Right to Information Act, 2005: An Analysis
The Right to Information Act was enacted in 2005 by the Government of India. This was widely praised by the people as it would be a step forward in being more transparent about the working of all the departments and bodies which are being controlled or being funded by the Government of India. The preamble of the Act states that, “democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed”. This act allows citizens to be informed about the Government and to have transparency between the Government is vital, especially in the world’s largest democracy.
It has been said that knowledge is power and without the knowledge about the proper facts and information, the citizen would not be able to partake or understand the policies or would not be able to hold the government liable. In a democracy, the citizen should be able to access any information which affects his participation in a democracy, whether it affects him directly or indirectly. However, departments which deal with the defence and the security of the state do not come under the scope of the Right to Information Act.
The RTI Process
As per the legislation, every office which works as a “public authority” must appoint a Public Information Officer (PIO) and a First Appellate Authority (FAA). An application for information, which is usually known as an RTI Application is filed in the office of the Public Information Officer, who then has to respond to the to the application within a period of 30 days from the date of filing the RTI. Along with the application, a certain amount of fees is charged from the applicant at the time of filing the RTI.
If the information sought by the applicant of the RTI is not received within 30 days of filing the RTI or if the information received is incomplete, he can file an appeal in the office of the First Appellate Authority (FAA) within 30 days of receiving the information if he believes that the provided information is incomplete. If within 60 days of filing the RTI he still does not receive any information, then also he can file an appeal in the FAA. The FAA must come up with an order within 30 days and this time frame of 30 days can be extended to 45 days, if they provide the reasons for the delay, in writing.
Furthermore, if the information is not provided by the FAA after filing the appeal or if the information is not provided within the specified time period by the FAA, then the applicant can file a second appeal in the State or Central Information Commission. This appeal must be filed within 90 days from the date from which the last order has been issued. The CIC is the highest appellate body under the RTI Act.
The Central Information Commission
The CIC have been provided with various powers to effectively implement the RTI Act. It has been given the powers of a Civil Court by the Code of Civil Procedure, 1908 by which it can summon and enforce the attendance of persons and the CIC can also compel them to provide evidence or documents as required which may be required for inspection. It can also summon witnesses for receiving affidavits on evidence or for any other purpose. The CIC also has power to examine any record to which the RTI Act applies along with certain exceptions. The CIC also has the power to award compensation to an application who has suffered a loss or detriment and the concerned public authority is liable to pay the compensation.
The Central Information Commission can also impose penalty on the Public Information Officers in case a public information officer refuses to accept an RTI Application, if the PIO does not responded within the time period specified by the act, if there is a malafide refusal to the RTI Application by the PIO, if the PIO intentionally gives incorrect, incomplete, or misleading information, if the PIO destroys the information which had been sough and if the PIO obstructed in any manner in providing the information.
Low level of awareness amongst the population is one of the major drawbacks of the RTI Act. The Act mandates the government to develop necessary measures to sensitise the public about the Rights contemplated under the Act, specially the weaker section of the society. Even then, much of the population is still unaware of the RTI Act. Another major loophole is regarding the implementation of the Act, under Section 28(1) and Section 29(1), rules are to be made by appropriate government authorities pertaining to implementation of the Act. Similarly, Public Information Offices are to be created to sensitise the public and provide any help with respect to filing of applications. While providing the freedom to different government bodies to create the regulations as per their need is advantageous to a certain extent, the lack of uniform regulations or guide for the whole procedure creates a problem for the person affected. A less talked about yet a major cause of concern is the lack of provisions for the protection of the RTI Activists. Various media reports, time and again, have highlighted the crucial part played by the Activists in the implementation of the RTI Act. It has also pointed out various incidents whereby activists lost their lives, be it the brutal murder of Ms. Shehla Masood or the killings of the whistle-blowers of the Vyapam Scam. Yet, the legislation remains silent on their protection.
State of Uttar Pradesh v. Raj Narain (AIR 1975 SC 865)
In this case, the Supreme Court has held that Article 19(1)(a) not only guarantees freedom of speech and expression, but it also ensures and comprehends the right of the citizens to know, the right to receive information regarding matters of public concern. However, section 8 of the RTI Act contains the exemplary clause of the act. It encompasses 3 clauses which lay down and explains the various types of information and data that have been excluded from the Act. From laying down information related to State sovereignty and integrity to acts done by our armed forces, no right has been handed to the citizens regarding some of the basic information which we all should know.
The Registrar Supreme Court of India v. R S Misra (W.P.(C). No. 3530 of 2011)
In the aforementioned case, the respondent who was a post graduate teacher was removed from his service on the allegations of sexual harassment against him. The respondent then challenged the termination, till it was dismissed by all the forums, from the Central Administrative Tribunal, the High Court and the Supreme Court. Then, the respondent sought the information by the way of an RTI Application, as to why his petition in the Supreme Court was dismissed. Additionally, the respondent claimed that his petition was dismissed against the principles of natural justice.
The petitioner in this case submitted that to access the documents filed by the Judiciary, the mechanism provided under the Supreme Court Rules must be followed and the Supreme Court Rules cannot be overridden by the provisions of the RTI Act. The respondent replied that the Supreme Court Rules and the Right to Information Act, 2005 co-exist and it is up to the citizen to choose under which mechanism he would like to obtain the information.
The bench in this case, stated that the judge speaks through his judgment and orders passed by him and if any party is dissatisfied by the order or the judgement then there are remedies available to the party to challenge the order. Thus, no litigant is allowed to seek information through an RTI application as to find out the reasons on why the Judge made a particular decision.
The PM CARES Fund Case
On the 27th of March 2020, the Prime Minister announced the PM CARES Fund to provide relief to the people due to coronavirus pandemic. The citizens in the country came together and donated money collectively. However, the information regarding the amount cannot be accessed by the citizens. Several RTI queries have been denied by the government claiming PMCARES fund as public charitable trust which does not come under the ambit of Section 2(h) of RTI Act. Public authority is defined as “public authority means any authority or body, or institution of self-government established or constituted by notification issued or order made by the appropriate Government” Given this definition there are several reasons why PM CARES FUND is under the ambit of RTI. The PMCARES fund was established by the government, the press release states that “the government of India has setup PM CARES fund” it was notified by ministry of corporate affairs and pursuant to the definition of public authority, the fund comes under the ambit of section 2(h) of RTI. The definition of “public authority” under Section 2(1) (h) RTI Act does not talk of “deep and pervasive” control. It is enough if it is shown that the authority is “controlled” by the government. Additionally, the government uses its machineries to promote PMCARES fund, the question arises whether the government can do so if it is only a charitable trust. Government appealed Indian diplomats across the world to publicize PMCARES, they have publicized it in Indian embassy websites. Also, an ordinance promulgated states that donations given to PM CARES would be eligible for 100% tax deduction.
The most important point that comes here is the use of domain name “gov.in” by PMCARES fund. According to a circular issued by Ministry of Electronics and Information Technology, only six categories of offices and public authorities can use this domain name, these are Apex offices, Ministries/departments under government of India, State government and government of UTs, Parliament of India, Judicial Bodies, and all other legislative bodies and government institutions. This raises a question on how PMCARES was able to get “gov.in” domain name if it does not fall under any of these categories. Further, the Ministry of Corporate Affairs issued a notice saying “any contribution made by a company to the PM CARES fund shall qualify as Corporate Social Responsibility (CSR).
This concealment of information, which is in public interest, by the government is violation of article 19(1)(a) of the constitution. According to the Supreme Court of India, the right to receive information, which is basically founded on the right to know, is an intrinsic part of the right to freedom of speech and expression enshrined in Article 19(1)(a).
Right to Information is one of the most prominent tools of bringing transparency and accountability of the public authorities. Apart from promoting transparency, it has also helped in bringing down the rampant corruption in the public sector. The Act has affirmed the right of every person to access governmental records and information by guaranteeing a powerful, timely, effective, and affordable mechanism to avail the right to information in a meaningful manner.
Right to Information Act, 2005 (https://rti.gov.in/rti-act.pdf)
Supreme Court Observer (https://www.scobserver.in/the-desk/right-to-information)
Legal Services India (http://www.legalservicesindia.com/)