The Right to Information Act, 2005:

Beware of the road-blocks ahead

At the outset, let me tell you that this Workshop is being held at a critical juncture, when the RTI Act 2005 is already enforced, partially though, since the date of its enactment, 15^th June last and mandated under its Section 1(3) to come into full force on the 120^th day i.e. 12^th of October 2005. In between, the entire process of giving operational shape to the provisions of the Act including the indispensable business of Rule making (as required under Sections 27 and 28) needs to be at any rate completed by the appropriate Governments and competent authorities. Keeping this statutory deadline in view, I would suggest that this very Workshop in stead of debating the pros and cons, the feasibility or otherwise of a legislation, which is already a fait accompli in our national life and an integral part of our statute book, should exercise itself over the moot question of the hour –

(a)               how to ensure that the appropriate Governments and competent authorities as described under Sub-sections (a) and (e) of Section 2 respectively, do frame Rules which effectively plug in the loopholes and the missing links as and where occurring in the original Act from the perspective of its citizen-friendly operationalisation;

(b)               And equally importantly, to identify proactively the probable stumbling blocks that our existing Constitutional-legal structure of governance might throw up by way of reaction as and when the various, radical implications of the new law unfold and assert themselves in course of its implementation in days ahead.       

Above all, a unique law

Whatever may befall its actual fate in future, the RTI Act 2005 shall go down in the annals of India’s legislative reform for its recognition in no uncertain terms certain unique principles of governance as characteristic of a democratic polity, do far denied. It is worth looking into some salient ones- 

• Sovereignty of the citizen- The Act in its Preamble declares all the public authorities of the country to remain transparent and accountable to the citizens in respect of the matters entrusted to each of them. And who are these public authorities? As the Section 2 (h) makes it abundantly clear, any agency or local self-government constituted by or under the Constitution, any law or notification comes under the definition of public authority and for that matter subject to the obligations under this law. Further a conjoint reading of the sub-sections (a) and (e) of the Section 2 that define ‘the Appropriate Governments’ and ‘the Competent Authorities’ respectively leaves no iota of doubt that every top authority, be he President, Prime Minister, Speaker, Chief Justice of Supreme Court, a Governor, an MP, or a Collector shall remain as much accountable to the citizen for disclosing their respective information to the citizens as, say the Gram Panchayat, a Primary School or a Revenue Inspector down below, failing which the citizen can try them before the independent and autonomous body called ‘Information Commission’ as per the procedure laid down under Sections 18, 19 and 20. And the new Act unlike the rest of its kindred enacted in the past puts no restraint penal or otherwise on the citizen’s freedom to seek ‘information’ from these authorities, while obliging the latter under the threat of penal provisions for disclosing information about themselves both suo moto and on a citizen’s request.

• At one stroke, the RTI Act [Vide its Sections 8(2), and 22)] overrides the numerous provisions protecting official secrecy, which are written into a host of our age-old, awe-inspiring statutes, codes and manuals existing since the days of East India Company. Besides the Official Secrets Act 1923 which is explicitly mentioned in the Act itself, such obnoxious provisions, to name a few, are the Sections 123 and 124 of the Evidence Act 1872, Section 9 of the All India Service (Conduct) Rules 1968, Section 11 of the Central Civil Service (Conduct) Rules 1964, Section 11 of the Orissa Government Servants (Conduct) Rules 1959, Section 128 of Orissa Records Manual 1964 and Section 14 of the Chapter 3 of Orissa Secretariat Instructions 1961 to name only a few oft-quoted .  
• The new Act presumes the citizen to be innocent, but the public authority as a potential defaulter. The Section 19(5) of the RTI Act says, “In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or the State Public Information Officer as the case may be.” Again, the Section 20(1) of the Act says, “the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the state Public Information Officer, as the case may be.”. Further more, the Act provides for penalty in terms of monetary fine and service conditions against a defaulting Public Information Officer (Section 20), while awarding compensation, if proved necessary, to the ‘complainant for any loss or detriment suffered’. Thus there is now no ground for any fear or anxiety on the part of a citizen to take to task a public authority on account of the latter’s wrongful conduct in respect of this law.
• A citizen has now the same right as that of a legislator- As well-known, the Section 8 of the RTI Act lays down various grounds of exemption from the disclosure under the Act, such as sovereignty and integrity of the country, foreign relations, contempt of court, privilege of the legislature, cabinet papers and the like. But after such exempted grounds are listed out under the sub-section (1), the saving proviso occurring at its end says, “the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”  Similarly, the subsection 1(i) says, “the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken , and the matter is complete and over”.
• No locus standi of the information seeker required- As all of us experience, quite many petitions by the citizens are not admitted by our public offices and Courts simply on the ground that the petitioner has no substantial connection or interest with the subject matter of the petition. Most of our current laws, rules and codes (For instance, the Forms No.79 and 80 for the Applications for Copies and Inspection as prescribed under the Orissa Records Manual 1964) require an applicant to state the status of the applicant in relation to the piece of information requested, failing which his application shall not be entertained. But the RTI Act 2005 in its Section 6 (2) clearly says, “An applicant making a request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.” So under the new dispensation, any body with whatever level of writing skill he has, can become an advocate for any other person in the matter of securing an information from a public authority, whom the other person due to some handicap or the other might not be able to approach for the purpose.
• No paraphernalia required to make an application- Again, except the application fee to be prescribed, the applicant needs no stamp paper or a given format to apply for the desired information to the Public Information Officer under Section 6 or lodge a complaint against the derelict PIO directly before the Information Commission under Section 18(1). Just a plain sheet of paper and a little writing skill in mother tongue on the part of an ordinary citizen are what are required for the purpose. Not only that. If a person is somehow unable to write the application, the concerned PIO ‘shall render all reasonable assistance to the person making the request orally to reduce the same into writing’ at no extra cost to the applicant. [vide Proviso to Section 6 (1)]. Again, the Section 7(4) says that if the applicant were a sensorily disabled person, the concerned PIO ‘shall provide assistance to enable access to the information, including providing such assistance as may be appropriate for the information’.
• No more ‘holy cows’- On a plain reading, the Act in the first para under Section 24 (1) exempts 18 nos. of the security and intelligence agencies of the Centre as listed under the Second Schedule from the purview of citizen’s right to information. Similarly, the Section 24(4) provides for each State Government to notify a list of such agencies under their control for the said purpose. Thus ordinarily, a citizen won’t have to apply to these agencies for this or that information under the Act. But the proviso commonly added to the said sub-sections under Section 24 clearly says, “….the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section”. Further, ‘such information shall be provided within 45 days from the date of the receipt of the request.” Another proviso to the said sub-sections says that only after the approval of the concerned Information Commission, the requested information can be supplied. So it becomes the job of the enlisted agency itself to get the timely approval or otherwise of the Information Commission for the disclosure of the requested information, so as to comply with the said time limit as specified. Thus, no public authority is absolutely immune from its obligation to disclose information under the Act.
• A citizen can conduct surprise ‘inspection’ into Public Offices and attend meetings thereof:  Needless to say, an average citizen enjoys no legal right per se to enter into a public office, unless allowed specifically for the purpose by the appropriate authority, let alone asking or collecting information from them as and when required. Besides the overarching provisions of Official Secrets Act 1923 which virtually look upon a citizen as the potential enemy of the State, the Orissa Records Manual 1964, which was framed and enforced long after independence, contains an unsavoury provision under its Section 128 (Prohibition of admittance of outsiders into Branches/Sections) that inter alia says, “In no case outsiders should be allowed to access any Branch/Section”. But the RTI Act 2005 jettisons this foul smelling colonial principle by such words in its preamble itself “An Act to provide for setting out a practical regime of right to information for citizens to secure access to information under the control of public authorities’. Not only that. The Act goes further and empowers a citizen. as and when he desires and without giving a prior notice, to ‘inspect’ a public office (Vide Explanation added to Section 4) in regard to 17 categories of information liable to disclosed suo moto by the concerned authority under the Section 4 (1b) of the Act. It goes to the credit of the Ministry of Personnel, GOI that they have proactively published on their website a ‘Template for Information Handbook under the RTI Act’ for every public authority under the Centre or States to follow in getting their respective handbooks/manuals on the enlisted 17 items under Section 4(1b) ready by the 12^th of October, so to say the D-Day of the new Act.
• Meetings of Public Authorities, open to Public:  Further, contrary to the current tradition of every public authority conducting all its meetings in secret, the Act enjoins upon them to announce proactively the logistics of those meetings, which can be instantly attended by the members of the public [vide Section 4(1b- viii}] without giving any prior notice thereabout.                   

 Backlash by the President and Prime Minister

It is ironical that the very Prime Minister Dr.Manmohan Singh, who had described the RTI Act 2005 as a ‘historic’ legislation in course of the debate around it in Parliament during 10-12 May, and the President Dr.A.P.J. Abdul Kalam, who had assented the Act on 15^th June last have meanwhile shrewdly, backtracked from their commitment to see about the Act. First of all, the President while putting his sign of approval to the Act sent a rejoinder to the PM pleading inter alia that the office of President and ‘notings on file’ be kept outside its purview. Needless to say, both these pleas run diametrically counter to the provisions made under Section 2 of the Act. The Section 2 (e) and (h) categorically brings the office of President under the purview of the Act, while the Section 2 (j) leaves no doubt as regards the ‘notings on file’ being subject to disclosure under the Act. The Prime Minister for his part, though not yet yielding to the first plea of the President, has joined in the chorus with Rashtrapati Bhavan with regard to ‘notings on file’. Taking the green signal from the PM, the Ministry of Personnel, which is the nodal agency for Government of India for operationalising the Act at the national level, has arbitrarily redefined the term ‘information’ to exclude ‘the notings on file’ from its purview, as discovered from the FAQ page on their website   Thus the two heads of the State- one de jure and the other de facto- are now out to devour the child they have together given birth to. What does it indicate? As persons of flesh and blood, they are perhaps scared of the rage and wrath that the centuries-old, red-tape Establishment which they happen to head, must have fumed at them in their natural reaction to an enactment that portends to cut them to size at one stroke. We may notice such unbecoming, retrograde backlashes from many more quarters not excluding the judiciary at the least in days to come, since these are but the birth pangs of a new order of governance forcing itself out from the womb of an old, moribund one, the unfailing midwife at the moment being the Right to Information Act 2005. Under the circumstances, it is the civil society at large, who over decades waited with a baited breath for such a new phenomenon to come forth shall have to willy-nilly serve as its faithful nurse-mother in days to come.

Fees and Cost Rules of the Centre: Wise How far ?

Let me just share with you the Government of India’s recently published Rules relating to Costs and Fees under the Act applicable to the public authorities under the Central Government, on which you may like to deliberate here and then reflect back to the concerned Ministry in the form of a rejoinder. For the application fee under Section 6, any non-BPL person has to pay Rs.10/-. If the information be provided in the form of a print-out, Rs.2/- shall be charged against each page. If the applicant asks for a sample or a model, he has to pay the actual cost of the same. In case of a person wanting to inspect an official record, no fee shall be charged for the first hour of his inspection, but for every 15 minutes thereafter, Rs.5/- shall be charged. A flat charge of Rs.50/- shall be claimed for each floppy or CD carrying the information sought The wisdom of the Rules so announced need be judged by the very standards unambiguously stated in the Act itself. For instance, in respect of the mandatory, suo moto disclosures the Section 4(4) says, “All materials shall be disseminated taking into consideration the cost effectiveness, local language and the most effective method of communication in that area and the information should be easily accessible, to the extent possible in electronic format . . . . . available free or at such cost of the medium or the print cost price as may be prescribed.” And in respect of the information to be supplied on request, the proviso to the Section 7(5) says that the fees for application, for supply of information and for electronic medium carrying the information shall be ‘reasonable’.

Barely necessary- a time limit for disposal of the Complaint and Appeal

The Rule makers at both Central and State level should address to a very, very critical and conspicuous lacunae in the Act in the very interest of realising the true intentions of this unique legislation. While there is time-limit provided for disposal of an application for information (ordinarily 30 days –Sec 7) and of the 1^st appeal [ordinarily 30 days- Sec 19(6)], no such time-limit has been stipulated for disposing of a complaint or of a 2^nd appeal made before the Information Commissions under the Sections 18 and 19 respectively. Without such a time-limit to bind the process of adjudication of a case by the Commission, the latter which has been accorded the quasi-judicial status of a Civil Court [Sec 18(3)] and which shall enjoy the benefits more or less equivalent to that of the Election Commission [Sec 13(5) and Sec 16 (5)] shall, whether anybody wants or not, degrade itself in due course to such type of quasi-judicial Commissions in the country as Human Rights Commission, Scheduled Caste and Scheduled Tribe Commission and Lok Pal etc., which though enjoying powers of a Civil Court have utterly failed to provide time-bound redressal to the public grievances and in stead turned white elephants. Worth recollecting is the fact that both Delhi Right to Information Act 2001 and Maharashtra Right to Information Act 2002 provided for a time limit of 30 days for disposal of such appeals by the final appellate authorities such as Public Grievances Commission and Lok Ayukta respectively and such arrangement worked well. There is no earthly reason as to why the RTI Act 2005 which is largely modelled on the Maharashtra Act should miss out its critical provision like time limit for disposal of the final appeal, which is, so to say, indispensable for successful operationalisation of the Act.   

 Acknowledgement Receipt, a must

Only those kinds of information, which couldn’t be made available through the mandatory suo moto disclosures, may be applied for as per the procedure given under the Sections 6 and 7. It goes without saying that besides fixing the application fee and other fees as minimal as possible as expected under the Section 7(5) of the Act itself, the Rules should prescribe the provision for an acknowledgement receipt to be instantly issued to the applicant, which, like an FIR received from a Police Station, would enable him to pursue his case all through, especially when the aggrieved applicant wants to make the first appeal before the departmental appellate authority, or a complaint or the 2^nd appeal before the Information Commission. Happily enough, the Fee and Cost Rules under the Act as recently published by the Central Government categorically provide for the proper receipt to be issued against an application accompanied by the prescribed fee of Rs.10/- . But the said principle of acknowledgement receipt should be followed by both Central and State level authorities in case of all submissions to be made by the citizens by way of application, complaint, first appeal or second appeal, irrespective of the fee required to be accompanied or not.           

 Tardy Progress by the State Government of Orissa

As for the Government of Orissa, which is in fact an independent entity like any other State or Centre, competent enough to makes its own Rules under the Section 27, they though still in a ‘wait and see’ mood, have however made some tangible progress in respect of giving operational shape to some provisions of the Act. The Department of Information and Public Relations has been identified as the nodal agency for the purpose. Apart from the 3 member High level Committee for selection of the Information Commissioners formed under the Chairmanship of the Chief Minister as required under Section 15 of the Act, an 11-member Core Committee of the top officials of the State has been formed and in their first meeting held on 22^nd August 2005 took some decision towards the implementation of the RTI Act in the State. The proceedings of the said meeting are available under the website of the Dept of Information and Public Relations (http://orissagov.nic.in/I&pr/corecom.htm) for every body to see and comment on. By the way, while they have appointed PIOs and APIOs and corresponding departmental appellate authorities under the Act at every level from the Secretariat down to GP, they seem to be oblivious of their bounden obligation under the Section 4 of the Act to arrange for the provision for instant inspection by the intending citizens of the public offices and the 17 categories of records thereof w.e,f. 12^th October ’05.

Information Commissions: a human touch required

A large chunk of the text of the new Act is occupied by the provisions relating to the Information Commissions at Central and State level, which are conceived, so to say, as the very fulcrum of the new information regime. Such Commissions, as the Sections 12 (4) and 15(4) inter alia say, are expected to act ‘autonomously without being subjected to directions by any other authority under this Act’. Once formed, the Information Commissions, being statutory bodies, can’t be dissolved and reconstituted at the sweet will of the ruling party/coalition (Sections 12 to 17), except the extraordinary power of the President and Governor to suspend and dismiss an individual member of the Central Commission or of the State Commission respectively, and that too, on the proven ground of misdemeanour as enquired into and reported by the Supreme Court (Vide Sections 14 and 17). The annual reports on the progress of the RTI Act at national and State level shall be ultimately prepared by these Commissions for presentation to Parliament and State legislatures respectively. More significantly, the said Reports shall also carry recommendations for administrative and legislative reforms necessary for further expanding the citizen’s access to information under this law.

 Besides, the Commissions have sweeping powers to penalise a defaulting Public Information Officer with a fine of Rs.250/- per day upto a maximum of Rs.25,000/- and also with disciplinary action against him ( Section 20). At the same time the Commissions can order a compensation to be paid by the defaulting public authority for the loss or detriment suffered by the applicant citizen under the Section 19(8b). Above all, the Commission apart from being the highest appellate authority under the Act, has the duty to receive directly any complaint from any citizen against the recalcitrant attitude or behaviour of any public authority in respect of the discharge of obligations under the Act (Sec 18).

 Under the circumstances, the Information Commissions to do justice to the multidimensional role (investigative, adjudicative, supervisory, and corrective) expected of them, should be provided with adequate infrastructural facilities including modern gadgets of communication necessary to swiftly contact and converse with the concerned parties in the field as and when need be. Unlike the conventional law courts, the office of the Commissions should also provide for adequate sitting and waiting arrangements for the persons to visit in connection with their complaint or appeal. Unless the performance and propriety of the Information Commissioners match with their perks and powers, the magnificent architecture of an independent and autonomous Commission, as drafted under the Act shall collapse in no time, causing thereby a double disaster to the nation- extravaganza and hypocrisy.   

 Indolent Judges and Speakers

The RTI Act just in the manner of Sections 74 and 76 of the Indian Evidence Act, 1872 embraces the three principal organs of State- executive, legislative and judiciary- that together constitute the sovereign authority of the State, within the purview of the citizen’s right to information. The Section 2 of the Act inter alia declares the Chief Justices of Supreme Court and High Courts and Speakers of Lok Sabha and Bidhan Sabhas as Competent Authorities, who are obliged to frame Rules on the matters specified under Section 28 of the Act to give operational effect to its provisions, applicable to themselves and to all subordinate courts and administrative offices respectively under their control, who are deemed public authorities under the Act. Just read the Section 5(1), that says, “Every public authority shall, within one hundred days of the enactment of the Act, designate as many officers . . . . in all administrative offices under it as may be necessary to provide information to persons requesting for the information under the Act.”  And today is already the 108^th day of the said enactment. Have these competent authorities complied with this obligation under the law even by today ?

As a matter of fact, a common man as of today has no scope to ask a Court as to when the next date of hearing of a case shall come or how long a case shall take to be disposed of. Similarly, no scope exists for him to ask an MLA or MP as to how he spent his LAD fund, or wherefrom his party got money spent in the elections? But the PIOs to be appointed under the RTI Act by these competent authorities can be made to answer these very worrisome questions that keep on eating into vitals of the nation and its citizenry.  

 Draft Rules to be published for public comments before the final notification                                 :The website ( http://persmin.nic.in/RTI/WelcomeRTI.htm ) of the Ministry of Personnel, Public Grievances and Pension, Government of India- the nodal agency for the overall implementation of the Act at national level– has of late published the Rules under the Act as applicable to the public authorities under the Central Government, giving the date of its publication as 16^th of September. They simply call it rules, not draft rules, obviously to avoid inviting any public comments thereon. It is worthwhile to recollect here that the present Government way back in August 2004 last had publicised the draft rules under the now impugned FOI Act 2002 giving the public an interval of a fortnight to comment thereupon. The first and foremost, and so to say, a non-negotiable concern of the alert citizenry at the moment should therefore be to tell the Government that they should invite public opinion on the draft rules before finalising them. As you might know, the Section 24 of the Orissa General Clauses Act 1937 obliges the State Government to invite public views on the draft rules made under an Act before finally notifying the same. And I presume, there must be some such statutory provision for the Government of India too to bind them to such a rudimentary, legislative norm that is barely observable in a democratic polity like ours.

Constitution and Statutes to be made compatible with RTI Act 

Article 74(2) of Constitution: Ironically, the Constitution, which is supposedly the mother of all legislations including the RTI Act itself still remains, thanks to some of its notorious provisions, the prime prop for maintenance of official secrecy at each level of country’s governance. As already mentioned, the President Dr.A.P.J.Abdul Kalam while assenting the RTI Bill in June last, pleaded for excluding the Rashtrapati Bhavan from the purview of the Act on the authority of the Article 74(2) of the Constitution that debars even the Courts to call into question any correspondence between the President and Council of Ministers, let alone a common citizen. Moreover, the same constitutional provision Dr.Kalam keeps on quoting before the Nanavati Commission in support of his denial to disclose what transpired between the former President and former PM in respect of the measures to curb the Gujurat riots of 2002.

 Articles 35 (b) and 372 of Constitution: As is well known, a long list of British made draconian laws like Official Secrets Act 1923 or Evidence Act 1872 that uphold official secrecy could continue in force in the post-independence period, principally because of their sanction by the Constitution itself. For instance, the Article 372 directly provided for ‘continuance in force of existing laws and their adaptation’. Again, peculiarly enough, while the Article 13 (1) occurring under the Part III- Fundamental Rights declared ‘all laws in force .. before the commencement of the Constitution .. in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void’, the Article 35(b) under the said Part made a diametrically contrary stipulation in the following words, ‘any law in force immediately before the commencement of this Constitution . . . . . shall . . . .  continue in force until altered or repealed or amended by Parliament.’

Oath of Secrecy: As everyone knows, a Minister-designate at Centre or in a State, before assuming his office is sworn in an Oath of Secrecy along with an Oath of Affirmation as mentioned under the Third Schedule of the Constitution. Ironically enough, the said Oath binds a Minister not to disclose any official information to any member of the public by whose votes he was elected and then chosen as a Minister as such. It is simply anathematic to think that a Minister who is at one stretch both a leading member of the legislature and as well the executive head of a Government Department should utter such an oath of secrecy, the like of which is not found anywhere in the democratic world even including England which had perfected a regime of secrecy in India during their long colonial rule. Moreover, is it not simply ludicrous to hear that the very Ministers, who legislated the Right to Information for the citizens, should continue to swear by an Oath of Secrecy because it is in the Constitution? The only happy thing is that the National Commission to Review the Working of the Constitution in their Report of 2002 have pleaded for abolishing the Oath of Secrecy and its replacement by an Oath of Transparency.        

 Needless to say, it is the provisions of the Constitution which override a particular Act or Rule, but not the vice versa. So long the Constitution itself contains the explicit provisions for upholding official secrecy and sanctions the continuance in force of the myriad laws old and new that uphold official secrecy, the RTI Act 2005 being a creature of the Constitution, can’t, notwithstanding its Section 22 purporting to override the OSA 1923, possibly effectuate a practical regime of openness and transparency of all public authorities of the country before the citizenry as envisaged in its Preamble. So the contentious provisions as occurring in the Constitution and overarching statutes like IPC 1960, Cr.P.C. 1973, and Evidence Act 1872 should be soon identified and amended, in the interest of much-needed conformity to the letter and spirit of the RTI Act 2005.

(Presented by the author in the Workshop on Right to Information Act 2005 held on 1st of Oct. 2005 under the aegis of Dept of Journalism, Utkal University at Hotel Keshari, Bhubaneswar ) 

Author:Chitta Behera, 4A Jubilee Tower, Choudhury Bazr, Cuttack-9, Mob: 9861091455,

PH: 0671-2623518 Email: chittabehera@rediffmail.com