to which the UN is consecrated. Such

unequivocal and strong commitment of UN was reflected in the Universal

Declaration of Human Rights (UDHR), adopted by UN General Assembly in 1948.

Article 19 of the UDHR embodies the concept of information as a ‘right’. Article

19(2) of the International Covenant on Civil and Political Rights (ICCPR), adopted by

UN General Assembly in 1966, guarantees the right to seek, receive and impart

information. India is a State, party to the Covenant. Article 13 of American

Convention on Human Rights, Article 10 of European Convention on Human Rights,

Article 9 of the African Charter of Human and People’s Right also contain provisions

guaranteeing this. Apart from above international as well as regional legal

instruments, all modern human right instruments are categorical in recognition of

freedom of information. Recently for the first time International tribunal, namely, the

Inter American Court of Human Rights in Marcel Claude Reyes and Others v Chile

held that access to information is a basic human right.

The Indian Context

The right to information has traveled a long journey in India. Unlike some

countries, the Indian Constitution does not make an explicit mention of it in Chapter

III as a fundamental right but it does indirectly underpins the citizen’s right to

information. The right has it’s root in Article 19, encompassing the freedom of

speech and expression, which received liberal interpretation by the courts.

One of the earliest cases on freedom of expression and right to information

was Bennett Coleman & Co v. Union of India, (1973) where the court struck down

newsprint control order putting restrictions on acquisitions, sale and consumption of

newsprint saying that it directly affected the Petitioner’s right to freely publish and

circulate their Papers. The Court observed, “Freedom of speech and expression

includes within its compass the right of all citizens to read and be informed.”3

In the landmark case of State of Uttar Pradesh v. Raj Narain & Ors, (1975)

the Constitution Bench of the Supreme Court pertinently observed, “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”.

The principle was further enunciated by Supreme Court in S.P.Gupta v. Union

of India (1981) and in Indian Express Newspaper (Bombay) Private Limited v. Union

of India (1985). In Reliance Petrochemicals Limited vs. Proprietors of Indian

Express, (1989) the Supreme Court went to the extent of saying that the right to

know is an integral part of the right to life (Article 21 of the Constitution)

However, it is the judgment of the Supreme Court in Union of India v.

Association for Democratic Reforms (2002), which generated lot of excitement. In

this case the Court affirmed that voters have a right to be informed about the

antecedents of the candidates who will be required to declare their criminal record at

the time of the nomination. In the subsequent case, People Union for Civil Liberties

v. Union of India (2003), the Court did not allow the government to dilute the

judgment in the Association case by introducing an amendment infringing on the

voters right to information.

International movement for right to information

Though the first access legislation, namely, Access to Public Records Act,

1766 of Sweden is 240 years old, it was the collapse of the Cold war that saw a

spurt in access legislations. Freedominfo.org records in its New Global Survey of

Freedom of Information Laws for 2006 that now 68 countries have access

frameworks, generally formal legislations. Last decade accounts for half of them.

The list includes democratic giants like India, United Kingdom, Uganda and

Germany. Among the strong access legislations are the American Freedom of

Information Act, 1966, South African law and the Right to Information Act of India.

However , China is at present the only major country which is by and large

untouched by the movement though signs of change are emerging.

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The demand for making the right enforceable in India

The grassroots movement led by NGO called Mazdoor Kisan Shakti

Sangathan (MKSS) and their frightfully popular ‘jan sunwai’ compelled the

Rajasthan Government to enact the Rajasthan Right to Information Act, 2000. Other

agencies like National Campaign for People’s Right to Information (NCPRI),

Commonwealth Human Rights Initiative (CHRI), Consumer groups and a section of

bureaucracy also threw their hat.

The credit for the pioneer legislation on the matter goes to the State of Tamil

Nadu and Goa. At the Central level, the need to enact a law on right to information

was recognized unanimously by the Chief Ministers Conference on “Effective and

Responsive Government”, held on 24th May, 1997 at New Delhi. The Government

of India introduced the Freedom of Information Bill in 2000 but the Freedom of

Information Act, 2002 could not see the light of the day as it was never notified.

In 2004 the United Progressive Alliance Government came to power at the

Centre. The newly set up National Advisory Council considered as many as 36

amendments to the Act and finally suggested that a more progressive, participatory

and meaningful law be introduced and thus RTI Act of 2005 was born. When the

Central Act came into force, Tamil Nadu, Goa, Rajasthan, Karnataka, Maharashtra,

Delhi, Assam, Madhya Pradesh and Jammu & Kashmir had their access legislations

in place. Except in J&K, all other state legislations voluntarily yielded to the Central

law.

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Section II

AN OVERVIEW OF THE RIGHT TO INFORMATION ACT 2005

The Right to Information Act came completely into force on the 12th October,

2005. It applies to whole of India except the State of Jammu and Kashmir. The gap,

however, is covered as the State of Jammu and Kashmir has its own access law.

Thus, the entire country is under the information régime.

The Act prescribes mandatory disclosure of certain information to citizens and

creates a legal-institutional framework for setting out the practical regime of right to

information for every citizen to secure access to information under the control of

Public Authority.

The Act lays down specific obligations on the Appropriate Governments,

Competent Authorities and Public Authorities, as defined by the Act. It also provides

for designation of Public Information Officers (hereafter referred as PIO) and

Assistant Public Information Officers (hereafter referred as APIO) in all Public

Authorities to attend to requests from citizens for information within stipulated time

limits. It provides for appeal to officers senior in rank to PIOs against the decisions of

PIOs. It also mandates the constitution of a Central Information Commission

(hereafter referred as CIC) and ‘State Information Commissions (hereafter

referred as SIC) to inquire into complaints, hear second appeals, and guide

implementation of the Act.

Section 22 of the Act mandates that the provisions of the Act , in case of

conflict, overrides the Official Secrets Act, 1923, and any legal instrument. By

inclusion of the word ‘instrument’, there is an obligation to bring all the rules,

guidelines, manuals etc in conformity with the Act.

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Ambit of applicability

The Act says that the information can be obtained from Public Authority,

which is defined under Section 2 (h) of the Act. Under the Act all constitutional,

statutory bodies, bodies created by government notifications and local self-

government bodies are Public Authorities. In addition, bodies owned, controlled or

substantially financed directly or indirectly by government are Public Authorities. This

takes care of Public Sector units. Finally non-Government Organisation substantially

financed by government are also within the definition of Public Authorities.

The Act , thus covers, important institutions like the two Houses of

Parliament, the State Legislatures, the Supreme Court, High Court and subordinate

courts , constitutional authorities like the Election Commission, Comptroller and

Auditor General of India and the Union Public Service Commission.

The term substantially financed has not been defined but some of the CIC

decisions have given the indication that wherever there is decisive government

funding, concessional land or tax benefit, the body can be deemed to be a Public

Authority.

In Veeresh Malik v IOA, the CIC decided that International Olympic

Association is a Public Authority being substantially financed by government. It

decided so as out of Rs 396 lacs corpus of IOA, Rs. 320 lacs have come from

government, some of the stadium were rented to it by government on a token rent of

Rs 1 and it’s accounts were subject to audit by CAG.

Funding could be both direct and indirect. In Sarbajit Roy v Delhi Electricity

Regulatory Commission, the CIC held that DISCOMs ( private power supply

companies in Delhi ) are Public Authorities because as per the agreement, they are

created by Government notification, Government has 49% equity stake,

Government has afforded them concessions and the Government has final say in

many matters.

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However domestic and foreign private bodies working within the country have

been excluded from the purview of the Act. It is of concern as with the opening of

economy and consequent liberalization, the government is withdrawing and the

private sector is increasingly assuming important public functions like electricity

supply, communication and public transport. The South African Promotion of Access

to Information Act provides for information from private bodies when it is necessary

to enforce people’s rights. Eventually, similar provisions will have to be introduced in

India.

Definition of the term ‘Information’

“Information” is defined under Section 2 (f) of the Act as: -

“any material in any form, including:

• records,• documents,• memos,• e-mails,• opinions,• advices,• press releases,• circulars,• orders,• logbooks,• contracts,• reports,• papers,• samples,• models,• data material held in any electronic form and• information relating to any private body which can be accessed by a PA under any other law for the time being in force.”

It is important to note that the information must exist in a material form and

hence personal opinions, which are not on record, cannot be asked for as they do

not exist in a material form. The applicant, therefore, cannot ask PIO to interpret the

Acts, Rules, give opinions, answer Interrogatories or rely on memory. In R L Kain v

Department of Posts, CIC said that PIO is not supposed to give commitment as to

when a stamp on Dr. Ambedkar will be released if there is nothing on record to that

effect.

8

If a record has been destroyed as per the record management policy of the

Public Authority or it has been stolen or is untraceable despite best efforts put in ,

the PIO cannot possibly provide them. Of late, CIC has been asking PIOs to file

affidavit that record is not available, that Public Authority file FIR in case of missing

record and fix responsibility. Further PIO is responsible to a citizen only for that

information which is available or ought to be available. He does not have to create or

generate fresh information.

The requestor’s right to have a sample extends to collecting sample from a

place of his choice and in his presence. But it is the requestor who has to pay for the

charges of testing the sample and also repair the damage caused as a result of

taking out the sample.

“Record” as per Section 2 (i) of the Act includes: -

any document, manuscript and file

any microfilm, microfiche and facsimile copy of a document

any reproduction of image or images embodied in such microfilm (whether enlarged or not), and

any other material produced by a computer or any other device.

‘Right to information’, as defined under Section 2 (j) is not limited to record but includes the right to-

inspection of work, documents, records

taking notes, extracts or certified copies of documents or records

taking certified samples of material

obtaining information in the form of diskettes, floppies,

tapes, video cassettes or in any other electronic mode or through printouts

where such information is stored in a computer or in any other device.

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Such an elaborate definition of ‘information’, ‘record’ and ‘right to information’

covers virtually the entire written record of the Public Authority contained in files and

electronic devices . Putting a rest to the confusion and the controversy about the

noting in a file, the CIC, by way of series of decisions, has held that a combined

reading of Sections 2(f), (i) & (j) would indicate that a citizen has the right of access

to the file notings unless it relates to matters covered under Section 8 of the Act.

Suo Moto Publication at Regular Intervals

Sections 4 of the Act calls for a regime of maximum disclosure on the part of

the Public Authority. The law stipulates that every Public Authority shall -

maintain all its records duly catalogued and indexed in a manner and

the form which facilitates the right to information under the Act;

ensure that all records that need to be computerised are computerised

and connected through a network all over the country to facilitate access to

such records. This has to be achieved within a reasonable time and subject

to availability of resources. The ultimate objective is to provide information

anywhere and anytime.

Section 4(1) (b) of the Act lays down a detailed list of information which

should be published by the Public Authority. The list, however, is only illustrative and

Public Authorities are free to publish more. By and large, it mandates the Public

Authority to publish the following: -

Details of the organizational structure, hierarchy among the officers,

remuneration and decision making power of employees and norms for

doing so

Directory of all employees, with details of PIO and AA

10

Details of budget of the Organisation, subsidy scheme and details of

recipients

Description of Rules, Regulations, Instructions, Manuals, Records and

statement of categories of documents held by it or under its control

Particulars of consultation mechanism with public and of consultative

bodies like Boards, Committees, Councils etc

Details of Information available in electronic form, and

Location of facilities where citizens can access the information

Section 4 (1) (c) of the Act requires that every Public Authority shall publish

all relevant facts while formulating important policies or announcing the decisions

which affect the public. Section 4 (1) (d) requires that it shall provide reasons for

administrative or quasi-judicial decisions to affected persons. It is, therefore,

incumbent on the Public Authorities to publish Court orders affecting people. (CIC in

Geeta Dewan Verma v DDA).

The information has to be disseminated taking into account cost

effectiveness, local language and the most effective method of communication in

that local area, like notice boards, news papers, public announcements, media

broadcasts, the internet or any other means.

The provision appears to be ordinary but it is very important, as unless the

government records are systematically maintained and made public, the entire

exercise of information seeking will remain tedious, caught in the web of plethora of

government records. As a matter of fact, the ideal situation envisages that the

quantity and quality of suo moto publication should leave minimum scope for

information requests.

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To facilitate disclosure of various categories of information listed out in

Section 4(1) (b) of the Act, sets of templates or guidelines have been prepared and

circulated by many State Governments for all concerned. There is a need to

continuously update them. User’s Guide, to be prepared by Government by

December 2006, under the provisions of Section 26(2), should be a convenient

publication to meet the requirements of effective awareness and publicity.

Delivery of Information

Section 5, 6 and 7 of the Act deals with the mechanism for grant of access to

information. Section 5 (1) of the Act requires a Public Authority to designate

sufficient officers as PIO in all administrative units and offices under it, as may be

necessary, to provide information to persons requesting the same.

Similarly, APIOs are to be designated at “each sub-divisional level or other

sub-district level” to receive applications or appeals and forward them on to the

concerned PIO, Appellate Authority (AA) and the CIC or the SIC. This is to ensure

that the public can apply for information in their own local areas without the need for

traveling long distances to the offices of the PIO/AA/IC. Postal departments have

officers designated as APIO for all the Central Public Authorities. Thus one can file

an application for information of any Public Authority of Central Government with his

nearest postal department APIO (not the nearest Post Office). The job of the APIO

ends with transmitting the application to the PIO, though he is advised to remain in

constant touch with PIO to know the status of the applications.

The Act obliges other officers to assist the PIO, if he seeks their assistance.

Other Officers whose assistance is sought, will be treated as a PIO for the purpose

of any contravention of the provisions of the Act. So if an officer, despite reference

from PIO, does not give information of his desk, penalty will visit him and not the

PIO.

12

Under Section 6 of the Act, the request for information can be made in writing

or through electronic means in English or Hindi or in the official language of the area

in which the application is being made. There is no requirement that application

should be on a Particular format or that it should be typed. The applicant must

always be polite while asking for information. Once system of online payment

becomes acceptable, emails are likely to be the largest mode of application in urban

India.

Keeping in view the wide diversity of conditions of Indian people, the PIO has

been given a facilitative function. The PIO, therefore, is obliged to get an oral

request reduced in writing, where such request cannot be made in writing. A duty

has also being cast on the PIO to provide all assistance to obtain information and

inspection to a sensorily disabled applicant. Hence helping the requestor is no more

a matter of courtesy, it is an obligation in law and its breach will attract penalty

provisions.

The applicant however is required to specify the particulars of the information

being sought and the application is to be accompanied by the prescribed fee, unless

the applicant is a ‘Below Poverty Line’ cardholder, in which case he has to attach a

copy of his card.

The applicant is not required to give reason for requesting the information or

any other personal details except those that may be necessary for the purpose of

contacting him/her.

It may happen that applicant may apply to the PIO in a Particular Public

Authority but the information is either held by another Public Authority or the subject

matter is more closely connected with the functions of another Public Authority, in

full or part. The PIO to whom the application is made cannot return it but has to,

under Section 6 (3) of the Act, transfer it to the concerned Public Authority, within 5

days of receipt of application, under intimation to applicant. The other Public

Authority will be subject to time limit for disposal from the date of receipt of the

application.

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However it has been clarified that no transfer is involved between PIOs of the

same Public Authority, meaning thereby, that the application can be to any PIO of

the Public Authority. However, it is in the interest of expeditious disposal that

applicant should try to give it to the PIO who is dealing with the matter.

Disposal of Request for Information

The PIO shall receive requests from persons seeking information after

payment of the fee prescribed in the Act. Such requests shall be disposed of either

by providing the information as requested or by rejecting the request for reasons to

be specified within the time period stipulated under the Act.

Section 7 (1) of the Act requires that the information requested shall be

furnished “as expeditiously as possible” but the maximum time limit is as under: -

48 hours of receipt in cases where the information sought for concerns the

life or liberty of a person. Such situations may relate to information

pertaining to electricity disconnection or about an unsafe building

30 days of receipt in general cases ( the ordinary case )

35 days if the application is submitted to the APIO or transferred by PIO to

the appropriate Public Authority under Section 6(3), as described before

40 days where information is about a Third Party

45 days when information pertains to human right violations of Excluded

agencies notified in Schedule II of the Act.

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As per Section 7 (3) of the Act, the period intervening between the dispatch of

Intimation to the applicant and the deposit of further fees representing the cost of

providing the information shall be excluded from the stipulated time limit. Further,

where information is to be provided, PIO has to intimate the amount of fees to be

paid, the details of fees levied and that the decision of levying a certain amount of

fee can be appealed against. It may be noted that the Act talks about calendar days

and not working days.

If decision on the request for information is not given within the period

specified as above, it is deemed to have been refused and the applicant can than

either file the first appeal to AA or file a complaint before IC.

Where a request has been rejected, the PIO. by a written order, has to

communicate to the person making the request

the reasons for such rejection, ( mere quoting of section is not sufficient)

the period within which an appeal against such rejection may be preferred; and

the Particulars of the appellate authority

A speaking order is must so as to enable the applicant in deciding to file an

appeal or not. In case of an appeal filed against the decision of the PIO, a speaking

order by the PIO would support his decision as the burden is on the PIO to prove

that he acted reasonably and diligently. It also enables the AA/IC in adjudicating the

case.

Section 7 (9) of the Act provides that information shall ordinarily be provided

in the form in which it is sought unless it would disproportionately divert the

resources of the Public Authority or would be detrimental to the safety or

preservation of the record in question. Hence, in a case where the applicant wanted

to know the details of all transfers made in 10 years, the CIC held that the request is

hit by Section 7(9).

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The information provided to an applicant, to the extent possible, has to be in

the form, which is easily understandable to him or her. However, where the

information was not kept in a tabular form, it was held that there is no obligation to

give it in that form.

Fees

Fees are prescribed for grant of access to information under the rule making

powers of the government and the competent authorities. The Act only prescribes

that: -

It should be reasonable so that high fees are not

prescribed for discouraging the requestor.

fee is not levied on BPL persons

additional fee has to be intimated in writing with

calculation details

The decision on fee is appeal able.

The information be given free of cost, if it is not supplied

in the prescribed time limit.

The Central Government has framed the RTI (Regulation of Fee and Cost)

Rules 2005. It prescribes the following rates   

     

Rs.10/- as Application fee       

Rs.2/- per page of A4/A3 size paper        

Actual charge or cost price of larger size paper       

Actual cost or price for samples or models       

Rs.50/- per floppy diskette       

Publication at priced cost or Rs.2/- for each page photocopy       

Inspection of records free for the first hour.       

Rs.5/- for every subsequent hour (or fraction)

The fees is payable by Cash/DD/Banker’s Cheque/Indian Postal Order.

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The Applicant if he is not applying to a Public Authority of the Central

Government should check the rate and mode of payment made by the State

Government/Supreme Court/High Court/ Speaker of the House, as the case may be.

Nothing but the prescribed fee can be charged. Attempts by some PIOs to

include the salary of persons engaged in providing information and other handling

charges have been struck down.

Severability

An innovative and interesting feature of the Act is the tool of severability. If an

application consists of some information which cannot be disclosed under the Act, it

does not mean that the PIO can reject the same. Section 10 ensures that access

would be given to non-exempted information, if such information can reasonably be

separated. In such case, the PIO has to inform: -

that only part of the record requested is being provided

the reasons for the decision

the name and designation of the person giving the decision

the details of the fees

the right of the applicant to challenge the decision.

Third Party Information

It is common that an applicant asks information from a PIO which pertains to

some other individual or Public Authority .i.e. Third Party. Here the requestor is the

First Party and the PIO of the Public Authority to whom the application is made is the

Second Party. Thus if A asks from Police department about source report received

by them about C from Income Tax department, then Income Tax department is the

Third Party.

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Third Party is defined under the Act to mean a person other than the

requestor and the Public Authority to whom the request is made. Section 11 of the

Act provides for calling of representation if any, from the Third Party against

furnishing of any information supplied by and treated by it as confidential.

In such circumstances, PIO gives a written notice to the Third Party, within 5

days of receipt of the application inviting his objection to disclosure, if any. The Third

Party has 10 days to respond. The maximum time limit to supply information in such

cases stretches from 30 days to 40 days. The Third Party is entitled to prefer an

appeal against the decision of the PIO.

Except in the case of “trade or commercial secrets protected by law”,

disclosures involving Third Party information may be allowed, if the public interest in

disclosure outweighs any possible harm or injury to the interests of such Third Party.

If the Third Party is a private individual, the PIO has to be very cautious and should

properly weigh the consequences, as privacy of an individual is important and

protected under Section 8 (1) (j) of the Act.

The CIC has expanded the scope of Third Party consultation by holding that

Sections 7(7), 11 and 7(1) of the Act have to be read together and hence Third Party

is to be consulted both in the case of ordinary and confidential information (Praveen

Bhatt v Western Command). The PIO, despite objection of Third Party, can disclose

the information if he thinks, for reasons to be recorded, that public interest prevails

over the interest of Third Party.

Exemptions

The Act not only lays down the principles of sharing the information, it also

specifies the information which can not be disclosed. Section 8 of the Act provides a

list of 10 categories of exempted information, as follows:

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Section 8(1)(a) - Strategic Interests of the State

Information the disclosure of which would prejudicially affect the sovereignty

and integrity of India, the security, strategic, scientific or economic interests of the

State, relation with the foreign State or lead to incitement of an offence should not

be disclosed. Information relating to supply order of defence equipment , number

and extent of shortage of Air Force pilots , movement of army officers, etc have all

held to be barred u/s 8(1)(a).

Section 8(1)(b) - Contempt of Court

Information expressly forbidden to be published by any court of law or tribunal

or the disclosure of which may constitute contempt of court cannot be shared.

However, it has been made clear that matter being sub-judice is no ground to deny

the information about it unless the court explicitly prohibits the disclosure of the

same.

Section 8(1)(c ) - Parliamentary Privilege

Information, the disclosure of which would cause a breach of privilege of

Parliament or State Legislature is protected from disclosure. Documents to

legislative Committees have been held to be the property of the legislature and

therefore cannot be shared.

Section 8(1)(d) - Competitive Interest of a Third Party

Information including commercial confidence, trade secrets or intellectual

property where disclosure would harm the competitive position of a third Party, is not

to be given, unless there is a larger public interest in disclosure of such information.

Information about Supply orders, Pricing, Patents, R&D, details of security and

surety submitted to Bank are all protected, as they are likely to cause harm to the

competitive position of a Party. In a interesting case, CIC held that a software

developed by National Informatics Centre is protected under 8(1)(d) as it is its

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intellectual property and its disclosure would also harms competitive position of NIC

(N Anbarasan v NIC )

Section 8(1)(e) - The Fiduciary Relationship

Information available to a person in his fiduciary relationship cannot be

disclosed, unless larger public interest warrants the disclosure of such information.

Information received in fiduciary relationship is the information exchanged between

parties based on the confidence that no body else will be privy to it. Examples are

Conduct of examination, marks awarded by experts, taxation and property matters,

ACR, property returns, hospital records, telephone records. In a far reaching

decision the CIC in AP Sharma v MoD held that in case of classified file, those

recordings have a certain confidence that its contents shall not be accessed by

anyone not authorized to access them.

Similarly the ‘Daily Diary’ of the Police containing name of informants,

witnesses etc and the full investigation report cannot be given as a fiduciary

relationship exist between officer ordering enquiry and the Inquiry Officer.

A particular example of fiduciary relation is the writing of Annual Confidential

Report. A person cannot access even his own ACR. To quote from CIC decision in

Gopal Kumar v Army HQ “The ACRs are protected from disclosure because

arguably such disclosure seriously harms interpersonal relationship in a

given organization. Further, the ACR noting represent an interaction based on trust

and confidence between the officers involved in initiating, reviewing or accepting the

ACRs. These officers could be seriously embarrassed and even compromised if

their noting are made public.”

It was held in another service matter appeal that since ACRs themselves are

barred from disclosure, by inference the DPC proceedings are also barred. However

Karnataka and Tripura ICs have allowed access to one’s own ACR and Annual

Property Returns of others. This is because State IC is not administratively and

judicially subordinate to CIC.

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Section 8(1)(f) - Diplomatic Correspondence

Information received in confidence from a foreign Government cannot be

disclosed. The exemption clause is self explanatory.

Section 8(1)(g) - Protecting the Source

Information, the disclosure of which would endanger the life or physical safety

of any person or identity the source of information or assistance given in confidence

for law enforcement or security purposes, is exempted from disclosure. Hence

Source Reports or Investigation reports having information about witnesses or

officers examined can only be disclosed without identifying them.

Section 8(1)(h) - Impeding the Investigation

The Information - (i) which would impede the process of investigation or (ii)

pertains to apprehension or prosecution of offenders is protected from disclosure.

The term investigation is not limited to criminal investigation but has to be

construed broadly to include civil investigation, departmental enquiry/proceeding,

enquiries, search, scrutiny etc (D.L Chandok v CWC).

In the case of Farangi Mal Muteja v Medical Council of India it was held that if

a complaint is under enquiry, information/document connected with the enquiry

could be withheld till the enquiry is completed. However it is incumbent on the PIO

to disclose what action has been taken on complaint of a person to the Police even

if the investigation is pending. After the investigation is over, the report can be

shared blacking out identity of those who deposed against to protect their security

as provided u/s 8(1)(g) of the Act.

Section 8(1)(i)- Cabinet Decisions

Cabinet Papers including records of deliberations of the Council of Ministers,

Secretaries and other officers cannot be demanded. However, after the decision, its

reasons and the material on the basis of which the decisions were taken shall be

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made public. If the cabinet matter pertains to a subject which is protected under any

of the above mentioned clauses of Section 8, than they remain protected even after

the decision is taken.

Section 8(1)(j)-Privacy

Personal information, which would cause unwarranted invasion of the privacy

of the individual, is to be protected unless larger public interest justifies the

disclosure of such information. Such a provision is essential because, unlike

western democracies, there is no law on Privacy in India. Thus no body can ask

about PAN, bank accounts, sources of funds, partnership details, hospital and

telephone records etc of other persons. Recently the Maharashtra IC has directed

Hospital authorities to disclose the medical record of an influential politician who was

shifted from jail to the hospital during his imprisonment. The SIC was of the view

that because of the tendency of influential people taking advantage of law, there is a

public interest in disclosing this personal information.

But where a person avails public fund, there is nothing confidential about it. In

a case CIC said that applicant is entitled to know about LTC claim of an individual

but names, addresses and age of passengers should not be given. However, leave

record is personal information which should only be given if there is a public interest

in disclosure.

In the A.P. Sharma v MOD case, CIC had held that noting in a file classified

as confidential attract the exemption of Section 8(1)(j); and if in a given case it is

decided to disclose noting of a such a confidential file, it has to be done only after

Third party consultation with the officers who have recorded the same on the file.

But the exemptions under Section 8 of the Act are further diluted by the

following provisions

1. Any information that cannot be denied to Parliament and State Legislature

should not be denied to a citizen.

2. The Public Authority is free to disclose any information , even if otherwise

protected from disclosure, if there is public interest in disclosure.

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3. all information about any occurrence, free event or matter which has taken

place, occurred or happened 20 years before the date on which any

request is made, shall become free. In case of dispute about calculation of

the said period, the decision of the Central Government shall be final,

subject to the usual appeals provided for in the Act. This concession does

not hold good in case of exemptions relating to information linked to

sovereignty, integrity and security matters, breach of privilege of

legislature, or cabinet papers, i.e. clauses (a), (c) and (i) of Section 8(1),

As seen, exemptions under Section 8 are qualified. On the contrary,

exemption Under Section 9 is absolute. Information infringing the copyright

subsisting in a person cannot be claimed in any circumstance. However, copyright

belonging to the State does not enjoy the protection.

It has to be understood that RTI Act is a complete code. If information cannot

be denied under Section 8 and 9, it cannot be denied under any other law as RTI

overrides all of them.

Exemption to Certain Organizations

Section 24 (1) provides that the Act shall not apply to the following

intelligence and security organisations established by the Central Government. The

Organizations are:

1. Intelligence Bureau.2. Research and Analysis Wing of the Cabinet Secretariat.3. Directorate of Revenue Intelligence.4. Central Economic Intelligence Bureau.5. Directorate of Enforcement.6. Narcotics Control Bureau.7. Aviation Research Centre.8. Special Frontier Force.9. Border Security Force.10.Central Reserve Police Force.11. Indo-Tibetan Border Police.12.Central Industrial Security Force.13.National Security Guards.

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14.Assam Rifles.15.Shastra Seema Bal16.Special Branch (CID), Andaman and Nicobar.17.The Crime Branch-C.I.D.-CB, Dadra and Nagar Haveli.18.Special Branch, Lakshadweep Police.19.Special Protection Group20.Defense Research and Development Organisation21.Border Road Development Board22.Financial Intelligence Unit, India

At the time of commencement of the Act, only 18 institutions were included

but 4 were added in September 2005. It is to be noted that the defence services viz

the Indian Army, the Indian Navy and the Indian Air Force are not exempted

institutions. States have notified their own agencies.

Even excluded institutions need to appoint PIO and AA as information

pertaining to allegations of corruption and human rights violations is still to be

provided. In the case of information sought in respect of allegations of violation of

human rights, the information has to be provided within 45 days but only after

getting the approval of the IC.

Appeals

The Act provides two channels of appeals against the decision of a PIO– an

internal or ‘first’ appeal to a designated “officer senior in rank’ to the PIO – the

Appellate Authority (AA) and a ‘second’ appeal to the IC.

The AA hears appeals both against the order of PIO and deemed refusal.

Appeals can be preferred within 30 days from the receipt of such a decision or from

the expiry of stipulated time limit in case of deemed refusal. The AA may admit the

appeal after the expiry of the period of 30 days if the appellant was prevented by

sufficient cause from filing the appeal in time. The AA should dispose of the appeal

within 30 days of the receipt of the appeal. Where appeal cannot be decided within

30 days, AA must record the decision for the delay, and decide it within 45 days from

the date of filing of appeal.

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AA cannot entertain any fresh request for information in the appeal

proceedings. For any additional information, not contained in the original request,

the requestor should be advised to file a separate application before the PIO.

Second appeal against the decision of the AA shall lie with the IC, within 90

days from the date on which the decision should have been made or was actually

received. However, the IC may admit the appeal after the expiry of the period of 90

Days, if the appellant was prevented by sufficient cause from filing the appeal in

time. No time limit for disposal has been prescribed for IC.

The IC has the power to require the Public Authority to take any such steps

as may be necessary to secure compliance with the provisions of the Act, including

i) by providing access to information, if so requested, in a particular form.

ii) by appointing a PIO, if not appointed.

iii) by publishing certain information or categories of information

iv) by making necessary changes to its practices in relation to the maintenance, management and destruction of records

v) by enhancing the provision of training on the right to information for its officials

vi) by providing it with an annual report

The most effective power of the IC is its competence to impose penalties

against PIO, recommend disciplinary action against erring public servants and

compensate the requestor.

The decisions of the IC are binding. Section 23 of the Act bars the

jurisdiction of the lower courts. Only the writ jurisdiction of High Court and Supreme

Court can be invoked by parties aggrieved by the decision of the IC.

The appeal procedure before CIC is governed by ‘Central Information

Commission (Appeal Procedure) Rules, 2005’. States have framed their own Rules.

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Generally an appeal should be accompanied by attested copies of the Orders

appealed against and copies of documents relied upon.

Penalty

Penalty can be imposed against the erring PIO in cases where the PIO has,

without any reasonable cause

refused to receive an application , or

has not furnished information within the stipulated time, or

malafidely denied the request for information, or

knowingly given incorrect, incomplete or misleading information ,or

destroyed information which was the subject of the request, or

obstructed in any manner in furnishing the information.

Thus it is to be seen whether the PIO acted in bonafide discharge of his

responsibilities or did it acted mischievously ? A wrong interpretation of the

provisions of the Act will not result in penalties against the PIO if the same was done

under the bonafide exercise of decision. As a general rule, action taken in good faith

are protected under Section 21 of the Act.

The PIO is personally liable to pay penalty. The IC however, is legally bound

to give the PIO a reasonable opportunity of being heard. The scale of the penalty to

be imposed is Rs.250 each day till application is received or information is furnished

subject to the total amount of such penalty not exceeding Rs.25,000/-.

The AA has no power of imposing penalty. It is the exclusive power of IC,

which they have now started using more frequently. Recently CIC imposed a total

penalty of Rs1,25,000/- ( maximum amount of Rs 25,000 in five applications each)

on the PIO of Daulat Ram College of Delhi University.

The Commissions has also started giving compensation to the complainant or

the appellant generally in the form of traveling expenses to the Headquarter of the

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Commission and even daily allowance. At times token damage amount has also

been paid.

While Penalty can be imposed only against PIO, compensation and damage

can be ordered against AA also. Penalty goes into the account of Commission but

compensation and damages are Payable to the complainant or the appellant.

Information Commissions

Information Commission is the guardian of the Act. Section 12 and Section 15

of the Act provide for the constitution of the Central Information Commission and the

State Information Commission respectively to exercise powers conferred on it by

Chapter V (Sections 18-20) of the Act. (1) (18) (19) (20) (21)

The IC consists of the ‘Chief Commissioner’ and such numbers of

‘Commissioners’, not exceeding ten, as may be considered necessary. The

Commissioners have to be eminent persons in the field of law, science and

technology, social service, management, journalism, mass media, administration

and governance. They should not to be associated with politics and business. They

have been given a very high status in protocol in terms of the superior status of the

Commission.

In order to ensure that they are independent of the government, following

safeguards are provided

Selection of the Commissioners by a collegium including Leader

of Opposition

The general superintendence, direction and management of the

affairs of the Commission vest in the Chief Information Commissioner /

State Chief Information Commissioner who shall be assisted by the

respective Information Commissioners.

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Commission exercises its powers without being subjected to

directions by any other authority.

Removal of the Commissioners is possible only on grounds of

misbehavior and incapacity after inquiry by a Supreme Court Judge on a

reference by the President/ Governor, as the case may be.

In addition to appeal, IC can also entertain complaints directly from any

person: -

a) who could not submit a request to a PIO because no PIO has been

appointed, or because the APIO has refused to accept application or

appeal for forwarding to the appropriate authority

b) who was refused access to any information

c) who did not receive response to a request for information or access to

information within the stipulated time limit

d) who has been required to pay an amount of fee which he or she considers

unreasonable

e) who believes that he or she has been given incomplete, misleading or

false information under the Act, and

f) in respect of any other matter relating to requesting or obtaining access to

records under the Act.

Section 18 of the Act further stipulates that while inquiring into a complaint,

the Commission shall have the same powers as are vested in a civil court while

trying a suit under the Code of Civil Procedure, 1908. These powers are with

respect of summoning and enforcing the attendance of persons, compelling them to

give evidence on oath, producing the documents or things, receiving evidence on

affidavit, requisitioning public record etc. No public record can be withheld from it on

any grounds.

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In fact a very interesting feature of the Act is to produce statistics with specific

responsibility on Public Authorities, Government and the IC to do so. The annual

report of the Commission has to be laid before the appropriate legislature.

The Commission also has the power to issue directions to Public Authority. In

the famous case of Dhananjay Tripathi v BHU (the first case where the CIC imposed

the maximum penalty of Rs.25,000/-), it also issued direction regarding moderation

and admission policy of the University. It also directed the University to admit the

applicant, condone his absence and ensure that applicant is not victimized on

account of using the Act.

In the case of R S Chaudhry v UPSC, CIC ruled that silence of the Act on the

power of review to the Commission does not debar IC to exercise it to prevent

miscarriage of justice in procedural matters. The CIC has called itself unique as it is

not just the last court of appeal but has all the powers to see that the right to

information is real. This is because these Commissions are not merely final

adjudicators but are also responsible for the monitoring of all the provisions of the

Act.

Responsibility for Government

Under the Act, the Government is obliged to develop educational

programmes for the public, especially the disadvantaged. It also has the

responsibility of training all the stakeholders. The Act calls on the Governments to

prepare User Guide by December 2006. The Act thus entails huge responsibilities

on the competent authorities, appropriate governments, Public Authorities and their

functionaries.

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Section III

THE REPORT CARD OF THE ACT

Access legislations, all over the world, have brought discomfiture to the

powers that be. The Act has empowered the weak and the vulnerable. Act has been

an important tool in opening doors and discovering information that would otherwise

have remained outside the public domain. It has helped to uphold the spirit of

openness, transparency and accountability in public life.

Success stories are far too many. It was found out that Tony Blair, Prime

Minister of UK, had series of breakfast meetings with a Party donor before a vaccine

contract was awarded without bidding. US was compelled to disclose that 558 men

from 41 countries are in detention at Guantanamo Bay.

The Indian experience is no different. It has given a billion people the right

enjoyed so far by few thousand legislators. The scandals of misuse of PDS ration

have corrected the systems in the exposed places. Ordinary citizens have been able

to secure long delayed pensions, house allotment letters and passports. It has to be

appreciated that the Act is not a redress law but information culled out has

tremendous correcting influence.

People asking for copies of tender documents, estimates, Measurement

Books and even samples have put fear of God in at least some notoriously corrupt

engineering departments in urban areas. Public Sector Organisations are now under

increasing degree of accountability. Have a look at some of the questions they were

made to answer

a) Did the wife of MD accompany him to Triputi for Board meeting and

expenses thereof?

b) No of ACs at MD residence and the monthly electricity bill?

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c) Items (like furniture, ACs, TVs, carpets, curtains etc) for offices/residences

of the past Ministers/officials given by the PSU and were they taken back

after these ministers and officers left the ministry?

So strong is the Act that even legislators are using it. They know that they do

not have to wait for a Session to ask a question and the same has to receive a reply

in a specified time limit.

The Act is also the first legislation which obliges government to introduce

Information Technology in its working. Another remarkable development is that in

the first year of working itself, the High and the Mighty like President Secretariat,

PMO, Supreme Court, CIC, Election Commission, UPSC and other constitutional

and powerful government offices are being made to divulge huge information which

was earlier outside the reach of ordinary citizen.

On the negative side, though too early to say, yet the emerging trend of

usage of the law is not exactly very happy. The Act is frequently being used by

government servants, mostly disgruntled, under disciplinary proceedings and even

dismissed to settle their service matters and by people interested in gathering

evidence in their litigation cases or in finding out whether the property they intend to

purchase is free from encumbrances. The CIC is at pains, in decision after decision,

to explain that the Act is not a mechanism to redress grievances. The public interest,

which the Act, intended to secure, is missing in good number of applications. There

are very few instances where applicants seek policy related information. Such a

selfish and unintelligent use of the Act will defeated the high objectives of the Act.

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Section iv

CONCLUSION

Law is not an end in itself. The implementation has been partial and

inconsistent even in some of the countries with strong legislation and practices .

While in developed countries adequate time to prepare before operationalisation of

the Act was given (Canada -12 months, Australia and New Zealand 9 months, UK-

more than 4 years, Jamaica and Mexico up to 5 years), we straightway plunged into

it despite major handicaps like huge population, tight delivery schedule, absence of

systematic record keeping, lack of training and awfully poor electronic governance.

Another major concern is almost negligible additional budgetary and

manpower support to run such an ambitious law. US spend $1 per US citizen to

administer its access law. How will the Governments in India cope up when the law

reaches the rural area and the poor people? The entire machinery will be simply

overwhelmed.

Without delay, everybody needs to be prepared. Administrative reforms and

capacity building, aimed both at civil servants and general public, should go hand in

hand to cope with the demand for information. Demystification of rules, simplification

of procedures and wordings of official language, public facilitation centers are some

of the immediately required measures. Use of information technology for creating,

storing, communicating and managing government information in a Technology

Mission mode is almost a must for the successful realisation of the objectives of the

Act. The Information Commissions have also to be appropriately funded and staffed.

It is also necessary to bring amendments in Section 5 of the Official Secrets

Act, 1923, Section 123 and 124 of the Indian Evidence Act, 1872, Rule 11 of Central

Civil Services (Conduct) Rules, 1964 so as to remove inconsistencies with the Act

and to avoid unnecessary confusion. Manual of Departmental Security Instructions,

Code of Civil Procedure, 1908 and Code of Criminal Procedure, 1973 should also be

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amended at the appropriate place. Record retention policy of Public Authorities has

also to be suitably brought in tune with the Act.

More than legislative and executive intervention, it is the change in mindset

that should sink in. The work culture has to be so re-oriented that disclosure

becomes the rule and exemption an exception. The citizens also have to realize their

responsibilities. Gergana Jouleva had very nicely said that “Democracy is not an

easy task, neither for the authorities nor for the citizens.”

Indian citizens richly deserve and desperately need a better-governed

country. Right to Information can contribute tremendously in achieving it. The need

of the hour is that all of us should rise above our selfish interest and work sincerely

to secure the best possible implementation of the Act.

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