Affirming the right to know

Print edition : June 17, 2005

The new legislation is the culmination of a sustained campaign. Here, a scene from a street play staged as part of it by theGrahak Shakti Right to Information Cell in Bangalore in September 2004. - V. SREENIVASA REDDY

The new Right to Information Bill, which will replace a 2002 law, is expected to make government functioning more transparent and change the lay person's relationship with the government.

THE Preamble of the Right to Information (RTI) Bill, which was passed in both Houses of Parliament on May 11, says that the legislation is meant "to provide for setting out the practical regime of the right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority..." The Bill, the result of a sustained struggle by grassroots organisations and civil society, is a radical and innovative piece of legislation with the potential to change fundamentally the nature of the relationship between the citizen and the government.

"The RTI Act [to become an Act, the Bill has to get presidential assent] is the culmination of an extraordinary story of the process which has come to its logical conclusion using spaces that democracy has to offer," said Nikhil Dey of the Mazdoor Kisan Shakti Sangathan(MKSS) which has been at the forefront of the right to information movement.

In the Lok Sabha debate that preceded the passing of the legislation, Prime Minister Manmohan Singh acknowledged the role played by the National Advisory Council (NAC) chaired by Sonia Gandhi in bringing into focus the drawbacks of the previous legislation. The Bill, on receiving presidential assent, will replace the weak Freedom of Information Act, 2002, which was not notified in the Central Gazette.

The Right to Information Bill, introduced in Parliament by Suresh Pachauri, Minister of State in the Ministry of Personnel, Public Grievances and Pensions, on December 23, 2004, was referred to a Parliamentary Standing Committee. The committee's report, which made certain recommendations, was tabled in the Lok Sabha on March 21, 2005. The NAC, which had among its members Jean Dreze and Aruna Roy, key figures in the campaign for the right to information, also submitted its suggestions.. In this process, the draft went through a number of changes, the end result being a remarkably progressive piece of legislation that promises to fulfil the United Progressive Alliance government's promise in the UPA's Common Minimum Programme (CMP) to make the right to information more participatory and progressive.

The RTI Bill covers a wide spectrum of bodies and officials from the Central government, the State governments, panchayati raj institutions, local bodies and, significantly, all bodies, including non-governmental organisations (NGOs), that are established, constituted, owned, controlled or substantially financed by the government. By bringing private bodies within the purview of the law, it will ensure that the government collects information from them.

Learning from the mistakes of the previous law, the Bill specifically says that it will come into force 120 days after it is passed; this entails a mammoth task, considering the infrastructure that has to be in place by then. The Bill provides for the constitution of a Central Information Commission with a Chief Information Commissioner and up to 10 Central Information Commissioners (CICs). They will be appointed by a committee consisting of the Prime Minister, the Leader of the Opposition and a Union Cabinet Minister nominated by the Prime Minister. In terms of privileges, an Information Commissioner is on a par with an Election Commissioner.

A similar set-up is envisaged for the State Information Commissions (SICs). The CICs and SICs will have the powers of a civil court, including the power to requisition public records, issue summons for examination of witnesses and documents, receive evidence on affidavits, and summon and enforce the attendance of persons and compel them to give evidence on oath.

Every public authority has to appoint, within a hundred days of the enactment of this legislation, Central and State Public Information Officers (PIOs) who will be in charge of providing information to people requesting information under the legislation. At the sub-divisional and sub-district level, Assistant Public Information Officers (APIOs) may be appointed to perform this function.

The RTI Bill provides for what is called "pro-active disclosure": the PIO must publish a wide variety of information on the particulars of its organisation, functions and duties. This information has to be disseminated widely through the media and through public announcements in the local language.

A person requesting information has to file an application with the PIO or the APIO in a prescribed format. If the applicant is not able to make the request in writing, the PIO or the APIO must help him/her to do so. If the applicant is physically challenged, the PIO or the APIO must assist him/her to access information. The applicant is not required to give reasons for requesting the information or any personal details except contact details.

The Bill prescribes that the PIO can charge a reasonable fee for supplying the information, but there is no charge for applicants who live below the poverty line (BPL).

The PIO must either provide or refuse the information within 30 days of receiving the application. If the application is before an APIO, the time limit is 35 days. However, information that concerns the life and liberty of a person must be provided within 48 hours of the request. If a person fails to get a response from the PIO within the prescribed period, or is aggrieved by the response, an appeal can be filed within 30 days with an officer superior in rank to the PIO. If the appeal is not successful, the applicant has the right to appeal, within 30 days, to the CIC or SIC.

Although the legislation does not provide for criminal liability as a penalty, it has put in place a stringent system of penalties in case the PIO fails to provide the information requested or fails to issue the rejection order within the specified time. The PIO is liable to pay Rs.250 for each day of delay, subject to a maximum of Rs.25,000. The Information Commission can ask the public authority that has denied information to compensate the applicant for any loss incurred. The Information Commission can also recommend departmental disciplinary action against a PIO for intentionally obstructing the furnishing of information, denying or destroying information or providing misleading information.

The RTI Bill has reduced the number of exemptions from disclosure that the previous law provided, though it has now included Cabinet papers and deliberations of the Council of Ministers, Secretaries and other officers in the exempted category. Venkatesh Nayak, Project Coordinator, Right to Information Unit, Commonwealth Human Rights Initiative, said: "The exemption that relates to the deliberations of the Council of Ministers and Cabinet papers could be misused. If information is labelled as a Cabinet paper, does that mean that it will be exempt from the Act? The Bill also exempts Cabinet papers from being disclosed even after 20 years which is not the case in most countries." Barring two categories, information that may affect the sovereignty and integrity of India and information related to Cabinet papers, all other categories of exempted information will be disclosed after a 20-year period. A last-minute amendment led to the exemption of information disclosure which may result in a breach of privilege of Parliament or State legislatures.

But even these exemptions are not absolute and the public authority may allow access to information even if it is exempted if "public interest in disclosure outweighs the harm to the protected interests", a provision that has immense potential. An important feature of the legislation is that it overrides the provisions of the Official Secrets Act, 1923, or any other law that could be used to obstruct access to information. For the first time security forces and intelligence agencies will not be completely exempt from the application of such a law. Citizens can seek information from these agencies in matters relating toallegations of corruption or violations of human rights, subject to the approval of the Information Commission.

The legislation, by including the States in its purview, has prompted questions on the nature of the relationship between the CIC and the SICs. Eight States - Tamil Nadu, Goa, Rajasthan, Karnataka, Maharashtra, Madhya Pradesh, Assam and Jammu and Kashmir - and Delhi already have right to information Acts. The NAC, in its draft, said that in places where State legislation already exists, citizens will be able to decide whether to use the Central or the State Act. This was also the view expressed by Suresh Pachauri.

The right to information is not specified in the Union, State or Concurrent Lists, and is therefore a residuary subject that the Centre is responsible for. In case of any conflict, it is the Central legislation that will prevail. The SICs are to be financed by the States, many of which may not have the resources to set up the commission. The RTI Bill does not specify how much money has been allocated for setting up the mechanisms that the legislation will require.

Another crucial issue is the composition of the information officers. Shekhar Singh, convener of the National Campaign for People's Right to Information (NCPRI), said: "In one stroke the Act has created up to 39 posts on the level of Election Commissioners and around 300 posts of State Information Commissioners on the level of personal secretaries. There has to be pressure to ensure that these do not become soft posts where people after retirement are posted." According to him, the major challenge that lies ahead is in formulating rules that will deal with the nuts and bolts of the legislation. These rules will have to look at processes relating to the receipt of requests, selection and training of staff and developing user-friendly manuals to demystify and publicise information and providing special legal status for information that is accessed.

Although the RTI Bill has encountered resistance from government officials, there is an opinion that it will actually help the government function better. Shekhar Singh said: "If the government is to be in a position to service requests for information under the Act, it will have to start managing information better and this will in turn help the government to function better as officers will begin accessing information in their own offices much faster." The Prime Minister, while speaking on the RTI Bill in Parliament, said that the criminal liability provision had been removed so that civil servants did not view the law as a draconian piece of legislation meant to paralyse government but as an instrument for improving government-citizen interface.

The struggle for a progressive RTI law is not over. The government has shown great political will in enacting the legislation. But the key to utilising the immense potential of the legislation lies in creating the institutions envisaged by the law in the stipulated 120-day period and appointing information officers dedicated to the purpose of this legislation - the pressing need for a more transparent and accountable government.

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