Right to information act, 2005

“A popular Government, without popular information, or the means of acquiring it,

is but a Prologue to a Farce, or a Tragedy; or, perhaps both. Knowledge will
forever govern ignorance; and a people who mean to be their own Governors
must arm themselves with the power which knowledge gives”[1]

INTRODUCTION:

Information is the currency that every citizen requires to participate in the life and
governance of society. Executive at all levels attempts to withhold information to
increase its scope for control, patronage, and the arbitrary, corrupt and
unaccountable exercise of power. Therefore, demystification of rules and
procedures, complete transparency and pro-active dissemination of this relevant
information amongst the public is potentially a very strong safeguard against
corruption. Ultimately the most effective systemic check on corruption would be
where the citizen herself or himself has the right to take the initiative to seek
information from the state, and thereby to enforce transparency and
accountability.

Access to Information (ATI) is an essential step in ensuring transparency and

accountability in government systems and processes. If transparency and
accountability are the imperatives for sustaining democratic governance, access
to information is a vital instrument of societal transformation. When a government
is transparent, there is less chance for corruption and more room for
accountability. That’s why Freedom of Information Acts (FOIAs) are becoming
standard good practice in the international arena.

B.1 Objectives of the Act

Objective of the Act is to establish “the practical regime of 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 constitution of a Central Information Commission and

State Information Commission and for matters connected therewith and incidental

thereto.”1

Transparency and accountability of the public authority therefore are two main

objectives which the Act seeks to achieve. Provisions are therefore society centric

aiming towards the empowerment of people making them participate in the country’s

1
The preamble to the RTI Act, 2005.
democratic process. Survival of a democratic government is highly dependable on the

accountability of the public functionaries. Absence of it breeds unrest and generated

apathy in masses against the system. Accountability can be achieved by providing

information to the people about the functioning of government. It is a prerequisite

towards a real participatory democracy. People can play important role in a

democracy only if it is an open government where there is full access to information

in regard to functioning of government.2

The major objectives of the act can be summed up as following:-

i) Greater Transparency in functioning of public authorities.

ii) Improvement in accountability and performance of the Government.

iii) Promotion of partnership between citizens and the Government in decision

making process; and

iv) Reduction in corruption in the Government departments.

Passing of this Act has been result of strivings of the public spirited citizens

like H. D. Shourie, Aruna Roy, Arvind Kejriwal and many NGOs working for the

betterment of people. The objectives stated above need to be fulfilled in order to

justify the sovereignty granted to the “people of India” by the Constitution, in real

sense.

ORIGIN AND TRENDS:

The first RTI law was enacted by Sweden in 1766, followed by the US, which
enacted its first law in 1966 and then by Norway in 1970. By 1990, the number of
countries with FOI laws climbed to 13. A big step forward was the EU Charter of

2
People’s Union for Civil Liberties v. Union of India, AIR 2003 SC 2363.
Fundamental Rights in 2000, which included both freedom of expression and the
right of access to documents. The Right to information gained power when
Universal Declaration of Human Rights was adopted in 1948 providing everyone
the right to seek, receive, information and ideas through any media and
regardless of frontiers.[2] Also The International Covenant on Civil and Political
rights 1966 says that “Everyone shall have the right to freedom of expression, the
freedom to seek and impart information and ideas of all kind, regardless of
frontiers.[3]

By 2010, more than 85 countries have national-level RTI laws or regulations in

force including the major developing countries like China and India. Of all these,
Mexico has taken the lead with one of the best examples of a well-functioning
FOIA in the world. The law passed in 2002 represents a vital element of Mexico’s
democratic transition, and became a model worldwide. Handling over 200,000
requests in its first five Years, have resulted in Mexico setting a new international
standard for transparency legislation.

HISTORICAL BACKGROUND:
The RTI Laws were first successfully enacted by the state governments —Tamil Nadu (1997),
Goa (1997), Rajasthan (2000), Karnataka (2000), Delhi (2001), Maharashtra (2002), Madhya Pradesh
(2003), Assam (2002) and Jammu and Kashmir (2004).
The Maharashtra and Delhi State level enactments are considered to have been the most
widely used. The Delhi and J&K Right to Information Acts are still in force.
The first draft of the Right to Information Bill was presented to Parliament on 22 December 2004.
After intense debate, more than a hundred amendments to the draft Bill were made between December
2004 and 15 June 2005, when the bill finally passed. The Act came fully into effect on 13 October
2005. The Act covers the whole of India except Jammu and Kashmir. It is applicable to all
constitutional authorities, including the executive, legislature and judiciary; any institution or body
established
or constituted by an act of Parliament or a state legislature. It is also defined in the Act that bodies or
authorities established or constituted by order or notification of appropriate government including
bodies "owned, controlled or substantially financed" by government, or non-Government organizations
"substantially financed, directly or indirectly by funds" provided by the government are also covered in
the Act's ambit.
Ideal Status of Right to Information:
The ideal status the right to information deserves is that of a fundamental right
under our Constitution .With the Constitutional guarantee to conform to, the Act
could have been used as an instrument constituting the requisite authorities,
apart from laying down the quintessential exceptions to granting information,
such as national security and parliamentary privilege.

RIGHT TO INFORMATION IN INDIA:

Right to Information is an integral part of the freedom of speech and expression
enshrined in Article 19(1)(a) of the constitution, which is regarded as the first
condition of liberty. It occupies preferred position in the hierarchy of liberties
giving succour and protection to other liberties. The expression “freedom of
speech and expression” in Article 19(1)(a) has been held to include the right to
acquire information and disseminate the same. It includes the right to
communicate it through any available media whether print or electronic or audio-
visual, such as, advertisement, movie, article or speech, etc.

The Right of information is an inalienable component of freedom of speech and

expression guaranteed by Article 19(1) (a) of Indian constitution.[4] Beside Article
19(1) (a), the other articles which give right to information under Indian
constitution are Articles 311(2) and 22(1). Article 311(2) provides for a govt.
servant to know why he is being dismissed or removed or being demoted and
representation can be made against the order. By way of Article 22(1) a person
can know the grounds for his detention. According to Justice B N Srikrishna –
“Right to information emerges from right to personal liberty guaranteed by article
21 of constitution.”[5]

In order to promote, transparency and accountability in administration, Parliament

passed “Right to Information Bill, 2004 on 15th June, 2005, “The Right to
Information Act” was notified in the Gazette of India on 21st June, 2005, after
repealing the Freedom of Information Act, 2002. The “Right to Information Act”
has become fully operational from 12th October, 2005 so as to enable a citizen of
India to secure access to information under the control of Public
Authorities.[6] The RTI Act mandates timely response to citizen requests for
government information. It applies to all States and Union Territories of India,
except the State of Jammu and Kashmir, which is covered under a State-level
law. Prior to the Act being passed by the Parliament, the RTI Laws were first
successfully enacted by the state governments of Tamil Nadu (1997), Goa
(1997), Rajasthan (2000), Karnataka (2000), Delhi (2001), Maharashtra (2002),
Madhya Pradesh (2003), Assam (2002) and Jammu and Kashmir (2004). Some
of these State level enactments have been widely used. While the Delhi RTI Act
is still in force, Jammu & Kashmir has its own Right to Information Act of 2009,
the successor to the repealed J&K Right to Information Act, 2004 and its 2008
amendment.

SALIENT FEATURES OF RIGHT TO INFORMATION ACT, 2005:

The short title of the legislation has been changed from ‘The Freedom of Information Act’ to
‘Right to Information Act’.

Provides a very definite day for its commencement, i.e. 120 days from enactment.

It defines ‘appropriate Government” as meaning, in relation to a “Public Authority”

established, constituted or owned or substantially financed by funds provided directly or
indirectly or controlled –

1. (i) by the Central Government, the Central Government;

2. (ii) by the State Government, the State Government”.

It shall apply to “Public Authorities” which means any authority or body or Institution of self-
government established or constituted by or under the Constitution; by any law made by the
appropriate Government or, any other body owned , controlled or substantially financed
directly or indirectly by the appropriate Government, and includes non-government
organizations, substantially financed by the Government.

The ambit covers the two Houses of Parliament, State Legislature, the Supreme Court/High
Court/ Subordinate Courts including their administrative offices, Constitutional Authorities like
Election Commission, Comptroller & Auditor General, Union Public Service Commission etc.
Only domestic and foreign private bodies working within the country have been
excluded form the purview of the Act.

All citizens shall have the right to information, subject to the provisions of the Act.

It casts an obligation on Public Authorities to grant access to information and to publish

certain categories of information within 120 days of the enactment. The responsibility about
suo-motu disclosure/publication by public authorities has been considerably enlarged.

The Act lays down the machinery for the grant of access to information. The Public
Authorities are required to designate Public Information Officers and Assistant Public
Information Officers within 100 days of the enactment and whose responsibility it is to deal
with requests for information and also to assist persons seeking information.

Provision has been made for transfer of a request by a public authority to another public
authority wherein the subject matter/information is held by the latter.

A time limit of 30 days has been prescribed for compliance with requests for information
under the Act, which, can be extended to 40 days where third-party interests are involved.

Fee to be reasonable. Also, no fee to be charged from persons who are below poverty line.
Further, information to be provided free of charge where the response time-limit is not
adhered to.

Certain categories of information have been exempted from disclosure under sections 8 and
9 of the Act. The Categories, by way of illustration, include, information likely to affect security
of the State, strategic, scientific or economic interests of the State, detection and investigation
of offences, public order, conduct of international relations and Cabinet papers. Trade or
commercial secrets, information the disclosure of which would cause breach of privilege of
Parliament or State Legislature and personnel information which has no relationship with
public activity and could cause unwarranted invasion of the privacy of any person, are also
exempted from disclosure. However, exemptions provided are not absolute and withholding
of information must be balanced against disclosure in the public interest. Information to be
released event if harm is shown to the public authority if the public benefit in knowing the
information outweighs the harm that may be caused by disclosure.

Subject to 3 exceptions; the Act contains a provision for reveal of information, which is
otherwise, exempted form disclosure under section 8 on completion of 20 years after the
completion of the event.

The Act also incorporates the principle of severability.

Legal frame work of exercise of powers by the Commission defined in the Act.

The Act also provides a two-tier Appellate Forum. First appeal to departmental officer senior
to the Public Information Officer. The second appeal to be made to Commission.

On a request for information being refused, the applicant can prefer an appeal to the
prescribed authority within 30 days of the decision; the time for disposal of appeal being also
30 days extendable to 45 days.
Intelligence and security agencies specified in Schedule-II to the Act have been exempted
form being covered within the ambit of the Act. However, the exemption is not absolute;
agencies shall have the obligation to provide information in matters relating to corruption and
human rights violations.

The jurisdiction of subordinate courts has been barred expressly by section 23 of the Act.

The provisions of the proposed Act have been made overriding in character, so that the
scheme is not subverted through the operation of other minor Acts.

Monitoring and reporting-Act makes a provision to produce statistics to assess its

implementation so that improvements could be effected.

Central Information Commission and State Information Commissions to monitor the

implementation of the Act and prepare an Anneal Report to be laid before Parliament/State
Legislature.

Central Government to prepare programmes for development of ‘information’ regime. FOI

Act, 2002 to be repealed.

The term Information includes any mode of information in any form of record,
document, e-mail, circular, press release, contract sample or electronic data etc.

 Any citizen (excluding the citizens within J&K) may request information
from a ‘public authority’ (a body of Government or ‘instrumentality of
State’) which is required to reply expeditiously or within thirty days.
 Citizens have a right to: request any information (as defined); take copies
of documents; inspect documents, works and records; take certified
samples of materials of work; and obtain information in the form of
printouts, diskettes, floppies, tapes, video cassettes or in any other
electronic mode.
 The Act relaxes the Official Secrets Act of 1889 which was amended in
1923 and various other special laws that restricted information disclosure
in India. In other words, the Act explicitly overrides the Official Secrets Act
and other laws in force as on 15 June 2005 to the extent of any
inconsistency.
 Applicant can obtain Information within 30 days from the date of request in
a normal case. In specific circumstances Information can be obtained
within 48 hours from time of request. If it is a matter of life or liberty of a
person.
 The Act also requires every public authority to computerise their records
for wide dissemination and to proactively publish certain categories of
information so that the citizens need minimum recourse to request for
information formally. The Act, in particular, requires every public authority
to publish 16 categories of information. This includes the particulars of its
organisation, functions and duties; powers and duties of its officers and
employees; procedure followed in the decision making process; norms set
for discharge of its functions; rules, regulations, instructions, manuals and
records, held by it or under its control or used by its employees for
discharging its functions; etc.
 The Act enumerates the types of information(s) that are exempted from
disclosure.[7] However, these exempted information(s) or those exempted
under the Official Secrets Act can be disclosed if public interest in
disclosure overweighs the harm to the protected interest.[8] Also, the
 exempted information(s) would cease to be exempted if 20 years have
lapsed after occurrence of the incident to which the information relates.
 Penalty for refusal to receive an application for information or for not
providing information is Rs. 250/- per day but the total amount of penalty
should not exceed Rs. 25,000/-
 If an applicant is not supplied information within the prescribed time of 30
days or 48 hours, as the case may be, or is not satisfied with the
information furnished to him, he may prefer an appeal to the first appellate
authority who is an officer senior in rank to the PIO. If still not satisfied the
applicant may prefer a second appeal with the Central Information
Commission (CIC)/State Information Commission (SIC) within 90 days
from the date on which the decision should have been made by the first
appellate authority or was actually received by the appellant.

KEY PROVISIONS:

 Section 2(h): Public authorities means all authorities and bodies under
the Constitution or any other law, and inter alia includes all authorities
under the Central, state governments and local bodies. The civil societies
substantially funded, directly or indirectly, by the public funds also fall
within the ambit’
 Section 4 (1)(b): Maintain and proactively disclose information.
 Section 6: Prescribes simple procedure for securing information.
 Section 7: Fixes time limit for providing information(s) by PIOs.
 Section 8: Only minimum information exempted from disclosure
 Section 19: Two tier mechanism for appeal
 Section 20: Provides penalties in case of failure to provide information on
time, incorrect, incomplete or misleading or distorted information.
 Section 23: Lower courts are barred from entertaining suits or
applications. However, the writ jurisdiction of the Supreme Court and high
courts under Articles 32 and 225 of the Constitution remains unaffected.

CONCLUSION:

RTI Act introduced in 2005 has proved to be a strong weapon in the hands of
people, for ensuring transparency in government departments and containing
corruption. It is generally claimed as one of the world’s best law with an excellent
implementation track record. It is one of the most empowering and most
progressive legislations passed in the post Independent India. Most radical
provision of the Act is that the information seeker need not to give any reason for
it or prove his Locus standi. From the day the Act came into force, enlightened
citizenry had stated using the law by making information requests in order get the
police to act or get their entitlements of food grain under public distribution
system or expose the corrupt officials.

On the other hand, it suffers from various inadequacies. The act empowers the
people to gather information, But illiteracy and lack of awareness surely hinders
the objective of the Act. Also, the act lacks necessary teeth for defaulters. In
cases where information has been denied without sufficient cause, the penalty is
not so harsh enough so as to have a deterrent effect on those who do not want to
share information. The task of implementing the law is not without major
challenges. Lack of adequate public awareness, especially in rural areas, lack of
proper system to store and disseminate information, lack of capacity of the public
information officers (PIOs) to deal with the requests, bureaucratic mindset and
attitude etc. are still considered as major obstacles in implementation of the law.

Currently, the RTI Act in India is passing through a decisive phase, much more
needs to be done to facilitate its growth and development.

BIBLIOGRAPHY
1. Kumar Dr. Niraj, Treatise on RIGHT TO INFORMATION ACT, 2005, Bharat

Law House, New Delhi (2007).

2. Chandra Dr. U., Human Rights, Allahabad Law Agency Publications,

Allahabad, 7th Edition (2007).

3. Rao Prof. (Dr.) S. V. Joga, Law Relating to Right to Information, First edition

(2009).

4. Sathe S. P., Right to Information, Lexis Nexis Butterworths.

5. Das P. K., Handbook on The Right to Information Act, 2005, Universal

Publication, 2005 Edition.

6. Shukla V. N., Constitution of India, Eastern book Company, Lucknow, 10th

Edition.

7. Frontline magazine.

8. Nyayadeep.

Online research

 http://www.humanrightsinitiative.org

 http://www.freedominfo.org/

 http://www.parivartan.com/home.asp

 http://www.rti.org.in

 http://www.rtiindia.org

 http://www.pudr.org

 http://www.google.co.in/