THE RIGHT TO INFORMATION ACT, 2005
PREAMBLE
WHEREAS
the Constitution of India has established democratic Republic;
AND WHEREAS
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;
AND WHEREAS
revelation of information in actual practice is likely to conflict with other public interests including
efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information;
AND WHEREAS
it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal;
Now. THEREFORE,
it is expedient to provide for furnishing certain information to citizens who desire to have it.
BE it enacted by Parliament in the Fifty-sixth Year of the Republic of India as follows:—
REPORT:
Part-I OFFICIAL SECRETS
Chapter 2 Official Secrets Act and Other Laws
2.1 Background
The most contentious issue in the implementation of the Right to Information Act relates to official secrets. In a democracy, people are sovereign and the elected government and its functionaries are public servants. Therefore by the very nature of things, transparency should be the norm in all matters of governance.
However it is well recognised that public interest is best served if certain sensitive matters affecting national security are kept out of public gaze.
Similarly, the collective responsibility of the Cabinet demands uninhibited debate on public issues in the Council of Ministers, free from the pulls and pressures of day-to-day politics.
People should have the unhindered right to know the decisions of the Cabinet and the reasons for these, but not what actually transpires within the confines of the ‘Cabinet room’. The Act recognizes these confidentiality requirements in matters of State and Section 8 of the Act exempts all such matters from disclosure.
The Official Secrets Act, 1923 (hereinafter referred to as OSA), enacted during the colonial era, governs all matters of secrecy and confidentiality in governance. The law largely deals with matters of security and provides a framework for dealing with espionage, sedition and other assaults on the unity and integrity of the nation. However, given the colonial climate of mistrust of people and the primacy of public officials in dealing with the citizens, OSA created a culture of secrecy. Confidentiality became the norm and disclosure the exception.
While Section 5 of OSA was obviously intended to deal with potential breaches of national security, the wording of the law and the colonial times in which it was implemented made it into a catch-all legal provision converting practically every issue of governance into a confidential matter.
This tendency was buttressed by the Civil Service Conduct Rules, 1964 which prohibit communication of an official document to anyone without authorization. Not surprisingly, Section 123 of the Indian Evidence
Act, enacted in 1872, prohibits the giving of evidence from unpublished official records without the permission of the Head of the Department, who has abundant discretion in the matter. Needless to say even the instructions issued for classification of documents for security purposes and the official procedures displayed this tendency of holding back information.
2.2 The Official Secrets Act
The Right to Information Act has a non-obstante clause:
“Sec. 8(2): Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests”.
Thus OSA would not come in the way of disclosure of information if it is otherwise permissible under the RTI Act. But OSA along with other rules and instructions may impinge on the regime of freedom of information as they historically nurtured a culture of secrecy and non-disclosure, which is against the spirit of the Right to Information Act.
The Law Commission also recommended consolidation of all laws dealing with national security and suggested a “National Security Bill”.
The first question we have to consider is whether there is a really necessity for a separate consolidated law on the subject, or else whether the aforesaid statutes may be allowed to remain as before. The main advantages of consolidation of statutes are these :-
(1) Consolidation diminishes the bulk of the statute book and makes the law easier for those who have to administer it (including Judges, administrators, the Bar and the litigant public); for they have only one document to consult instead of two or more.
(2) The consolidated Act speaks from one and the same time, and thus the convenience arising from the interpretations of sections of various Acts speaking from different times is avoided. The art of legislative drafting has altered very much during the last century and the language used, the length of the sentences, the arrangement of the clauses and the sections may have to be drastically altered to conform to modern style of drafting. This applies specially to the Foreign Recruiting Act and the Official Secrets Act which will, in any
case, require revision.
(3) Some of the provisions of the earlier Acts may have to be omitted as unnecessary.
In addition to these advantages, there arises an opportunity of incorporating in the new Act some of the provisions of the foreign codes dealing with national security which may be suited for Indian conditions also. For these reasons, we are of the view that there should be a consolidated statute entitled the National Security Act.
The Commission agrees with the recommendation of the Law Commission that all laws relating to national security should be consolidated. The Law Commission’s recommendation was made in 1971. The National Security Act (NSA), subsequently enacted in 1980, essentially replaced the earlier Maintenance of Internal Security Act and deals only with preventive detention. Therefore, a new chapter needs to be added to the NSA incorporating relevant provisions of OSA and other laws dealing with national security.
The Shourie Committee had the following to say about OSA:
“ It is the Official Secrets Act that has been regarded in many quarters as being primarily responsible for the excessive secrecy in government. Its “Catch-all” nature has invited sustained criticism and demand for its amendment. Section 5 of this Act provides for punishment for unauthorized disclosure of Official secrets but omits to define secrets”.
The Shourie Committee recommended a comprehensive amendment of Section 5(1) to make the penal provisions of OSA applicable only to violations affecting national security.
2.3 Governmental Privilege in Evidence
Section 123 of the Indian
Evidence Act, 1872 prohibits the giving of evidence derived from unpublished official records
relating to affairs of State except with the permission of the Head of the Department.
Recommendations:
a.
Section 123 of the Indian Evidence Act, 1872 should be amended to read as
follows:
“123.(1)Subject
to the provisions of this section, no one shall be permitted to
give
any evidence derived from official records which are exempt from public
disclosure under the RTI Act, 2005.
(2)
Where he withholds such permission, he shall make an affidavit containing
a statement to that effect and setting forth his reasons therefor.
(3)
Where such officer has withheld permission for the giving of such evidence, the
Court, after considering the affidavit or further affidavit, and if it so
thinks fit, after examining such officer or, in appropriate cases, the Minister,
orally:
a)
shall issue a summons for the production of the unpublished official records
concerned, if such summons has not already been issued
b)
shall inspect the records in chambers; and
c)
shall determine the question whether the giving of such evidence would
or would not be injurious to public interest, recording its reasons
therefor.
(4)
Where, under sub-section (3), the Court decides that the giving of such evidence
would not be injurious to public interest, the provisions of subsection (1)
shall not apply to such evidence.
Provided
that in respect of information classified as Top Secret for reasons of
national
security, only the High Court shall have the power to order production
of
the records.”
Section
124 of the Indian Evidence Act will become redundant on account of
the
above and will have to be repealed.
Accordingly,
the following will have to be inserted at the appropriate place in
the
Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1973:
“Any
person aggrieved by the decision of any Court subordinate to the High Court
rejecting
a claim for privilege made under section 123 of the Indian Evidence Act,
1872
shall have a right to appeal to the High Court against such decision, and such
appeal
may be filed notwithstanding the fact that the proceeding in which the decision
was
pronounced by the Court is still pending.”
2.4 The Oath of Secrecy
2.4.1 A Union Minister, while
assuming office, is administered an oath of secrecy as follows:
“I will not
directly or indirectly communicate or reveal to any person or persons any
matter which
shall be brought
under my consideration or shall become known to me as a Minister for the Union
except as may be
required for the due discharge of my duties as such Minister.”
A Minister in the State
Government takes a similar oath.
The National Commission to
Review the Working of the Constitution (NCRWC),
“Government
procedures and regulations shrouded in a veil of secrecy do not allow the
clients to
know how their
cases are being handled. They shy away from questioning officers handling
their
cases......In this regard, government must assume a major responsibility and
mobilize skills
to ensure flow
of information to citizens. The traditional insistence on secrecy should be
discarded.
In fact, we
should have an oath of transparency in place of an oath of secrecy”.
Minister is a bridge between the
people and the Government and owes his primary allegiance to the people
who elect him.
The existence of this provision of oath of
secrecy and its administration along with the oath of office appears to be a
legacy of the colonial era where the public was subjugated to the government.
However, national security and
larger public interest considerations of the country’s integrity and
sovereignty may require a Minister or a public servant with sufficient
justification not to disclose information.
But a very public oath of secrecy
at the time of assumption of office is both unnecessary and repugnant to the
principles of democratic accountability, representative government and popular
sovereignty.
Therefore, the obligation not to
disclose official secrets may be built in through an appropriate insertion of a
clause in the national security law dealing with official secrets. If required,
such an undertaking may be taken in writing, thus avoiding public display of
propensity to secrecy.
The Commission is therefore of
the view that the Oath of Secrecy may be dispensed with and substituted by a statutory
arrangement and a written undertaking. Further, keeping in view the spirit of the Act to
promote transparency and as recommended by the NCRWC it would be appropriate if
Ministers on assumption of office are administered an oath of transparency
alongwith the oath of office.
2.5 Exempted Organisations
Recommendations:
a.
The Armed Forces should be included in the Second Schedule of the Act.
b.
The Second Schedule of the Act may be reviewed periodically.
c.
All organizations listed in the Second Schedule have to appoint PIOs.
Appeals
against orders of PIOs should lie with CIC/SICs.
Chapter 3 Rules and Procedures
3.1 The Central Civil Services (Conduct) Rules
1 The Central Civil Services
(Conduct) Rules prohibit unauthorized communication of
information (similar provisions
exist for the state government employees under their respective
Rules).
“11.
Unauthorised communication of information
No Government
servant shall, except in accordance with any general or special order of the
Government or in
the performance in good faith of the duties assigned to him, communicate,
servant or any
other person to whom he is not authorised to communicate such document or
information.
The Shourie Committee examined
this issue and stated as follows:
“ There is a
widespread feeling that the Central Civil Services (Conduct) Rules, 1964, and
corresponding
rules applicable to Railways, Foreign Services and All India Services, inhibit
government
servants from sharing information with public. The accent in these rules is on
denial of information to public. This situation has obviously to change if
freedom of Information Act is to serve its purpose and if transparency is to be
brought about in the system”.
The Commission agrees
with the views of the Shourie Committee. The Central Civil Services (Conduct)
Rules were formulated when the RTI Act did not exist. The spirit of these Rules is to
hold back information. With the emergence of an era of freedom of information, these
Rules would have to be recast so that dissemination of information is the rule and holding back
information is an exception. The Department of Personnel and Training has amended the Civil
Services (Conduct) Rules on these lines in Oct. 2005. However all States need to amend
rules in a similar manner in keeping with the letter and spirit of RTI
Act.
Chapter 4 Confidentiality Classification
Apart from the somewhat
indiscriminate application of OSA to information which was not intended to be secret, a
major contributor to the culture of secrecy in the government is the tendency to classify
information even where such classification is clearly unwarranted.
The Shourie Committee considered
the issue of classification of information and noted:
“A major contributor to the
lack of transparency is the tendency to classify information even where such
classification is clearly unjustified.
There is also the tendency to accord
higher classification than is warranted.
he Manual of Departmental Security
Instructions, issued by the Ministry of Home Affairs, and the Manual of Office
Procedure, which incorporates some of these instructions, do lay down the
criteria and guidelines for classification and specify the authorities
competent to authorise classification gradings viz.
Top Secret, Secret and
Confidential. While the criteria for classification have perhaps necessarily to
be broad, it is desirable, in the interest of a proper approach to
classification that they should be backed up by a suitable illustrative list
for guidance of officers.
While drawing up such a list, the principle to be
adhered to is that
Once information gets a security classification it moves out of
the public domain.
Even the RTI Act respects the need to keep certain information outside the
public domain. Section 8 of the Act lists out the exemptions under which the
PIO need not give information. However it is necessary to harmonise security classification with the
provisions of the Act.
The task of classifying a
document is vital in the larger national interest, and should be handled with great caution as
any security classification denies access of information to public. Therefore only officers
of sufficient seniority should be empowered to classify documents.
Moreover under the
existing instructions, information once classified continues to be so without any time limit.
In other countries, even war secrets are brought into public domain after a lapse of a
specified period, usually 30 years. It is therefore necessary to review such classified documents after a
reasonable period of, say 30 years (the period can be even less in case of some documents).
Those which do not merit classification should then be declassified and kept in the
public domain.
Further, the hierarchy of
security classification needs to be rationalised, reflecting the scheme of exemptions under the
Act and emerging challenges. The Act has listed 11 categories (section 8 and 9) of
exemption wherein information may not be given out. These range from “information,
disclosure of which would prejudicially affect the sovereignty and integrity of India, the security,
strategic, scientific or economic interests of the State, relation with foreign State or lead to
incitement of an offence; to “infringement of copyright subsisting in a person”. The Commission
feels that the classification system should broadly cover each of these categories of
information. It is quite possible that an information falls under two or
more categories of exemptions. In
that case the information should be given the classification
of the higher order among the
exemptions.
Part-II IMPLEMENTATION OF THE RIGHT TO INFORMATION ACT
Chapter 5 Rights and Obligations
5.1 Rights and Obligations Under the Act
1 In order to enforce
the rights and fulfil the obligations under the Act, building of institutions,
organization of information and creation of an enabling environment are
critical. Therefore, the
Commission has as a first step reviewed the steps taken so far to implement the Act as follows:
I. BUILDING
INSTITUTIONS:
a. Information
Commissions
b. Information
Officers and Appellate Authorities.
II. INFORMATION AND
RECORD-KEEPING:
a. Suo motu
declaration under Section 4.
b. Public Interest
Disclosure.
c. Modernizing
recordkeeping.
III. CAPACITY
BUILDING AND AWARENESS GENERATION:
IV. CREATION OF
MONITORING MECHANISMS:
5.2 Building Institutions
1
Information Commissions:
The Act provides for selection of
CIC and SICs in a bipartisan manner, and involves the Leader of the Opposition in the
process. Since the Act is applicable to all three organs of the State, it would be appropriate to
include in the selection committee the Chief Justice of the Supreme Court or High Court as
the case may be. This will inspire public confidence and enhance the quality of the
selection.
The Act allows for dispersal of
Information Commissions to provide easy access to citizens. However neither the CIC nor the SICs have
established offices at places other than the
Capitals. For an overly citizen friendly law to be effectively implemented it is vital to have
easy access in a vast country like ours. The Commission is therefore of the view that the
CIC should be dispersed in atleast 4 regions. Similarly
the SICs in larger States should
be dispersed depending on population density and geographical area.
The Act visualizes a Commission
wherein the Members represent different sections of the society. The State
Governments are still in the process of appointing Information Commissioners, but an analysis of
the background of the State Chief Information Commissioners indicates the
preponderance of persons with civil service background. Members with civil services
background no doubt bring with them wide experience
and an intricate knowledge of
government functioning; however to inspire public confidence and in the light of
the provisions of the Act, it is desirable that the Commissions have a large
proportion of members with non civil services background.
5.3 Designating Information Officers and Appellate Authorities
All Union Ministries/Departments
have designated PIOs thus complying with the stipulation of designating
PIOs. There is however a wide variation in the numbers of PIOs appointed, and the level
of officers appointed Where more than one PIO is appointed for an
office an applicant is likely to face difficulty in accessing the appropriate PIO. Thus it is
desirable to designate a nodal PIO/APIO in such cases.
The Commission also noted that in
GOI the level of PIOs varied from Joint Secretary to Under Secretary. Ideally
the PIO should be of a sufficiently senior rank to be able to access
information and furnish it in an intelligible and useful manner. At the same time the PIO
should be sufficiently accessible to the public.
Therefore the Commission is of
the view that in GOI there should be a uniform pattern of appointing an officer of the
rank of Deputy Secretary/Director as PIO. In respect of attached and subordinate offices
of GOI and State Governments, a uniform prescription of this kind is not possible
because of wide variation in size and scope of functions. However the principle enunciated
above may be adopted while designating PIOs.
While Section 19(1) read with
Section 7(3) (b) implies designating an appellate authority for each PIO, the law
does not specifically provide for designating of appellate authorities as it does in case of
PIOs. As a result there is avoidable confusion about the identification of appellate
authorities. A perusal of the websites of the Union Ministries/ Departments also shows that while
PIOs are invariably notified, this is not the case
with appellate authorities. This
omission needs to be rectified.
5.4 Organising Information and Record Keeping
Pro-active disclosure are often perfunctory and lacking in
substance. This underscores the need for devising
protocols and effective
monitoring of suo motu disclosures.
Even when the suo motu disclosure
is of an acceptable quality the question of its access still remains. While the
present practice of web publication should continue with regular up-dating, there are
inherent limitations in electronic communication. The vast majority of people will
not have access to computers in the foreseeable future. Also a large number of small
public offices and village panchayats are unlikely to be
able to use this mode of
communication. Therefore, a printed priced publication in the local language, revised
periodically (at least once a year) should be available in each public office and supplied on
demand. Such a publication should be available for reference, free of charge. In
respect of electronic disclosures, it is necessary to provide a single portal through which
disclosures of all public authorities under appropriate
governments could be accessed, to
facilitate easy availability of information.
One important class of
disclosures not covered under the Act is public interest disclosure. Interestingly, it is
recognised in many democracies that an honest and conscientious public servant who
is privy to information relating to gross corruption, abuse of authority or grave
injustice should be encouraged to disclose it in public interest without fear of retribution.
Therefore, confidentiality of the whistle blower in such cases if s(he) seeks it as well
as protection from harassment by superiors should be integral to the transparency
regime. The Law Commission, in its 179th report (2001) recommended enactment of Public
Interest Disclosure (Protection) Law. This Commission fully endorses the view and
recommends a suitable legislation to protect whistle blowers. The Commission will make a
detailed study of the subject and make a comprehensive
recommendation in its later
reports on civil service reforms and ethics in governance.
The Tenth Finance Commission took
note of it and recommended special grants to the States for improving
record keeping. Land records are probably the most important public documents in any
governance system.
In many subordinate offices/ agencies of GOI and State
Governments, record keeping procedures often do not exist. And where they exist, they
are rarely followed. In most cases record keeping procedures have not been revised
for decades. Most significantly the practice of cataloguing, indexing and orderly
storage is singularly absent. Even when records are stored, retrieval of intelligible
information is virtually impossible. It is perhaps because of this situation that there is a
tendency to give bulk unprocessed information rather
than a relevant and intelligible
summarization.
Right to Information would be
honoured only if the information exists and when it exists, it is easily retrievable
and intelligible. A combination of measures is required to achieve this: record keeping
procedures need to be developed, reviewed and revised; catalouging, indexing and orderly
storage should be mandatory; all documents need to be converted into rational,
intelligible, retrievable information modules. A road map needs to be made for digitizing of
records.
A permanent mechanism with
sufficient authority, expertise and responsibility needs to be
created in each government to coordinate and supervise proper record-keeping. Therefore an
independent Public Records Office (PRO) should be established in GOI and in each State
Government. Several record keeping agencies already exist in GOI and most states have entrusted
record keeping to State Archives, State Gazetteers and State Record Rooms. These could be
restructured and integrated to constitute the Public Records
Office.
The Public Records Office would
have responsibility to oversee proper record keeping in all public offices including
preparation and up-dating of manuals, modernization and digitization, monitoring,
inspections and other relevant functions. The Public Records Office should function under the overall
guidance and supervision of CIC or SIC, as the case may be.
The Public Records Office would
be a repository of technical and professional expertise in management of public records.
Adequate funding needs to be assured for these agencies. As a one-time measure, the GOI
may allocate one per cent (1%) of funds of the ‘Flagship Programmes’5 for a period of
five years for improving the infrastructure, creating manuals, providing technical support and
establishing Public Records Offices. GOI may have to separately consider
creating a special fund for survey and updating of land records.
5.5 Capacity Building and Awareness Generation
Training programmes:
The
enactment of Right to Information Act is only the first step in promoting transparency in
governance. The real challenge lies in ensuring that the information sought is provided
expeditiously, and in an intelligible form. The mindset of the government functionaries,
wherein secrecy is the norm and disclosure the exception,
would require a revolutionary
change. Such a change would also be required in the mindset of citizens who
traditionaly have been reluctant to seek information.
Bringing about this radical change would require
sustained training and awareness generation programmes.
The Commission’s own experience
in seeking information from select public authorities reveals that even some PIOs are
not conversant with the key provisions of the Act. The Information Commissioner’s Office
in the United Kingdom has published an ‘Awareness Guidance’ series to assist public
authorities and, in particular, staff who may not have access to specialist advice about some
of the issues, especially exemption provisions. This practice may also be adopted in India.
Awareness generation:
The
enactment of the Right to Information Act has led to an intense debate in the media on
various aspects of freedom of information. Despite this, enquiries reveal that level of
awareness, particularly at the grass roots level, is surprisingly low. In order to achieve the
objectives of the Act it would be necessary that citizens become aware of their entitlements and
the processes required to use this right to improve the quality of governance. Awareness
generation so far has been largely confined to government advertisement in print media. An
effective awareness generation campaign should involve multi media efforts including
street plays, television spots, radio jingles, and other mass communication techniques. These
campaigns could be effectively implemented at low cost, once committed voluntary
organizations and corporates with creativity, passion and professionalism are involved.
Recommendations:
a.
Training programmes should not be confined to merely PIOs and APIOs. All
government functionaries should be imparted atleast one day training on
Right to Information within a year. These training programmes have to
be organized in a decentralized manner in every block. A cascading model
could be adopted with a batch of master trainers in each district.
b.
In all general or specialized training programmes, of more than 3 days duration,
a half-day module on Right to Information should be compulsory.
c.
Awareness campaigns may be entrusted to credible non profit organizations
at the State level. They should design a multi media campaign
best suited to the needs, in the local language. The funds earmarked
(as mentioned in para 5.4.11.d) could be utilized for this purpose.
d.
Appropriate governments should bring out guides and comprehensible information
material within the prescribed time.
e.
The CIC and the SICs may issue guidelines for the benefit of public authorities
and public officials in particular and public in general about key
concepts in the Act and approach to be taken in response to information
requests on the lines of the Awareness Guidance Series
referred to above (para 5.5.1).
5.6 Monitoring Mechanism
The
monitoring mechanism apart from exercising a supervisory role, should be able to detect
problems in the process of implementation and trigger corrective measures. This monitoring should
be done at several levels –within the public authority, for a group of authorities in a
territory, for a whole state and the country. Normally monitoring is an inhouse function where the
implementing authority itself monitors the operations. For each department/agency, the head
of the organization will be responsible for monitoring. A
question arises as to which
agency should be at the apex of the monitoring process. An option could be to assign this
task to the nodal department in case of States and the nodal Ministry in case of GOI. However
given their existing functions, no Ministry /Department would be able to devote full
attention to this complex and onerous task.
The Act has created
independent institutions of CIC and SICs, which are of high stature. However under the law
their functions are largely limited to hearing complaints and appeals, and submitting
annual reports. When an independent, full time authority exists under the Act it would be
most appropriate to entrust it with the important responsibility of monitoring the
implementation of the Act. The authority and public confidence these bodies command,
the expertise and insights they acquire, and their propensity to expand citizens
rights for better governance make them ideal institutions to discharge this responsibility.
Need for a coordination
mechanism:
Although the Act is applicable to both the Union and state governments, the field
situation varies from state to state. Moreover the State Information Commissions are
independent of the Central Information Commission. It is likely that many similar issues
crop up before various Information Commissions. It would
be advisable in public interest
if all the Information Commissions can share perspectives and experiences. This would avoid
duplication of efforts, minimize litigation and ensure uniform application of the Act throughout
the country. Similarly, various public authorities are evolving their own methodology
for implementing the Act. Some of the good practices in a state or public authority could
be adapted for use in other public authorities/states also. Also, for a nationwide web based
information dissemination system to work effectively it is necessary to have a strong
coordination mechanism. For the reasons stated above, the CIC would be the ideal institution to
head such a coordinating agency.
Chapter 6 Issues in Implementation
Challenges:
a number of difficulties /impediments were noted:
• Complicated system of accepting
requests.
While accepting applications, Departments insist that cash be paid at the
accounts office. In Ministries, the accounts office and the PIOs office are different and at times
in different locations. The Rules also prescribe that for each extra page of information, Rs. 2
has to be paid, for which the applicant has to go through the same process. The
difficulty would get further pronounced in field offices, many of which do not have provision to
collect cash. Moreover, getting a visitor’s pass to enter a government building results in
unwarranted wait times (especially, when the PIO responsible might not be available owing to a
number of other responsibilities which (s)he handles). Therefore, the process of filing
requests for information needs to be simplified.
• Insistence on demand drafts.
Difficulties in filing applications by post.
Under the existing dispensation,
filing applications by post would
necessarily involve payment of the application fee by way of demand draft or Banker’s cheque.
Therefore there has to be a mechanism by which requests for information are made possible
through post.
• Varying and often higher rates
of application fee.
Different States have prescribed different fees in this regard.
The Tamil Nadu Right to Information (Fees) Rules provides that an application fee of Rs 50
has to be paid for each request. During its public hearing in
Chennai, the Commission was
informed that this high rate of fees discouraged filing of applications under the Act.
Therefore there is a need to harmonise the fee structure.
• Large number of PIOs.
Single Window Agency at District Level:
After
sufficient awareness generation, it is expected that a large number of requests for information would
come to the field level Public Authorities. Presently almost all departments and
agencies of the State Government are represented at the District level. All these offices are
often dispersed and most citizens would be unaware of their location. Under such circumstances it
becomes difficult for an applicant to identify the Public Authority and to locate it.
Therefore it is necessary to have a Single Window Agency, which could receive requests for
information on behalf of the public authorities/PIOs which have jurisdiction
over the district and then
forward them to the respective public authority/PIO. This, apart
from helping the public would
also help in keeping track of the applications.
Subordinate Field Offices and Public Authorities
‘Public authority’ has been
defined as any authority or body or institution of selfgovernment established or constituted by or
under the Constitution, by any other law made by Parliament, by State
Legislatures, and by any notification issued by the appropriate Government, including
institutions substantially funded by the appropriate Government. This would extend the spread of
public authorities to the level of panchayats and village patwaris across the country.
Under Section 5 of the Act,
public authorities have to appoint Public Information Offcers/Assistant Public
Information Officers (PIOs/ APIOs). Different public authorities have adopted different approaches
towards discharge of these responsibilities. For example, the Central Silk Board has
appointed one PIO for the entire organization and a number of APIOs for its Head Quarters as
well as various Field Units. The Income Tax Department has appointed a large number of
CPIOs, mainly at the level of Commissioners at the field
level, leaving the Range offices
generally unattended. Similarly, PIOs are often conspicuous by their absence at the Block and
Taluka levels in the States. In other words, the experience so far suggests that lower tiers
of the Government have neither been considered as Public Authorities nor have PIOs been
designated.
Even a literal
interpretation of the law indicates a considerable overlap between PIOs/APIOs and public authorities.
According to the definition in the Act, lower tiers of field formations should be treated as
Public Authorities. While these tiers of administration may be appointed as APIOs by the
higher authorities of their respective organizations, these tiers per se would also qualify
as Public Authorities for their own internal functioning. This would in turn cast on them the
responsibility of making suo motu disclosure of information
under Section 4 of the Act.
Currently, this is not being done. However, the intention of the Act is to reach a stage where suo
motu disclosure of information by institutions in itself takes care of citizens’ need for
information. Therefore public authorities at the lower end of the administrative and/or
functional hierarchies need to be identified to discharge responsibilities under Section 4
of the Act, as they are closest to the people both physically and functionally.
Application to Non Governmental Bodies:
Under the Act,
a non-governmental body needs to be substantially financed by government to be
categorized as a public authority under the Act. There is however no definition of
“substantially financed.”
A comparison
with laws of other countries reveals interesting facts. Section 5 of the FOI Act (UK) gives
the Secretary of State, power to designate private organisations as public authorities if
either they appear to him to be performing functions of a public nature; or they are carrying
out functions under contract with a public authority which would otherwise be up to
the authority to provide. In case of charities, the UK Act applies only when they are set up
by the Crown, statute or a government department and have at least
one nominee of the
Crown or the government department. A small number of ‘wholly
publicly-owned’
companies are subject to the Freedom of Information Act in UK but the
vast majority of
private companies are not.
6.6.3 The Promotion
of Access to Information Act, South Africa, goes a step further.
“Public
body” means—
(a)
any department of state or administration in the national or provincial sphere
of government
or
any municipality in the local sphere of government; or
(b)
any other functionary or institution when—
(i)
exercising a power or performing a duty in terms of the Constitution or a
provincial
constitution;
or
(ii)
exercising a public power or performing a public function in terms of any
legislation;
Besides, under
Section 50 of the South African Act, it is provided that:
“50.
(1) A requester must be given access to any record of a private body if
(a) that
record is required for the exercise or protection of any rights;”
In the wake of outsourcing
of functions which traditionally were performed by government agencies, it is desirable
that institutions that enjoy a natural monopoly, or whose functions impinge on
citizens’ lives substantially, must come under the provisions of the RTI Act. Also it may be
desirable to define what ‘substantially financed’ would mean, otherwise
different authorities may interpret this in different ways.
Recommendations:
a.
Organisations which perform functions of a public nature that are ordinarily
performed by government or its agencies, and those which enjoy
natural monopoly may be brought within the purview of the Act.
b.
Norms should be laid down that any institution or body that has received 50%
of its annual operating costs, or a sum equal to or greater than Rs.1 crore
during any of the preceding 3 years should be understood to have obtained
‘substantial funding’ from the government for the period and purpose
of such funding.
c.
Any information which, if it were held by the government, would be subject
to disclosure under the law, must remain subject to such disclosure even
when it is transferred to a non-government body or institution.
d.
This could be achieved by way of removal of difficulties under section 30 of
the Act.
Time Limit for Information Beyond 20 Years:
Recommendations:
a.
The stipulation of making available 20-year old records on request should be
applicable only to those public records which need to be preserved for such
a period. In respect of all other records, the period of availability will
be limited to the period for which they should be preserved under
the
record keeping procedures.
b.
If any public authority intends to reduce the period upto which any category
of record is to be kept, it shall do so after taking concurrence of the
Public Records Office as suggested in para 5.4.11.
c.
These recommendations could be implemented by way of removal of difficulties
under Section 30 of the Act.
Mechanism for Redressal of Public Grievances:
In a large
number of cases information sought to be accessed stems from a grievance against a department/
agency. Information is the starting point in a citizen’s quest for justice and is not an end in
itself. Information thus becomes a means to fight corruption and misgovernance or
obtain better services.
Experience has
shown that functionaries/departments tend to be defensive rather than proactive in
redressing a grievance (or even in disclosing information) particularly when it directly
pertains to their conduct (or misconduct). This proclivity underlines the need for an
independent forum to hear complaints into acts of omission and commission, harassment,
corruption etc. which emerge either through information collected under the Right to Information
Act or otherwise. Such an independent body should hear the citizen
and the public
authority, come to an early conclusion about how the complaint can be best redressed, and where
dereliction of duty is established, recommend initiation of disciplinary actions, and also
suggest systemic reforms where required.
A successful
example of this mechanism is the Public Grievances Commission (PGC) set up by the Delhi
Government in 1997. When the Delhi Right to Information Act came into force in 2001,
the PGC was made the appellate authority to decide appeals under the Act. Because of this
arrangement the PGC has become an effective “single window” authority which facilitates
access to information and when required
provides a platform for redressing the
citizen’s grievances as well. The PGC has also
effectively used its statutory
status and authority
under Delhi RTI Act combined with its non-statutory
grievance
redressal powers to
foster systemic reforms.
Taking note of
this successful administrative arrangement, the Commission is of the view that similar
arrangements could be replicated (with suitable modifications) by other states. A beginning
could be made with bigger cities. This can be either a single authority like the PGC or a
separate independent public grievance redressal authority, which works in close coordination
with SIC or district Single Window Agency.
Chapter 7 Application of the Right To Information Act to the Legislature and the Judiciary
The meetings of Legislative Committees, however are generally
not open to the public and media. Nevertheless, most of the functioning of the
Legislature is in full public gaze.
Similarly, all judicial processes are in the public domain and hence
totally transparent. But administrative processes within the courts would have to be brought
within the ambit of this law, at the same time, without
compromising with the
independence and the dignity of the courts.
There is need to bring uniformity in the information
recording systems, introduce standard forms and a better system of classification of
cases. The Act may be used as an instrument to build capacity to evolve efficient systems of
information dissemination.
Legislatures are storehouses
of enormous amount of information on public policies and executive actions. However, there
are two problems.
First the information is disaggregated and not adequately synthesised.
Thus, on the same subject there are several separate documents, often chronologically
arranged, without sectoral linkages.
Second, while information is available to
legislators, it is very hard for citizens to access it.
In order to address these issues, all
information with the legislatures needs to be indexed, catalogued
and computerised, with online
access to all citizens and supply on demand. This access
should be provided as part of the
proactive disclosure requirement under Section 4 of the Act.
Apart from law making, the
Legislature exercises oversight function over the Executive branch. Parliamentary
(Legislative) questions, proceedings of various committees, follow up action on the reports of CAG,
action taken reports submitted by the government are a few vital mechanisms for such
legislative oversight. However, except through media reports, the citizens rarely have direct
access to such information. This lacuna needs to be addressed by making all such information
available to the public both online (electronic) and on demand (print).
Equally important is a
computerised tracking mechanism, so that the legislators as well as the general public can trace
the sequence of events and compliance by the executive agencies on matters like
petitions, CAG reports and action taken on reports of enquiry commissions or House committees.
In most democracies, a major
part of the legislative work is conducted in Committees. As Woodrow Wilson once observed,
“Congress in session is Congress on exhibition; Congress in Committees is Congress at
work”. In India too, most of the important legislative work is conducted in the Committees, away
from partisan influences and transient emotions. However, the work of legislative
committees in India has generally been away from the public and media gaze. With the
regime of transparency being institutionalised, such seclusion of legislative committees is
unsustainable. The spirit of democracy as well as the letter of
law demands that all work of
legislative committees, save on matters exempted from public gaze under the Act for reasons of
state or privacy, should be thrown open to public and media. But there are genuine
concerns relating to public transaction of legislative committees business. At times, in the full
house of a legislature, members tend to play to the galleries to capture media attention, or take
a partisan line or extreme position. The debates in legislatures thus tend to be on predictable
lines, and often polarise society instead of bringing sobriety and moderation. Such moderation
and ability to reconcile conflicting interests are the essential functions of democratic politics.
In Committees, away from the heat of passion, legislators
usually act with great moderation
and bring depth and substance to discussion on public
policy. Bipartisan
consensus and balanced consideration of issues is the hallmark of a Committee’s work.
There could be the risk of this advantage being jeopardised by throwing open the Committee’s
work to public and media.
The Commission
has carefully examined these competing considerations. It is of the considered view that
on balance the dictates of democracy and transparency should prevail. The legislative
parties should evolve a consensus in order to retain the best features of the Committee system even
as the work of Committees is opened to public gaze.
As mentioned
earlier the judicial processes are transparent. Even on the administrative front, the last
decade has seen major strides made by judiciary in use of information
technology for better court
management and providing information to the litigants. In the Supreme Court of India and
all High Courts, fresh cases are filed only before the computerized filing counters; cause lists
are generated automatically by the computer and manual intervention has been eliminated
resulting in generation of Cause List in time without any hurdles; a
software (COURTNIC)8 provides
Supreme Courts’ pending case status information to litigants/advocates
on any node of NICNET; The Supreme Court of India and all the 18 High Courts and their
Benches are fully computerised, and all these courts generate daily and weekly causelists
from the computer servers installed by NIC. The Government of India has approved a
proposal for computerisation of the district and subordinate courts.
A prerequisite
for making the administrative processes in the district and the subordinate courts totally
transparent is their computerisation. This is necessitated because of the sheer volume of records handled.
Furthermore, the records of these courts require scientific storage, indexing and
cataloguing thereby facilitating easy access.
7.11
Recommendations:
a.
A system of indexing and cataloguing of records of the legislatures, which facilitates
easy access should be put in place. This could be best achieved by
digitising all the records and providing access to citizens with facilities for
retrieving records based on intelligible searches.
b.
A tracking mechanism needs to be developed so that the action taken by the
executive branch on various reports like CAG, Commissions of Enquiry and
House Committees is available to legislators and public, online.
c.
The working of the legislative committees should be thrown open to the public.
The presiding officer of the committee, if required in the interest of
State or privacy, may hold proceedings in camera.
d.
The records at the district court and the subordinate courts should be stored
in a scientific way, by adopting uniform norms for indexing and cataloguing.
e.
The administrative processes in the district and the subordinate courts should
be computerised in a time bound manner. These processes should be
totally in the public domain.
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